EXCLUSIVE LICENSE AGREEMENT
EXHIBIT 10.5
THIS EXCLUSIVE LICENSE AGREEMENT, dated as of December 1, 2015 (the "License Agreement"), is entered into by and among Solarflex Corp., a Delaware corporation with offices located at 12 Abba Hillel Silver Street, 11th Floor, Ramat Gan 52506, Israel("Solarflex") and PT Kinerja Indonesia, organized and existing under the laws of Indonesia with offices located at Xx. Xxxxxxxxx, Xx.0X, Xxxxx 00000, Xxxxxxxxx ("PT Kinerja"). Solarflex and PT Kinerja are sometimes referred to individually, as a "Party," and collectively, as the "Parties."
RECITALS
WHEREAS, PT Kinerja owns and controls KinerjaPay, an entity organized under the
laws of Indonesia, that is engaged in e-Commerce, having developed a platform
containing certain intellectual property that facilitates users' buying and
selling activities, provides e-Wallet service that allows users to make payments
on merchant sites, owns a "gamification" platform within KinerjaPay which allows
users to gamify their shopping experience, thereby providing users with an
end-to-end solution for shopping, game playing and saving, among other features
(the "KinerjaPay IP"); and
WHEREAS, Solarflex determined during the last quarter of fiscal 2015 that it was
in its best interests to: (i) cease efforts directed toward its former business
operations of developing, manufacturing and distributing flexible solar cells
designed to increase efficiency of solar energy adsorbent; and (ii) commence
entry into the e-Commerce business utilizing the KinerjaPay IP;
WHEREAS , the Parties have agreed that it was in the best interest of the
Parties that in furtherance of its new e-Commerce business utilizing the
KinerjaPay IP that Solarflex raise equity capital in the minimum amount of
$1,250,000 and a maximum of $2,500,000 (the "Capital Raise") that proceeds of
which shall be devoted to the world-wide marketing and distribution of the
KinerjaPay technology and the KinerjaPay IP; and
WHEREAS, the Parties agreed, that it was in the best interests of the Parties
and the unaffiliated shareholders of Solarflex, including investors pursuant to
the Capital Raise, that Solarflex enter into this License Agreement, subject to
certain closing conditions defined hereinbelow, as well as to: (i) implement a
reverse stock split of the outstanding shares of Solarflex common stock, par
value $0.0001 (the "Common Stock" or the "Shares") on a one-for-thirty (1:30)
basis (the "Reverse Split"); and (ii) change the name of Solarflex Corp. to more
accurately reflect its new business operations (the "Name Change").
NOW, THEREFORE, in consideration of the premises and mutual promises herein
made, and in consideration of the representations, warranties, covenants and
agreements herein contained, and intending to be legally bound hereby, the
Parties agree as follows:
ARTICLE 1
DEFINITIONS
The following terms shall, when used in this License Agreement, have the
following meanings:
"Business Day" means any day other than Saturday, Sunday or a day on which
banking institutions in Dover, Delaware, are required or authorized to be
closed.
"Capital Raise" means the raise by Solarflex of equity funding pursuant to the
terms and conditions of the Reg S Subscription License Agreement.
"Closing" means the completion of the transactions contemplated by and the
satisfaction of the conditions required by or contemplated pursuant to this
License Agreement.
"Common Stock" or "Shares" means the shares of common stock of Solarflex, par
value US$0.0001.
"Company Business" means the business of KinerjaPay as presently conducted and
conducted as of the Closing.
"Documents" means the Exhibits, Schedules and any other documents, instruments
and certificates to be executed and delivered by the Parties hereunder.
"Effective Date" means the date FINRA approves the Reverse Split and the Name
Change.
"Encumbrance" means any mortgage, pledge, lien, encumbrance, claims, easements,
charge, indentures, deed of trust, security interest, security agreement,
conditional sale or other title retention agreement, limitation, option,
assessment, restrictive agreement, restriction, adverse interest, restriction on
transfer or exception to or material defect in title or other ownership interest
(including restrictive covenants, leases and licenses, right of first refusal)
or any other encumbrances and other restrictions or limitations on ownership or
use of real or personal property or irregularities in title thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder.
"Exclusive License" or "License" means the exclusive world-wide rights to
commercially exploit the KinerjaPay IP and related KinerjaPay technology in
consideration for the payment to PT Kinerja of Royalties equal to one (1%)
percent of the revenues generated by Solarflex, on a consolidated basis, from
the commercial exploitation of the KinerjaPay IP and the related KinerjaPay
technology.
"Fundamental Representations" means, with respect to Solarflex, the Solarflex
Representations set out in Article 4; and; with respect to PT Kinerja the
Representations regarding KinerjaPay and the KinerjaPay IP set out in Article 5.
"KinerjaPay" means an ecommerce marketplace that facilitates users’ buying and
selling activities and also provides the convenience of ewallet service that
allows users to make payments easily to merchants that are affiliated with
Solarflex.
"KinerjaPay IP" means the intellectual property of KinerjaPay utilized
exclusively by and on the website, XxxxxxxXxx.xxx.
