FIRST AMENDMENT TO EXCHANGE AGREEMENT
THIS FIRST AMENDMENT TO EXCHANGE AGREEMENT (the "Amendment") is made as
of the 4th day of December, 2003 by and between SIMEX TECHNOLOGIES, INC., a
Delaware corporation ("SIMEX"), and PROBITY INVESTIGATIONS, INC., a Georgia
corporation ("Probity").
WITNESSETH:
WHEREAS, SIMEX and Probity entered into an Exchange Agreement dated as
of September 15, 2003 whereby SIMEX would exchange 16,000,000 shares of its
common stock (the "SIMEX Common Stock") for all of the outstanding membership
interests of Remote Business Management, LLC ("RBM"), a wholly owned subsidiary
of Probity (the "Exchange Agreement");
WHEREAS, Probity wishes to effect a reorganization whereby all of the
assets of RBM will be transferred to a newly formed subsidiary of Probity -
Remote Business, Inc., a Georgia corporation ("Remote, Inc.");
WHEREAS, instead of exchanging all of the issued and outstanding
membership interests of RBM for the SIMEX Common Stock, Probity wishes to
exchange all of the issued and outstanding stock of Remote, Inc. (the "Remote
Stock") for same; and
WHEREAS, the parties intend for the exchange to qualify, for federal
income tax purposes, as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Purchaser and Company hereby agree as follows:
1. SUBSTITUTION OF REMOTE STOCK. The Exchange Agreement is hereby
amended by replacing all reference to the Membership Interests in the Exchange
Agreement with a reference to the Remote Stock.
2. ADDITION OF REMOTE, INC. TO AGREEMENT. The Exchange Agreement
is hereby amended by adding Remote, Inc. to each of the Representations and
Warranties of Probity found in Article II of the Exchange Agreement and to each
and every other agreement, representation, warranty or covenant by Probity with
respect to RBM. The addition of Remote, Inc. to the Exchange Agreement as
contemplated in this Section 2 shall in no way release RBM from any of its
representation, warranties, covenants, or agreements contained in the Exchange
Agreement.
3. NAME CHANGE OF REMOTE, INC. Upon the Closing of the Share
Exchange, Remote Business Management, LLC shall change its name to a name
distinguishable from
"Remote Business Management" and hereby transfers and assigns any rights that it
may have in such name to Remote, Inc. and SIMEX.
4. VOTING AGREEMENT. The Exchange Agreement is hereby amended
whereby the following Section 1.10. shall replace in its entirety the current
Section 1.10.:
"1.10. Board of Directors. For a period from the Closing until
the next annual Shareholders meeting, Probity (and/or its
assigns) will agree that the Simex's Board of Directors shall
consist of the following: Xxxxx Xxxxxxx, Xxxx Xxxx, Xxxxx Xxx
Xxx and Kyu Xxxx Xxxx, and will not take any action to effect
a change in such a composition."
5. REPRESENTATIONS AND WARRANTIES. Probity shall provide SIMEX
with financial statements, an accounts receivable report and an accounts payable
report of RBM as of September 30, 2003 prior to the Closing. Accordingly, all
representations and warranties of Probity and/or RBM contained in Sections 2.6,
2.7, 2.8, 2.25 and 2.26 of the Exchange Agreement that reference June 30, 2003
shall be amended by deleting the date June 30, 2003 and replacing it with the
date September 30, 2003.
6. REAFFIRMATION. Probity hereby reaffirms to SIMEX all of the
representations and warranties of Probity contained in Article II of the
Exchange Agreement, including as modified herein.
7. NO FURTHER MODIFICATIONS. Except as modified herein, all of
the terms and conditions of the Exchange Agreement remain unchanged and in full
force and effect.
8. MISCELLANEOUS. This Amendment is an integral part of the
Exchange Agreement. Unless otherwise defined herein, any capitalized term used
in this Amendment shall have the meaning given to such term in the Exchange
Agreement. This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall be deemed to
one and the same instrument.
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IN WITNESS WHEREOF, SIMEX, Probity and RBM have caused this Agreement
to be signed and delivered by their respective duly authorized officers as of
the date first written above.
"RBM"
Remote Business Management, LLC, a Georgia
limited liability company
By: /s/ Xxxx Xxxx Xxxxxxx
---------------------
Title: President
"SIMEX"
SIMEX Technologies Inc., a Delaware
corporation
By: Xxxxx X. Jagelid
----------------
Title: President
"Probity"
Probity Investigations, Inc., a Georgia
corporation
By: /s/ Xxxx Xxxx Xxxxxxx
----------------------
Title: President
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