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EXHIBIT 6.1
AGREEMENT
This Agreement is between The Kensington Group (a Thai corporation) Time Square,
Between Soi 14 and 00, Xxxxxxxxx Xxxx, Xxxxxxx, 00000, Xxxxxxxx "Kensington" and
IWM Corporation (in formation) 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxx,
XX 00000 XXX "IWM" and is dated 10 January 2000.
1 PURCHASE AND SALE OF SHARES ON THE TERMS AND SUBJECT TO THE CONDITIONS
SET FORTH HEREIN, UPON WRITTEN REQUEST PRIOR TO THE "TERMINATION DATE":
1.1 Kensington shall have first option to purchase up to 8 million
Shares of IWM's common stock from time to time.
1.2 IWM shall receive US$1.50 Dollars from each share sold until it
is fully listed on the NASDAQ.
1.3 IWM undertakes to list as soon as commercially viable. On its
current projections, that should be possible in the last quarter
of 2000 or the first quarter of 2001.
1.4 After listing, IWM would receive not less than 40% of the
offering price of IWM's Common Stock at the time of sale.
1.5 Kensington shall have the exclusive right to purchase the
available Shares subject to Clause 1.6.
1.6 This Agreement commences on 10 January 2000 and terminates on 9
January 2001 unless an extension is mutually agreed.
1.7 Kensington acknowledges that IWM has certain existing
relationships with third parties and existing shareholders. From
time-to-time IWM may desire to sell Shares to these third
parties outside of the scope of this Agreement upon notice to
and receipt of the consent of Kensington, which shall not be
unreasonably withheld.
2 PAYMENT AND DELIVERY.
2.1 Payment for the Shares purchased by Kensington will be made
by direct debit into a bank account established by IWM at an
agreed bank in Hong Kong for subsequent transfer to IWM in the
USA, or an alternative account agreed to by both parties.
2.2 Payment shall be made on the first business day, following
delivery by Kensington to IWM of written notice delivered to
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxx, XX 00000 XXX
of its election to acquire such Shares.
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2.3 Stock certificates representing the Shares acquired by
Kensington shall be held by IWM until such time as Kensington
request they be forwarded to them.
2.4 Should Kensington reassign ownership of any Shares it may have
purchased (subject to the conditions in Clause 2.5), IWM shall
register the transfer of ownership and forward a new stock
certificate to the assignee within 30 days of written
notification.
2.5 Shares reassigned as described in Clause 2.4 shall be subject to
the following restrictions:
2.5.1 The Shares may not be sold or traded within twelve
months of IWM being listed on NASDAQ.
2.6 If Kensington purchases all 8 million Shares prior to 9 January
2000, Kensington shall have first option to purchase up to 8
million additional Shares under the same terms and conditions
listed in this Agreement.
3 REPRESENTATIONS AND WARRANTIES OF KENSINGTON. KENSINGTON REPRESENTS AND
WARRANTS TO IWM AS FOLLOWS:
3.1 Accredited Investor: Kensington is an "accredited investor" as
that term, is defined, in Rule 501 (a) of the General Rules and
Regulations under the Securities Act.
3.2 Location of Kensington: Kensington was outside of the United
States at both the time the offer to purchase the Shares from
IWM was received, and at the time, this Agreement was entered
into.
3.3 Purchase for Investment or Resale Outside of the United States:
Kensington is acquiring the Securities for investment purposes,
or for the purpose of selling and distributing, the Securities
to third party purchasers outside of the United States in a
manner that qualifies for an exemption from registration, of
such Securities under Section 5 of the Securities Act pursuant
to Regulation "S" under the Securities Act. Kensington is not
acquiring the Securities for the purpose of sale or distribution
of the Securities in the United States or in a manner that does
not comply with the requirements of Regulation "S". Kensington
acknowledges that the Securities to be acquired, by Kensington,
pursuant to this Agreement are not registered under the
Securities Act and cannot be sold or otherwise disposed of
except in compliance with the Securities Act or in reliance upon
an exemption from the Securities Act. Kensington acknowledges
that the certificate(s) representing the Securities shall bear a
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
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AS AMENDED. AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED, ASSIGNED, HYPOTHECATED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT, REGULATION S OR AN EXEMPTION FROM
REGISTRATION AND OTHERWISE IN ACCORDANCE WITH THE TERMS
OF AN AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL
UNDERSIGNED HOLDER OF THE SECURITIES, A COPY OF WHICH IS
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF THE
ISSUER."