"KinerjaPay IP Assets" means all properties, assets, privileges, powers, rights,
titles, interests, resources, valuables, securities and claims of every type and
description, wherever located, whether known or unknown, tangible or intangible,
accrued or non-accrued, current or otherwise, liquid or non-liquid, fixed or
otherwise, whether or not owned, leased, held or used, by KinerjaPay related to
the KinerjaPay IP, now or on the Closing.
"Law" means all U.S. and non-U.S. laws, ordinances, rules, regulations,
declarations, directives, legislative enactments, judgments, injunctions,
standards, codes, limitations, restrictions, conditions, prohibitions, notices,
demands or other requirements or determinations of a governmental authority or
an arbitrator, if any.
"Legal Requirement" means any statute, ordinance, law, rule, regulation, code,
injunction, judgment, order, decree, ruling, or other requirement enacted,
adopted or applied by any regulatory authority, including judicial decisions
applying common law or interpreting any other Legal Requirement.
"Liability" means any liability or obligation (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for taxes.
"Losses" shall mean all damages, awards, judgments, assessments, fines,
sanctions, penalties, charges, costs, expenses, payments, diminutions in value
and other losses, however suffered or characterized, all interest thereon, all
costs and expenses of investigating any claim, lawsuit or arbitration and any
appeal therefrom, all actual attorneys', accountants' investment bankers' and
expert witness' fees incurred in connection therewith, whether or not such
claim, lawsuit or arbitration is ultimately defeated and, subject to all amounts
paid incident to any compromise or settlement of any such claim, lawsuit or
arbitration.
"Material Adverse Effect" means a material adverse effect on: (i) the Assets,
Liabilities, properties or business of the Parties; (ii) the validity, binding
effect or enforceability of this License Agreement and/or the transactions
contemplated hereby; or (iii) the ability of any Party to perform its
obligations under this License Agreement and/or the transactions contemplated
hereby.
"Maximum Offering" means a sum of $2,500,000 under the Capital Raise pursuant to
the Reg S Subscription Agreement
"Minimum Offering" means the sum of US$1,250,000 under the Capital Raise
pursuant to the Reg S Subscription Agreement.
"Name Change" means the change in the name of Solarflex Corp. pursuant to the
filing with the SEC of an Information Statement on Schedule 14C, subject to the
approval of FINRA.
"Person" means any natural person, corporation, partnership, trust,
unincorporated organization, association, limited liability company, Regulatory
Authority or other entity.
"Reg S Subscription Agreement" means that certain subscription agreement by and
between Solarflex and Subscribers, pursuant to Regulation S promulgated by the
SEC under the Act, in the form to be attached as an Exhibit B.
"Regulatory Authority" means: (i) the United States; (ii) any state,
commonwealth, territory or possession of the United States and any political
subdivision thereof (including counties, municipalities and the like); (iii) any
foreign (as to the United States) sovereign entity and any political subdivision
thereof; or (iv) any agency, authority or instrumentality of any of the
foregoing, including any court, tribunal, department, bureau, commission or
board.
"Representative" means any director, officer, employee, agent, consultant,
advisor or other representative of a Person, including legal counsel,
accountants and financial advisors.
"Reverse Split" means the consolidation of thirty (30) Shares of Common Stock
into one (1) Share of Common Stock pursuant to the filing with the SEC of an
Information Statement on Schedule 14C , subject to the approval of FINRA.
"Royalties" means the payment payable by Solarflex to PT Kinerja in
consideration for the grant of the License, in an amount equal to one (1%)
percent of the revenues generated by Solarflex, on a consolidated basis, from
the commercial exploitation of the KinerjaPay IP and the related KinerjaPay
technology.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" or "Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Services Agreement" means the agreement to be entered into between the Parties
at or prior to the Closing for, among other services, those provided in Article
2 and Section 2.01(b) and such other services as may be appropriate in order for
Solarflex to commercially exploit the KinerjaPay IP and the related KinerjaPay
technology to the maximum potential.
"Subscribers" means those certain non-U.S. investors with whom Solarflex has
entered or shall enter into Reg S Subscription Agreements in accordance with the
terms set forth in Exhibit B, as may be amended, from time-to-time and to the
extent required, immediately prior to the Closing.
ARTICLE 2
THE LICENSE
2.01 Subject to the terms and conditions of this License Agreement, at the
Closing, PT Kinerja shall grant to Solarflex:
(a) the License, on an exclusive, world-wide basis and all rights related
thereto and facilitate the ability to of Solarflex to commercially exploit the
KinerjaPay IP and the e-commerce payment portal website, "XxxxxxxXxx.xxx," that
offers users the convenience of e-Wallet service for xxxx transfer and online
shopping, the advantages, compared to other such services lies in its
functionality and gamification features. because it is the first portal to allow
users the convenience to top-up phone credit (commonly termed as "Pulsa" in
Indonesia), in real time via web or Android apps and also the only website that
embeds fun and rewarding gamification features that reward users as they play
along the games on its site; and
(b) access to key professionals, employees and other personnel of KinerjaPay and
PT Kinerja to permit Solarflex to further develop and commercially exploit the
License to the KinerjaPay IP, to the maximum business potential, on an
exclusive, world-wide basis, commencing initially in Indonesia, in consideration
for the Services Agreement between the Parties containing such terms and
conditions as the Parties may agree.
