EXHIBIT 10.3
SIMEX STOCK PURCHASE AGREEMENT
This SIMEX Stock Purchase Agreement ("Agreement") is made as of
___________, 2004, by Wooju Communications Company, Ltd., a Korean corporation
("Buyer") and SIMEX Technologies, Inc., a Delaware corporation (the "Company").
R E C I T A L S
The Company desires to sell and issue, and Buyer desires to subscribe
for and purchase, 2,000,000 of the authorized but not previously issued shares
(the "Shares") of Class A Preferred Stock of the Company for the consideration
and on the terms set forth in this Agreement.
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS.
"Balance Sheet" as defined in Section 3.4.
"Best Efforts" the efforts that a prudent Person desirous of achieving
a result would use in similar circumstances to ensure that such result is
achieved as expeditiously as possible provided, however, that an obligation to
use Best Efforts under this Agreement does not require the Person subject to
that obligation to take actions that would result in a materially adverse change
in the benefits to such Person of this Agreement and the Contemplated
Transactions.
"Breach" a "Breach" of a representation, warranty, covenant,
obligation, or other provision of this Agreement or any instrument delivered
pursuant to this Agreement will be deemed to have occurred if there is or has
been (a) any inaccuracy in or breach of, or any failure to perform or comply
with, such representation, warranty, covenant, obligation, or other provision,
or (b) any claim (by any Person) or other occurrence or circumstance that is or
was inconsistent with such representation, warranty, covenant, obligation, or
other provision, and the term "Breach" means any such inaccuracy, breach,
failure, claim, occurrence, or circumstance.
"Buyer" as defined in the first paragraph of this Agreement.
"Closing" as defined in Section 2.3.
"Closing Date" the date and time as of which the Closing actually takes
place.
"Company" as defined in the Recitals of this Agreement.
"Consent" any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"Contemplated Transactions" all of the transactions contemplated by
this Agreement, including:
(a) the sale and issuance of the Shares by Company to Buyer;
(b) the execution, delivery, and performance of the
Shareholders' Agreement;
(c) the performance by Buyer and Sellers of their respective
covenants and obligations under this Agreement; and
(d) Buyer's acquisition and ownership of the Shares.
"Contract" any agreement, contract, obligation, promise, or undertaking
(whether written or oral and whether express or implied) that is legally
binding.
"Documents" this Agreement and each of the other documents to which it
is a party as further defined in Section 3.1(c).
"Encumbrance" any charge, claim, community property interest,
condition, equitable interest, lien, option, pledge, security interest, right of
first refusal, or restriction of any kind, including any restriction on use,
voting, transfer, receipt of income, or exercise of any other attribute of
ownership.
"GAAP" generally accepted United States accounting principles, applied
on a basis consistent with the basis on which the Balance Sheet and the other
financial statements referred to in Section 3.4(b) were prepared.
"Governmental Authorization" any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"Governmental Body" any:
(a) nation, state, county, city, town, village, district, or
other jurisdiction of any nature;
(b) federal, state, local, municipal, foreign, or other
government;
(c) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official, or entity and
any court or other tribunal);
(d) multi-national organization or body; or
(e) body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police, regulatory, or taxing
authority or power of any nature.
"Interim Balance Sheet" as defined in Section 3.4.
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"IRC" the Internal Revenue Code of 1986 or any successor law, and
regulations issued by the IRS pursuant to the Internal Revenue Code or any
successor law.
"IRS" the United States Internal Revenue Service or any successor
agency, and, to the extent relevant, the United States Department of the
Treasury.
"Knowledge" an individual will be deemed to have "Knowledge" of a
particular fact or other matter if:
(a) such individual is actually aware of such fact or other
matter; or
(b) a prudent individual could be expected to discover or
otherwise become aware of such fact or other matter in the course of conducting
a reasonably comprehensive investigation concerning the existence of such fact
or other matter.
A Person (other than an individual) will be deemed to have
"Knowledge" of a particular fact or other matter if any individual who is
serving, or who has at any time served, as a director, officer, partner,
executor, or trustee of such Person (or in any similar capacity) has, or at any
time had, Knowledge of such fact or other matter.