3.4 Access to Information. Kensington believes that it has received
all the information it considers necessary or appropriate for
deciding whether to purchase the Shares, and it has had
opportunities to ask questions and receive answers from IWM and
its officers and directors regarding the business, prospects and
financial condition of IWM.
4 AGREEMENT OF KENSINGTON.
4.1 Resale of Securities Pursuant to Regulation "S." Kensington
agrees that:
4.1.1 all offers and sales of the Securities by Kensington
shall be made in an "offshore transaction" (as such term
is defined in Rule 902 of Regulation "S" under the
Securities Act);
4.1.2 none of Kensington, it's affiliates or any person acting
on behalf of Kensington shall engage in any "directed
selling efforts" (as such term is defined in Rule 902 of
Regulation "S" under the Securities Act) in the United
States in connection with any offers or sales of the
Securities;
4.1.3 all offers and sales of the Securities by Kensington to
third parties prior to the expiration of the
distribution compliance period specified in Category 3
(paragraph (b) (3) in Rule 903 of Regulation "S" under
the Securities Act (the "distribution compliance
period"), shall be made only in accordance with the
provisions of Rule 903 or Rule 904 of Regulation S under
the Securities Act, pursuant to registration of the
securities under the Securities Act, or pursuant to an
available exemption from the registration requirements
of the Securities Act;
4.1.4 Kensington shall not engage in hedging transactions with
regard to the Securities prior to the expiration of the
distribution compliance period unless in compliance with
the Securities Act;
4.1.5 Kensington will not use offering materials or other
documents in connection with offers and sales of the
Securities prior to the expiration of the distribution
compliance period unless such
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offering materials and other documents have been
provided or approved by IWM;
4.1.6 all offers and sales of the Securities by Kensington
prior to the expiration of the distribution compliance
period shall not be made to a "U.S. person" (as such
term is defined in Rule 902 of Regulation "S" under the
Securities Act) or for the account or benefit of a U.S.
person;
4.1.7 Kensington shall obtain from each purchaser of such
Securities an Investment Representation Letter in form
and substance identical to the letter attached hereto as
Exhibit A. and Kensington agrees that any sale of
Securities hereunder shall not be effective, and IWM
shall have no obligation to register any transfer of the
Securities, unless and until such letter is delivered to
IWM; and
4.1.8 Kensington shall provide IWM with written notification
of the date Kensington terminates all offers and sales
of the Securities to third parties as contemplated by
this Section.
4.2 Indemnification
4.2.1 By Company. IWM agrees to indemnify and hold harmless
Kensington, and each officer, director, partner,
employee and agent of Kensington, from and against any
and all losses, claims, damages, expenses or
liabilities, joint or several (and actions in respect
thereof), to which they or any of them may become
subject under the Securities Act or under any other
statute or at common law or otherwise, and, except as
hereinafter provided, will reimburse Kensington and each
such person, if any, for any legal or other expenses
reasonably incurred by them or any of them in connection
with investigating or defending any action, whether or
not resulting in any liability, insofar as such losses,
claims, damages, expenses, liabilities or actions arise
out of or are based upon (A) any untrue statement or
alleged untrue statement of a material fact contained in
any offering materials or other documents provided by
IWM to Kensington for use by Kensington in connection
with the resale of the Securities, unless such untrue
statement was made in such materials upon and in
conformity with information furnished in writing to IWM
in connection therewith by Kensington or any person
through Kensington expressly for use therein, and (B)
any breach of any of the representations, warranties,
covenants or agreements made by IWM in this Agreement or
any exhibit hereto.