2.02 In consideration for the grant of the License, Solarflex shall pay PT
Kinerja Royalties in an amount equal to one (1%) percent of the revenues
generated by Solarflex, on a consolidated basis, from the commercial
exploitation of the KinerjaPay IP and the related KinerjaPay technology. The
Royalties shall be paid on a schedule to be determined by the Boards of
Directors of Solarflex and PT Kinerja prior to or at the Closing.
ARTICLE 3
THE CLOSING
3.01 The closing of the transactions contemplated by this License Agreement
("Closing") shall take place within five (5) Business Days following : (i) the
Effective Date of the Reverse Split and Name Change; and/or (ii) the successful
Capital Raise of not less than the Minimum Offering.
3.02 On or prior to the Closing, Solarflex shall file with the SEC all
disclosures that might be determined by SolarFlex' counsel and auditors as may
be necessary and appropriate including but not limited to full Form 10 disclose,
as that term is defined under the Exchange Act.
3.03 At the Closing, the transactions that shall occur shall be deemed to take
place simultaneously and no transaction shall be deemed to have been completed
until all such transactions have been completed (unless waived in writing by the
Parties hereto).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SOLARFLEX
Solarflex represents and warrants to PT Kinerja that the statements contained in
this Article 4 are true and correct as of the date of this License Agreement and
as of the Closing:
4.01 Organization and Qualification. Solarflex is duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite power and authority to own, lease and use its assets as they are
currently owned, leased and used and to conduct its business as it is currently
conducted. Solarflex is duly qualified or licensed to do business in and are in
good standing in each jurisdiction in which the character of the properties
owned, leased or used by them or the nature of the activities conducted by them
make such qualification necessary, except any such jurisdiction where the
failure to be so qualified or licensed would not have a Material Adverse Effect
on Solarflex or a Material Adverse Effect on the validity, binding effect or
enforceability of this License Agreement or the ability of Solarflex to perform
its obligations under this License Agreement.
4.02 Capitalization. The authorized share capital of Solarflex at the date of
this exclusive License Agreement consists and, at the Closing, shall consist of
500,000,000 Shares of Common Stock. At the Closing there will be no more than
6,300,000 post-Reverse Split Shares outstanding as of the Effective Date of the
Reverse Split, constituting all of the issued and outstanding share capital of
Solarflex, excluding the of Shares of Common Stock issuable to Investors under
the Reg S Subscription Agreement. All of the issued and outstanding shares of
Solarflex Common Stock have been duly authorized and are validly issued, fully
paid and non-assessable. Notwithstanding the foregoing, the Parties understand
and agree that in connection with the filing by Solarflex of the Certificate of
Amendment to the Certificate of Incorporation with the State of Delaware to
implement the Reverse Split and the Name Change, Solarflex also intends to amend
it authorized capital stock to include 10,000,000 shares of preferred stock, par
value $0.0001 (the "Preferred Stock") that Solarflex' Board of Directors has the
authority and which may be issued in one or more series, and to fix the number
of shares and to determine the rights, preferences and privileges thereof,
including special voting and other rights.
4.03 Authority and Validity. Solarflex has all requisite power to execute and
deliver, to perform its obligations under, and to consummate the transactions
contemplated by, this License Agreement, and has received any such consents,
approvals or authorizations necessary for the foregoing. The execution and
delivery by Solarflex, the performance by Solarflex of its obligations under and
the consummation by Solarflex of the transactions contemplated by, this License
Agreement and any subsequent Services Agreement have been duly authorized by all
requisite action of Solarflex. This License Agreement has been duly executed and
delivered by Solarflex and (assuming due execution and delivery by PT Kinerja)
is the legal, valid, and binding obligation of Solarflex enforceable against it
in accordance with its terms. Upon the execution and delivery of the transaction
documents by the Parties to this License Agreement to execute, or that does
execute, this License Agreement or any of the transaction documents, and
assuming due execution and delivery thereof by PT Kinerja, the transaction
documents will be the legal, valid and binding obligations of Solarflex,
enforceable against it in accordance with their respective terms.
4.04 No Breach or Violation. Subject to obtaining the consents, approvals,
authorizations, and orders of and making the registrations or filings with or
giving notices to Regulatory Authorities and Persons identified herein, the
execution, delivery and performance by Solarflex of this License Agreement and
the transaction documents and the consummation of the transactions contemplated
hereby and thereby in accordance with the terms and conditions hereof and
thereof, do not and will not materially conflict with, constitute a material
violation or breach of, constitute a material default or give rise to any
material right of termination or acceleration of any material right or
obligation of Solarflex under, or result in the creation or imposition of any
Encumbrance upon Solarflex, Solarflex' Assets, Business and/or share capital.
4.05 Consents and Approvals. To the best of Solarflex' knowledge, no consent,
approval, authorization or order of, registration or filing with, or notice to,
any Regulatory Authority or any other Person is necessary to be obtained, made
or given by Solarflex in connection with the execution, delivery and performance
by Solarflex of this License Agreement or any Transaction Document or for the
consummation by Solarflex of the transactions contemplated hereby or thereby,
except to the extent the failure to obtain any such consent, approval,
authorization or order or to make any such registration or filing would not have
a Material Adverse Effect on Solarflex.