"Legal Requirement" any federal, state, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
"Order" any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"Ordinary Course of Business" an action taken by a Person will be
deemed to have been taken in the "Ordinary Course of Business" only if:
(a) such action is consistent with the past practices of such
Person and is taken in the ordinary course of the normal day-to-day operations
of such Person;
(b) such action is not required to be authorized by the board
of directors of such Person (or by any Person or group of Persons exercising
similar authority; and
(c) such action is similar in nature and magnitude to actions
customarily taken, without any authorization by the board of directors (or by
any Person or group of Persons exercising similar authority), in the ordinary
course of the normal day-to-day operations of other Persons that are in the same
line of business as such Person.
"Organizational Documents"
(a) the articles or certificate of incorporation and the
bylaws of a corporation;
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(b) any charter or similar document adopted or filed in
connection with the creation, formation, or organization of a Person; and
(c) any amendment to any of the foregoing.
"Person" any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, or other entity
or Governmental Body.
"Proceeding" any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
"Representative" with respect to a particular Person, any director,
officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial advisors.
"Securities Act" the Securities Act of 1933 or any successor law, and
regulations and rules issued pursuant to that Act or any successor law.
"Shares" as defined in the Recitals of this Agreement.
"Shareholders' Agreement" as defined in Section 2.4(c).
"Threatened" a claim, Proceeding, dispute, action, or other matter will
be deemed to have been "Threatened" if any demand or statement has been made
(orally or in writing) or any notice has been given (orally or in writing), or
if any other event has occurred or any other circumstances exist, that would
lead a prudent Person to conclude that such a claim, Proceeding, dispute,
action, or other matter is likely to be asserted, commenced, taken, or otherwise
pursued in the future.
"Transactions" the transactions contemplated herein and further defined
in Section 3.1(c).
2. SALE AND TRANSFER OF SHARES; CLOSING; OPTION.
2.1 SHARES. Subject to the terms and conditions of this Agreement, at
the Closing, the Company will sell and issue the Shares to Buyer, and Buyer will
purchase the Shares from Sellers.
2.2 PURCHASE PRICE. The purchase price (the "Purchase Price") for the
Shares will be $13,000,000.
2.3 CLOSING. The purchase, sale and issuance (the "Closing") provided
for in this Agreement will take place at the offices of an international bank
mutually agreeable to the Buyer and Company, immediately after the Closing of
the purchase of Shares pursuant to the Stock Purchase Agreement by and between
Buyer ant the Company, of even date herewith, for the
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purchase of 3,714,285 shares of Wooju stock (the "Wooju Stock Purchase
Agreement"). Subject to the provisions of Section 9, failure to consummate the
purchase and sale provided for in this Agreement on the date and time and at the
place determined pursuant to this Section 2.3 will not result in the termination
of this Agreement and will not relieve any party of any obligation under this
Agreement.
2.4 CLOSING OBLIGATIONS. At the Closing:
(a) The Company will deliver to Buyer:
(i) certificates representing the Shares, for
issuance and delivery to Buyer together with a copy of the Certificate
of Rights and Preferences of the Class A Preferred Stock in the form
attached hereto as Exhibit 2.4(a) certified by the Secretary of State
of Delaware, subject to the provisions of Section 2.4(d) below;
(ii) a certificate executed by the Company
representing and warranting to Buyer that the Company's representations
and warranties in this Agreement was accurate in all respects as of the
date of this Agreement and is accurate in all respects as of the
Closing Date as if made on the Closing Date; and
(b) Buyer will deliver to the Company:
(i) the following amounts by check payable to the
order of or by wire transfer to accounts specified by the Company;
(ii) the sum of $13,000,000 by bank cashier's or
certified check; and
(iii) a certificate executed by Buyer to the effect
that, except as otherwise stated in such certificate, each of Buyer's
representations and warranties in this Agreement was accurate in all
respects as of the date of this Agreement and is accurate in all
respects as of the Closing Date as if made on the Closing Date.
(c) Buyer and the Company will enter into a shareholders'
agreement in the form of Exhibit 2.4(c) (the "Shareholders' Agreement").
(d) The number of Shares purchased by Buyer shall be subject
to a repricing provision through the first anniversary date of Closing (the
"Repricing Date"), which shall provide that the Company shall be obligated to
issue to Buyer that number of additional Shares that equal the difference
between (i) the aggregate purchase price of the Shares divided by the average of
the high and low bid price of the Shares for the twenty (20) trading days prior
to the Repricing Date, and (ii) the number of Shares issued to Buyer pursuant to
this Agreement. If the Shares have been converted to shares of common stock, the
provisions set froth herein shall be applicable to the common stock shares.