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4.2.2 By Kensington. Kensington agrees to indemnify and hold
harmless IWM, and each officer, director, partner,
employee and agent of Kensington, from and against any
and all losses, claims, damages, expenses or
liabilities, joint or several (and actions in respect
thereof), to which they or any of them may become
subject under the Securities Act or under any other
statute or at common law or otherwise, and, except as
hereinafter provided, will reimburse IWM and each such
officer, director, partner, employee and agent of IWM
for any legal or other expenses reasonably incurred by
them or any of them in connection with investigating or
defending any action, whether or not resulting in any
liability, insofar as such losses, claims, damages,
expenses, liabilities or actions arise out of or are
based upon (A) any untrue statement or alleged untrue
statement of a material fact contained in any offering
materials or other documents provided by IWM to
Kensington for use by Kensington in connection with the
resale of the Securities, but only insofar as any such
statement was made in reliance upon and in conformity
with information furnished in writing to IWM in
connection therewith by Kensington or any person through
Kensington expressly for use therein, and (B) the profit
(including "spread", commissions and/or fees) earned by
Kensington in connection with resales of Securities, and
(C) any breach of any of the representations,
warranties, covenants or agreements made by Kensington
in this Agreement or any exhibit hereto.
4.3 Indemnification Procedures. Promptly after receipt of notice of
the commencement of any action in respect of which indemnity,
may be sought against any indemnifying party under this Section
5(c), the indemnified party will notify the indemnifying party
in writing of the commencement thereof, and the indemnifying
party will, subject to the provisions hereafter stated, assume
the defense of such action (including the employment of counsel
satisfactory to the indemnified party and the payment of
expenses) insofar as such action relates to an alleged liability
in respect of which indemnity may be sought against the
indemnifying party. After notice from the indemnifying party of
its election to assume the defense of such claim or action, the
indemnifying party shall no longer be liable to the indemnified
party under this Section 5(c) for any legal or other expenses
subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of
investigation; provided however that if, in the reasonable
judgment of the indemnified party or parties to be represented
by separate counsel, the indemnified parties who may be subject
to liability arising out of a claim in respect of which
indemnity may be sought by the indemnified parties thereof
against the indemnifying party, in which event the fees and
expenses of such separate counsel shall be borne by the
indemnifying party. Any party against whom indemnification may
be sought under this Section 5(c) shall not be liable
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to indemnify any person that might otherwise be indemnified pursuant
hereto for any settlement of any action effected without such
indemnifying party's consent, which consent shall not be unreasonably
withheld.
5 Miscellaneous
5.1 Severability. Should any Section or any part of a Section within
this Agreement be rendered void, invalid or unenforceable by any
court of law for any reason, such invalidity or
unenforceability shall not void or render invalid or
unenforceable any other Section or part of a Section in this
Agreement
5.2 Governing Law. THE TERMS OF THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE WITHIN, AND TO BE
PERFORMED WITHIN, SUCH STATE EXCLUDING CHOICE OF LAW PRINCIPLES
OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF
A JURISDICTION OTHER THAN SUCH STATE.
5.3 No Adverse Construction. The rule that a contract is to be
constructed against the party drafting the contract is hereby
waived, and shall have no applicability in construing this
Agreement or the terms of this Agreement.
5.4 Counterparts. This 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.
Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the
parties hereto. The parties may transmit by facsimile executed
copies of the signature pages of this Agreement to all other
parties. Such transmission shall constitute a representation and
warranty of the transmitter that the execution and delivery of
this Agreement has been authorized by it, subject only to the
execution and delivery of this Agreement by all other parties.