4.06 Intellectual Property. Solarflex has good title to or the right to use all
material company intellectual property rights and all material inventions,
processes, designs, formulae, trade secrets and know-how necessary for the
operation of Solarflex Business.
4.07 Compliance with Legal Requirements. Solarflex has operated Solarflex
Business in compliance with all material Legal Requirements applicable to
Solarflex except to the extent the failure to operate in compliance with all
material Legal Requirements would not have a Material Adverse Effect on
Solarflex.
4.08 Financial Statements and Disclosure. The Solarflex' financial statements,
including the notes thereto ("Solarflex Financial Statements") have been
prepared, to the best of Solar flex’s Knowledge, in accordance with GAAP applied
on a consistent basis throughout the periods covered thereby (except as may be
indicated in the notes thereto) and present fairly in all material respects the
financial condition of Solarflex and its results of operations as of the dates
and for the periods indicated (except as may be indicated in the notes thereto),
subject in the case of the interim unaudited financial statements only to normal
year-end adjustments and the omission of footnotes. The Solarflex Financial
Statements and other contained in the Solarflex filings under the Exchange Act
(the "Exchange Act Reports") are true and correct in all material respects.
4.09 Ordinary Course. Solarflex conducted its business and kept its books of
accounts, records and files, substantially in the same manner as previously
conducted.
4.10 Litigation. As of the date of this License Agreement: (i) there are no
outstanding judgments or orders against Solarflex or Solar flex’s Assets; (ii)
there is no action, suit, complaint, proceeding or investigation, judicial,
administrative or otherwise, that is pending or, to the knowledge of Solarflex ,
threatened that, if adversely determined, would have a Material Adverse Effect
on Solarflex.
4.11 Taxes. Solarflex has duly and timely filed in proper form all Tax returns
for all Taxes required to be filed with the appropriate Regulatory Authority,
except where such failure would not have a Material Adverse Effect on Solarflex.
4.12 Books and Records. The books and records of Solarflex accurately and fairly
represent Solarflex Business and its results of operations in all material
respects. All accounts receivable and inventory of Solarflex Business are
reflected properly on such books and records in all material respects.
4.13 Brokers or Finders. No broker or finder has acted directly or indirectly
for Solarflex in connection with the transactions contemplated by this License
Agreement, nor has Solarflex incurred any obligation to pay any brokerage or
finder's fee or other commission in connection with the transactions
contemplated by this License Agreement.
4.14 Disclosure. No representation or warranty of Solarflex in this License
Agreement or in the transaction documents and no statement in any certificate
furnished or to be furnished by Solarflex pursuant to this License Agreement
contained, contains or will contain on the date such agreement or certificate
was or is delivered, or on the Closing, any materially untrue statement of a
fact, or omitted, omits or will omit on such date to state any material fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PT KINERJA
PT Kinerja represents and warrants in respect to itself on behalf of KinerjaPay,
that the statements contained in this Article 5are true and correct as of the
date of this License Agreement, and will be true and correct as of the
respective Closing date:
5.01 Title to KinerjaPay IP. PT Kinerja has good and valid title to, and is the
sole lawful owner, beneficially and of record, of all of KinerjaPay IP which is
defined to mean all of the intellectual property of KinerjaPay utilized
exclusively by and on the website, XxxxxxxXxx.xxx., free and clear of any and
all Encumbrances. PT Kinerja has sole power and authority to grant the License
and with respect to all of the matters set forth in this License Agreement and
the transactions contemplated hereby. The KinerjaPay IP referred to above is not
subject to any other third-party agreement or other agreement or understandings
relating to the License or the disposition thereof.
5.02 Authority and Validity. PT Kinerja has all requisite power to execute and
deliver, to perform its obligations under, and to consummate the transactions
contemplated by, this License Agreement, and has received any such consents,
approvals or authorizations necessary for the foregoing. The execution and
delivery by PT Kinerja, the performance by PT Kinerja of its obligations under,
and the consummation by PT Kinerja of the transactions contemplated by, this
License Agreement have been duly authorized by all requisite actions. This
License Agreement has been duly executed and delivered by PT Kinerja and
(assuming due execution and delivery by Solarflex) is the legal, valid, and
binding obligation of PT Kinerja enforceable against it in accordance with its
terms. Upon the execution and delivery of the transaction documents by PT
Kinerja that is required by this License Agreement to execute, or that does
execute, this License Agreement or any of the transaction documents, and
assuming due execution and delivery thereof by Solarflex, the transaction
documents will be the legal, valid and binding obligations of the Seller,
enforceable against it in accordance with their respective terms.
5.03 No Breach or Violation. Subject to obtaining the consents, approvals,
authorizations, and orders of and making the registrations or filings with or
giving notices to Regulatory Authorities identified herein, the execution,
delivery and performance by PT Kinerja of this License Agreement and the
transaction documents and the consummation of the transactions contemplated
hereby and thereby in accordance with the terms and conditions hereof and
thereof, do not and will not materially conflict with, constitute a material
violation or breach of, constitute a material default or give rise to any
material right of termination or acceleration of any material right or
obligation of PT Kinerja.
5.04 Finder’s Fees. No broker or finder has acted directly or indirectly for PT
Kinerja or any of its affiliates in connection with the transactions
contemplated by this License Agreement, and neither PT Kinerja, nor any of its
affiliates has incurred any obligation to pay any brokerage or finder's fee or
other commission in connection with the transaction contemplated by this License
Agreement.
5.05 Securities Laws. Subject to and without derogating from Solarflex'
representations and warranties set out in Article 4 in(including, without
limitation, Solarflex' representations and warranties relating to the
Solarflex's Exchange Act Reports, PT Kinerja and its affiliates have acquired
sufficient information about Solarflex (through the review by them of Solarflex’
Exchange Act Reports filed with the Commission under the Exchange Act) to reach
an informed and knowledgeable decision to enter into this License Agreement and
the transactions contemplated hereby.
ARTICLE 6
SOLARFLEX MANAGEMENT
6.01 Board of Directors. The board of directors of Solarflex (the "Solarflex
Board"), at the date of this License Agreement and as of the Closing, shall be
comprised of 2 board members, Xxxxxx Xxxxx, Director, and Xxxxx Xxxxxxx Xx,
Chairman.
6.02 Solarflex Management. At the Closing, PT Kinerja and the Solarflex Board of
Directors shall designate a person to serve as the chief executive officer of
Solarflex, and Xx. Xxxxx shall continue to serve as the chief financial officer
of Solarflex.
6.03 Solarflex Charter Documents. The provisions set out in this Article 6 and
the other provisions of this License Agreement, including the implementation of
the Reverse Split and the Name Change shall be reflected in the Certificate of
Amendment to the Solarflex Certificate of Incorporation filed with the State of
Delaware and the Amended and Restated Bylaws of Solarflex.
ARTICLE 7
CONDITIONS PRECEDENT TO OBLIGATIONS OF SOLARFLEX
All obligations of Solarflex under this License Agreement shall be subject to
the fulfillment at or prior to Closing of each of the following conditions, it
being understood that Solarflex may, in its sole discretion, to the extent
permitted by applicable Legal Requirements, waive any or all of such conditions
in whole or in part.
7.01 Accuracy of Representations. All representations and warranties of PT
Kinerja contained in this License Agreement, the transaction documents and any
certificate delivered by PT Kinerja at or prior to Closing shall be, if
specifically qualified by materiality, true in all respects and, if not so
qualified, shall be true in all material respects, in each case on and as of the
Closing with the same effect as if made on and as of the Closing, except for
representations and warranties expressly stated to be made as of the date of
this License Agreement or as of another date other than the date of Closing and
except for changes contemplated or permitted by this License Agreement.
7.02 Covenants. PT Kinerja shall, in all material respects, have performed and
complied with each of the covenants, obligations and agreements contained in
this License Agreement and the transaction documents that are to be performed or
complied with by them at or prior to Closing.
7.03 Consents and Approvals. All consents, approvals, permits, authorizations
and orders required to be obtained from, and all registrations, filings and
notices required to be made with or given to, any Regulatory Authority or Person
as provided herein shall have been obtained.
7.04 Delivery of Documents. PT Kinerja shall have delivered, or caused to be
delivered, to Solarflex copies of the transaction documents required to be
delivered by it at the Closing.
7.05 No Material Adverse Effect. Since the date hereof, there shall have been no
Material Adverse Effect with regards to KinerjaPay or the KinerjaPay IP.
ARTICLE 8
CONDITIONS PRECEDENT TO OBLIGATIONS OF PT KINERJA
All obligations of PT Kinerja under this License Agreement shall be subject to
the fulfillment at or prior to Closing of the following conditions, it being
understood that PT Kinerja may, in its r sole discretion, to the extent
permitted by applicable Legal Requirements, waive any or all of such conditions
in whole or in part.
8.01 Accuracy of Representations. All representations and warranties of
Solarflex contained in this License Agreement and the transaction documents and
any other document, instrument or certificate delivered by Solarflex at or prior
to the Closing shall be, if specifically qualified by materiality, true and
correct in all respects and, if not so qualified, shall be true and correct in
all material respects, in each case on and as of the Closing with the same
effect as if made on and as of the Closing, except for representations and
warranties expressly stated to be made as of the date of this License Agreement
or as of another date other than the date of Closing and except for changes
contemplated or permitted by this License Agreement.
8.02 Covenants. Solarflex shall, in all material respects, have performed and
complied with each obligation, agreement, covenant and condition contained in
this License Agreement and the transaction documents and required by this
License Agreement and the transaction documents to be performed or complied with
by Solarflex at or prior to Closing.
8.03 Consents and Approvals. All consents, approvals, authorizations and orders
required to be obtained from, and all registrations, filings and notices
required to be made with or given to, any Regulatory Authority or Person as
provided herein shall have been obtained.
8.04 Delivery of Documents. Solarflex shall have delivered, or caused to be
delivered, to PT Kinerja copies of the transaction documents required to be
delivered by it at the Closing.
8.05 No Material Adverse Change. There shall have been no material adverse
change in the business, financial condition or operations of Solarflex, taken as
a whole.