Each party transmitting a signature page by facsimile shall
promptly forward, signed original counterparts to the other
parties to this Agreement.
5.5 Costs and Attorney's Fees. In the event that any action, suit,
or other proceeding is instituted concerning or arising out of
this Agreement, the prevailing party shall recover all of such
party's costs and reasonable attorney's fees incurred in each
and every such action, suit, or other proceeding, including any
and all appeals or petitions therefrom.
5.6 Successors and Assigns. All rights, covenants and agreements of
the parties contained in this Agreement shall be binding upon
and inure to the benefit of their respective successors and
permitted assigns.
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Except as otherwise specifically set forth herein, nothing in
this Agreement, expressed or implied, is intended to confer on
any person other than the parties to this Agreement or their
respective successor and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
No party to this Agreement may assign any of its or his
respective rights, or delegate any of its or his respective
duties or obligations, under this Agreement without the prior
written consent of all other parties to this Agreement, and any
such purported assignment or delegation shall be void ab initio,
provided however, that the merger by IWM, or any of the
Subsidiaries with or into another entity, shall not constitute
an assignment or delegation within the meaning of this Section
6(f), and that such entity expressly assumes all duties and
obligations of IWM or any of the Subsidiaries, as the case may
be, and their respective subsidiaries under this Agreement.
5.7 Entire Agreement. The Agreement and the attached Exhibits
contain the entire understanding of the parties and supersede
all prior negotiations, discussions and agreements between such
parties, all of which are hereby merged herein. No party to this
Agreement makes any representation or warranty except as set
forth herein.
5.8 Currency. All references to "$" in this Agreement and any
exhibit hereto shall mean the lawful currency of the United
State of America unless otherwise specified herein.
5.9 Shares. All references to "Shares" in this document shall mean
the common stock of IWM.
5.10 Termination Date. Shall mean a date thirty (30) days after IWM
has noted Kensington in writing of its desire to cease the
Offering or 9 January 2000, whichever comes first.
Signed on behalf of
IWM CORPORATION )
by )
Xxxxxx X Xxxxxxxx )
Chief Executive Officer )
and President )
THE KENSINGTON GROUP )
by )
Xxxxx X Xxxxxxx )
Managing Director )
and President )
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INVESTOR REPRESENTATION LETTER
The Board of Directors
IWM Corporation
151655 Xxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx Xxxx,
Xxxxxxxxxx 00000, XXX,
Re: ACQUISITION OF SECURITIES IN IWM CORPORATION
Dear Sirs,
The undersigned proposes to acquire the number of Shares of Common Stock of IWM
Corporation, a California corporation hereinafter referred to as "IWM", set
forth on the signature page to this Investor Representation Letter hereinafter
referred to as the "Securities". The undersigned understands that the Securities
have not been registered under the United States Securities Act of 1933, as
amended (the "Securities Act"), and that there are restrictions on transfer
applicable to the Securities.
In order to induce IWM to issue the Securities to the undersigned, the
undersigned represents and warrants to, and agrees with, IWM as follows:
1 The undersigned was outside of the "United States" (as defined in
Attachment A) at both the time the offer to purchase the Securities was
received and at the time an agreement to purchase the Securities was
signed or otherwise entered into.
2 The undersigned is not a "U.S. person" (as defined in Attachment A) nor
acquiring the Securities for the account or benefit of a U.S. person
within the meaning of Regulation "S" under the Securities Act.
3 The undersigned is not a "distributor" (as defined in Attachment A).
4 The undersigned agrees that any resale of the Securities shall be made
in accordance with the provisions of Regulation "S" of the Securities
Act, pursuant to registration under the Securities Act, or pursuant to
an available exemption from registration, which requires a one-year
restriction on resale of the Securities from the date of your purchase.