8.06 No Undisclosed Assets and Liabilities. Immediately prior to Closing,
Solarflex shall have no undisclosed assets or liabilities, and no liabilities
whatsoever to Solarflex' officers, directors, shareholders or affiliates, and
shall have no liabilities except those in the ordinary course of Solarflex'
business and as may arise directly from this License Agreement and from the Reg
S Subscription Agreements.
ARTICLE 9
INDEMNIFICATION
9.01 Indemnification by the Parties. The Parties shall indemnify, defend and
hold harmless each of the other Parties and each of their respective
shareholders, members, partners, directors, officers, managers, employees,
agents, attorneys and representatives, from and against any and all Losses which
may be incurred or suffered by any such Party and which may arise out of or
result from any breach of any representation, warranty, covenant or agreement by
any of the Parties contained in this License Agreement made as of the Closing.
Notwithstanding the foregoing, no claim under this Section may be made unless
notice is given pursuant to this Article 9 and Section 9.02 within one (1) year
from the Closing Date.
9.02 Notice to Indemnifying Party. If any party (the "Indemnified Party")
receives notice of any claim or other commencement of any action or proceeding
with respect to which any other party (or parties) (the "Indemnifying Party") is
obligated to provide indemnification pursuant to Article 9 and this Section
9.02, the Indemnified Party shall promptly give the Indemnifying Party written
notice thereof, which notice shall specify in reasonable detail, if known, the
amount or an estimate of the amount of the liability arising therefrom and the
basis of the claim. Such notice shall be a condition precedent to any liability
of the Indemnifying Party for indemnification hereunder, but the failure of the
Indemnified Party to give prompt notice of a claim shall not adversely affect
the Indemnified Party's right to indemnification hereunder unless the defense of
that claim is materially prejudiced by such failure. The Indemnified Party shall
not settle or compromise any claim by a third party for which it is entitled to
indemnification hereunder without the prior written consent of the Indemnifying
Party (which shall not be unreasonably withheld or delayed) unless suit shall
have been instituted against it and the Indemnifying Party shall not have taken
control of such suit after notification thereof as provided below.
9.03 Defense by Indemnifying Party. In connection with any claim giving rise to
indemnity hereunder resulting from or arising out of any claim or legal
proceeding by a Person who is not a party to this License Agreement, the
Indemnifying Party at its sole cost and expense may, upon written notice to the
Indemnified Party, assume the defense of any such claim or legal proceeding (i)
if it acknowledges to the Indemnified Party in writing its obligations to
indemnify the Indemnified Party with respect to all elements of such claim
(subject to any limitations on such liability contained in this License
Agreement) and (ii) if it provides assurances, reasonably satisfactory to the
Indemnified Party, that it will be financially able to satisfy such claims in
full if the same are decided adversely. If the Indemnifying Party assumes the
defense of any such claim or legal proceeding, it may use counsel of its choice
to prosecute such defense, subject to the approval of such counsel by the
Indemnified Party, which approval shall not be unreasonably withheld or delayed.
The Indemnified Party shall be entitled to participate in (but not control) the
defense of any such action, with its counsel and at its own expense; provided,
however, that if the Indemnified Party, in its sole discretion, determines that
there exists a conflict of interest between the Indemnifying Party (or any
constituent party thereof) and the Indemnified Party, the Indemnified Party (or
any constituent party thereof) shall have the right to engage separate counsel,
the reasonable costs and expenses of which shall be paid by the Indemnified
Party. If the Indemnifying Party assumes the defense of any such claim or legal
proceeding, the Indemnifying Party shall take all steps necessary to pursue the
resolution thereof in a prompt and diligent manner. The Indemnifying Party shall
be entitled to consent to a settlement of, or the stipulation of any judgment
arising from, any such claim or legal proceeding, with the consent of the
Indemnified Party, which consent shall not be unreasonably withheld or delayed;
provided, however, that no such consent shall be required from the Indemnified
Party if (i) the Indemnifying Party pays or causes to be paid all Losses arising
out of such settlement or judgment concurrently with the effectiveness thereof
(as well as all other Losses theretofore incurred by the Indemnified Party which
then remain unpaid or unreimbursed); (ii) in the case of a settlement, the
settlement is conditioned upon a complete release by the claimant of the
Indemnified Party; and (iii) such settlement or judgment does not require the
Encumbrance of any asset of the Indemnified Party or impose any restriction upon
its conduct of business.
9.04 Losses Net of Insurance, Etc. The amount of any Losses for which
indemnification is provided under this Section shall be net of any amounts
recovered by the Indemnified Party pursuant to (i) any indemnification by or
indemnification agreement with any third party and/or (ii) any insurance
proceeds or other cash receipts or sources of reimbursement received as an
offset against such Losses (each source of recovery referred to in clauses (i)
and (ii) of this Section a "Collateral Source"), and (iii) an amount equal to
the net tax benefit, if any, actually realized by the Indemnified Party within
three years of such Loss. The Indemnified Party shall use commercially
reasonable efforts to seek recovery from all Collateral Sources regardless of
indemnification available under this Section 9.04. The Indemnifying Party may
require an Indemnified Party to assign the rights to seek recovery pursuant to
the preceding sentence; provided, however, that the indemnifying Party will then
be responsible for pursuing such claim at its own expense. If the amount to be
netted hereunder in connection with a Collateral Source from any payment
required under Section 9is determined after payment by the Indemnifying Party of
any amount otherwise required to be paid to an Indemnified Party pursuant to
Article 9, the Indemnified Party shall repay to the Indemnifying Party, promptly
after such determination, any amount that the Indemnifying Party would not have
had to pay pursuant to this Article 9 had such determination been made at the
time of such payment, and any excess recovery from a Collateral Source shall be
applied to reduce any future payments to be made by the Indemnifying Party
pursuant to Article 9.