5 The undersigned agrees that it will not transfer any securities without
complying with each of the restrictions set forth herein. As a further
condition to any transfer condition to a transfer of the Securities,
except if the transfer is made pursuant to an effective registration
statement under the Securities Act, if in the reasonable opinion of
counsel to IWM transferee of the Securities by
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the undersigned would not be exempt from the registration and prospectus
delivery requirements of the Securities Act, IWM may require the
contemplated transfer to furnish IWM with an investment letter setting
forth such information and agreements as may be reasonably requested by
IWM to ensure compliance by the transferee with the Securities Act.
6 Furthermore, the undersigned will not resell the Securities to U.S.
Persons or within the United States until after the end of the
applicable restricted period under Regulation "S" or any the applicable
restricted period under the Securities Act hereinafter referred to as
the "Restricted Period" other than pursuant to registration of the
Securities under the Securities Act or pursuant to an exemption from
such registration.
7 The undersigned agrees not to engage in hedging transactions with regard
to the Securities except in compliance with the Securities Act.
8 The undersigned acknowledges that the certificates representing the
Securities acquired by the undersigned shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED, ASSIGNED, HYPOTHECATED OR OTHERWISE DISPOSED
OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT,
REGULATION S OR AN EXEMPTION FROM REGISTRATION AND OTHERWISE IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE ISSUER AND THE
ORIGINAL OWNER OF THE SECURITIES, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER."
9 The undersigned is acquiring the Securities for the undersigned's own
account, and not as a nominee or agent for others, and not with a view
to resale or effect distribution in the United States of any part
thereof, and the undersigned has no present intention of distributing
the Securities in violation of the Securities Act.
10 The undersigned agrees to hold IWM and its directors, officers and
controlling persons and their respective heirs, representatives,
successors and assigns harmless and to indemnify them against all
liabilities, costs and expenses incurred by them as a result of any
misrepresentation made by the undersigned contained herein or any sale
or distribution of the Securities by the undersigned in violation of
applicable United States Federal and state securities laws. This
indemnification agreement shall survive the closing of this transaction.
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Date:
Investor name(s):
Title(s):
Investor signature(s):
Address:
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SHARE(S) OF COMMON STOCK TO BE ACQUIRED
The signature(s) hereon should correspond exactly with the name in which the
Investor is acquiring the Securities. If Securities are to be jointly held, all
joint owners should sign. When signing as attorney, executor, administrator,
trustee or guardian, please give full time as such. If signer is a corporation,
please sign the full corporation name, and give title of signing officer.
The foregoing letter of agreement is accepted by the issuer who hereby affirms
that IWM will refuse to register any transfer of the Securities unless made in
accordance with the registration or exemptive provisions of the Securities Act
or in accordance with Regulation S.
IWM Corporation )
By )
Xxxxxx X Xxxxxxxx )
President and CEO )
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ATTACHMENT A
TO
INVESTOR REPRESENTATION LETTER
DEFINITIONS
(a) "Distributor" means: Any underwriter, dealer, or other person who
participates, pursuant to a contractual arrangement, in the distribution
of the securities offered or sold in reliance on Regulation S.
(b) A "U.S. person" means:
(i) Any natural person resident in the United States;
(ii) Any partnership or corporation organized or incorporated under
the laws of the United States;
(iii) Any estate of which any executor or administrator is a U.S.
person;
(iv) Any trust of which any trustee is a U.S. person;
(v) Any agency or branch of a foreign entity located in the United
States;
(vi) Any non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. person;
(vii) Any discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary organized,
incorporated, or (if an individual) resident in the United
States; and
(viii) Any partnership or corporation if: (A) organized or incorporated
under the laws of any foreign jurisdiction, and (B) formed by a
U.S. person principally for the purpose of investing in
securities not registered under the Act, unless it is organized
or incorporated, and owned, by accredited investors (as defined
in Rule 501 (a) of the Securities Act who are not natural
persons, estates or trusts.
(c) "United States" means The United States of America, its territories and
possessions, any State of The United States and The District of
Columbia.
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