9.05 Sole Remedy/Waiver. The Parties acknowledge and agree that the remedies
provided for in this Article 9 shall be the Parties’ sole and exclusive remedy
for any breach of the representations, warranties, covenants or agreements
contained in this License Agreement or any claims relating to this License
Agreement or any other document, certificate or agreement delivered pursuant
hereto, other than claims or causes of action arising out of fraud or
intentional misconduct; provided, however, that this Section 9.05 shall not
limit or restrict a Party’s ability to obtain injunctive or equitable relief to
enforce any covenant contained in this License Agreement or in the transaction
documents or any other document, certificate or agreement delivered pursuant
hereto or thereto. In furtherance of the foregoing and except as specifically
set forth in this License Agreement, each of the Parties hereby waive, effective
upon the Effective Date, to the fullest extent permitted by applicable Law, any
and all other rights, claims and causes of action (including rights of
contribution, if any, and claims for rescission), which exist or may arise in
the future, that it may have against any current or future director, officer,
employee, general or limited partner or equity holder of any of the Parties or
their respective Affiliates, as the case may be, arising under or based upon any
Law for any breach of the representations and warranties or covenants contained
in this License Agreement, other than claims or causes of action arising out of
fraud or intentional misconduct.
ARTICLE 10
TERMINATION
10.01 Termination. This License Agreement may be terminated, and the
transactions contemplated hereby may be abandoned, at any time prior to the
Effective Date (i) by mutual written agreement of the Parties, or (ii) by either
Solarflex or PT Kinerja upon notification to the non-terminating Party by the
terminating Party if:
(a) the terminating Party is not in material breach of its obligations under
this License Agreement and there has been a material breach of any
representation, warranty, covenant or agreement on the part of the
non-terminating Party set forth in this License Agreement such that the material
conditions herein will not be satisfied; or
(b) if any court of competent jurisdiction or other competent Governmental or
Regulatory Authority shall have issued an order making illegal or otherwise
permanently restricting, preventing or otherwise prohibiting the transactions
contemplated by this License Agreement and such order shall have become final
and non-appealable.
10.02 Effect of Termination. If this License Agreement is validly terminated by
either Solarflex or PT Kinerja pursuant to Section 10.01, this License Agreement
will forthwith become null and void and there will be no liability or obligation
on the part of the parties hereto, except that nothing contained herein shall
relieve any party hereto from liability for willful breach of its
representations, warranties, covenants or agreements contained in this License
Agreement.
ARTICLE 11
MISCELLANEOUS
11.01 Parties Obligated and Benefited. This License Agreement shall be binding
upon the Parties and their respective successors by operation of law and shall
inure solely to the benefit of the Parties and their respective successors by
operation of law, and no other Person shall be entitled to any of the benefits
conferred by this License Agreement. Without the prior written consent of the
other Party, no Party may assign this License Agreement or the transaction
documents or any of its rights or interests or delegate any of its duties under
this License Agreement or the transaction documents.
11.02 Public Company Responsibility/Publicity. The Parties acknowledge and agree
that Solarflex has been a public company: (i) since the filing of a registration
statement on Form S-1 with the SEC under the Act on July 12, 2010, which
registration statement was declared effective by the SEC on February 10, 2012;
and (ii) has been a current reporting company under the Exchange Act since it
filed its initial annual report on Form 10-K with the SEC on March 26, 2012. As
a public reporting company under the Exchange Act, the Parties acknowledge that
Solarflex has the obligation to publicly report the execution of material
definitive agreements, such as this License Agreement, and otherwise make public
disclosure of material events pursuant to the rules and regulations promulgated
by the SEC under the Act and the Exchange Act. The Parties further understand
that the Solarflex' Shares are subject to quotation under the trading symbol "SFEX"
on the OTCQB, a public trading quotation system maintained by OTC Markets. As a
result, the Parties understand and agree Solarflex intends to make a public
announcement of the execution of this License Agreement with the filing of a
Form 8-K under the Exchange Act and that, in connection with the Closing,
Solarflex may be required to make a filing containing full Form 10 disclosure
regarding the business of KinerjaPay IP. The Parties shall consult with each
other in connection with the preparation and prior filing the initial 8-K report
disclosing the execution of this License Agreement and the subsequent filing
containing full Form 10 disclosure report under the Exchange Act and/or the Act.
11.03 Notices. All notices, consents, approvals, agreements, authorizations,
acceptances, rejections and waivers under this License Agreement must be in
writing and shall be deemed given when: (a) delivered by hand or private,
prepaid courier service to the person specified for the receiving Party at the
address specified; or (b) mailed to that addressee at that address by a
nationally recognized express mail carrier with package tracking capability or
certified mail, return receipt requested, with postage fully prepaid; or (c)
transmitted by facsimile. A notice by facsimile shall be deemed given, subject
to electronic confirmation of delivery, on the date of receipt if a Business
Day, or on the following Business Day if received on a day that is not a
Business Day. Each Party may change the address or person for notification upon
ten (10) days' notice to the other Party. The initial notification information
is as follows:
If to Solarflex, then to: If to PT Kinerja and/or Xx. Xx, then to:
Solarflex Corp.
Xx. Xxxxxxxxx
00 Xxxx Xxxxxx Xxxxxx Xxxxxx
Xx.0X
00xx Xxxxx
Xxxxx Xxx 00000, Israel
Medan 00000, Xxxxxxxxx
Attn: Xxxxxx Xxxxx
Attn: Xxxxx Xxxxxxx Xx
email: xxxxxxxxxxxxx@xxxxx.xxx
email: xxxxxxx0@xxxxx.xxx
with a copy (which shall not constitute a notice) to: with a copy
(which shall not constitute a notice) to:
Office of Xxxxxxx Xxxxx _______________________
00 Xxxx Xxxxxx-00xx Xxxxx _______________________
Xxx Xxxx, XX 00000 _______________________
Attn: Xxxxxxx Xxxxx, Esq. _______________________
email: xxxxxx@xxxxxxxxxxxxxxx.xx _______________________
11.04 Attorneys' Fees. In the event of any action or suit based upon or arising
out of any alleged breach by any Party of any representation, warranty, covenant
or agreement contained in this License Agreement or the transaction documents,
the prevailing Party shall be entitled to recover reasonable attorneys' fees and
other costs of such action or suit from the other Party.
11.05 Headings. The Article and Section headings of this License Agreement are
for convenience only and shall not constitute a part of this License Agreement
or in any way affect the meaning or interpretation thereof.
11.06 Choice of Law and Jurisdiction. This License Agreement and the rights of
the Parties under it shall be governed by and construed in all respects solely
in accordance with the laws of the State of New York, without giving effect to
any choice of law provision or rule (whether of the State of New York or any
other jurisdiction that would cause the application of the laws of any
jurisdiction other than the State of New York), and the courts of competent
jurisdiction located in New York County, State of New York, shall have exclusive
jurisdiction with respect to any claim or procedure arising out of or in
connection with this License Agreement.
11.07 Rights Cumulative. Subject to Article 11, all rights and remedies of each
of the Parties under this License Agreement shall be cumulative, and the
exercise of one or more rights or remedies shall not preclude the exercise of
any other right or remedy available under this License Agreement or applicable
law.
11.08 Further Actions. The Parties shall execute and deliver to each other, from
time to time at or after Closing, for no additional consideration and at no
additional cost to the requesting party, such further assignments, certificates,
instruments, records, or other documents, assurances or things as may be
reasonably necessary to give full effect to this License Agreement and to allow
each party fully to enjoy and exercise the rights accorded and acquired by it
under this License Agreement.
11.09 Time of the Essence. Time is of the essence under this License Agreement.
If the last day permitted for the giving of any notice or the performance of any
act required or permitted under this License Agreement falls on a day which is
not a Business Day, the time for the giving of such notice or the performance of
such act shall be extended to the next succeeding Business Day.
11.10 Counterparts. This License Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.11 Entire License Agreement. This License Agreement (including the Exhibits,
schedules and any other documents, instruments and certificates referred to
herein, which are incorporated in and constitute a part of this License
Agreement) contains the entire agreement between the Parties. Without limiting
the generality of the foregoing, this License Agreement is intended to supersede
any previous agreements or understandings between the Parties.
11.12 Agreements with Third Parties. Nothing herein contained shall be deemed or
construed to amend, modify, derogate from or change any existing agreement or
understanding of the Parties with third parties relating to any matter set forth
herein.
11.13 Expenses. Each party will be responsible for payment of its expenses in
connection with the transactions contemplated by this License Agreement.
11.14 Survival of Representations and Covenants. Notwithstanding any right of
any Party fully to investigate the affairs of Solarflex or PT Kinerja, as the
case may be, and notwithstanding any knowledge of facts determined or
determinable by any Party pursuant to such investigation or right of
investigation, each Party shall have the right to rely fully upon the
representations, warranties, covenants and agreements of other Parties contained
in this License Agreement. Each representation, warranty, covenant and agreement
of the Parties contained herein shall survive the execution and delivery of this
License Agreement and the Closing and shall thereafter terminate and expire on
the first anniversary of the Closing unless, prior to such date, a Party has
delivered to the other Parties a written notice of a claim with respect to such
representation, warranty, covenant or agreement, except for the Fundamental
Representations to which no limitation of survival shall apply.
IN WITNESS WHEREOF, the Parties hereto have duly executed this License Agreement
as of the day and year first above written.
SOLARFLEX CORP.
/s/: Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
PT KINERJA INDONESIA
/s/: Xxxxx Xxxxxxx Xx
Name: Xxxxx Xxxxxxx Xx
Title: Chief Executive Officer