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2.5 OPTION. At any time during the six (6) month period after the
purchase of the Shares, Buyer shall have the option to purchase an additional
18,571,428 Shares for $13,000,000 ($0.70 per share) subject to repricing by the
Repricing Date.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to Buyer as follows:
3.1 ORGANIZATION AND GOOD STANDING.
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own, lease and operate its
properties, to conduct its business as currently conducted and as proposed to be
conducted and to enter into and perform its obligations under this Agreement.
(b) The Company has made available to Buyer copies of its
Organizational Documents, as currently in effect.
(c) The Company has all necessary corporate power and
authority to execute and deliver this Agreement and each of the Documents to
which it is a party, and to perform its obligations hereunder and thereunder,
and to consummate the Transactions contemplated hereby. The execution and
delivery of this Agreement and the other Documents to which it is a party has
been authorized by all necessary corporate action on the part of the Company and
no other corporate proceedings or approvals are required on the part of the
Company to authorize this Agreement or the other Documents to which it is a
party or to consummate the Transactions. This Agreement and the other Documents
have been duly and validly executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Buyer, constitutes
the legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with its terms, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(d) The issuance and sale of the Shares have been duly
authorized and the Shares when issued to the Buyer for the consideration set
forth herein will be fully paid and non-assessable, with no personal liability
attached to the ownership thereof, and free of restrictions on transfer other
than under this Agreement.
3.2 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of the Company, enforceable in accordance with its terms. Upon the
execution and delivery by the Company of this Agreement and the Shareholders'
Agreement (collectively, the "the Company's Closing Documents"), the Company's
Closing Documents will constitute the legal, valid, and binding obligations of
the Company, enforceable in accordance with their respective terms. The Company
has the absolute and unrestricted right, power, authority, and capacity to
execute and
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deliver the Company's Closing Documents and to perform their obligations under
the Company's Closing Documents.
(b) Neither the execution and delivery of this Agreement nor
the consummation or performance of any of the Contemplated Transactions will,
directly or indirectly (with or without notice or lapse of time):
(i) contravene, conflict with, or result in a
violation of (A) any provision of the Organizational Documents of the
Company, or (B) any resolution adopted by the board of directors or the
stockholders of the Company;
(ii) contravene, conflict with, or result in a
violation of, or give any Governmental Body or other Person the right
to challenge any of the Contemplated Transactions or to exercise any
remedy or obtain any relief under, any Legal Requirement or any Order
to which the Company, or any of the assets owned or used by the
Company, may be subject;
(iii) contravene, conflict with, or result in a
violation of any of the terms or requirements of, or give any
Governmental Body the right to revoke, withdraw, suspend, cancel,
terminate, or modify, any Governmental Authorization that is held by
the Company or that otherwise relates to the business of, or any of the
assets owned or used by, the Company;
(iv) cause Buyer or the Company to become subject to,
or to become liable for the payment of, any Tax;
(v) cause any of the assets owned by the Company to
be reassessed or revalued by any taxing authority or other Governmental
Body;
(vi) contravene, conflict with, or result in a
violation or breach of any provision of, or give any Person the right
to declare a default or exercise any remedy under, or to accelerate the
maturity or performance of, or to cancel, terminate, or modify, any
Applicable Contract; or
(vii) result in the imposition or creation of any
Encumbrance upon or with respect to any of the assets owned or used by
the Company.
The Company is not required to give any notice to or obtain
any Consent from any Person in connection with the execution and delivery of
this Agreement or the consummation or performance of any of the Contemplated
Transactions.
3.3 CAPITALIZATION. As of the Closing Date, the authorized capital
stock of the Company will consist of (i) 50,000,000 shares of Common Stock, and
(ii) 2,000,000 shares of the Class A Preferred Stock. Prior to giving effect to
the transactions contemplated by this Agreement, there are issued and
outstanding approximately (1) 32,000,000 shares of Common Stock, all of which
are validly issued and fully paid and nonassessable, and (2) no other class of
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preferred stock. Except as set forth on Schedule 3.3, as of the date hereof
there will not be, any options, agreements, instruments or securities relating
to the issued or unissued stock of the Company, or obligating the Company to
issue, transfer, grant or sell any class of stock in the Company.
3.4 FINANCIAL STATEMENTS. The Company has delivered to Buyer: (a) its
Form 10-KSB for the fiscal year ending December 31, 2003. The Company has
delivered its unaudited balance sheet; and (b) an unaudited consolidated balance
sheet of the Company as at March 31, 2004 (the "Interim Balance Sheet") and the
related unaudited consolidated statements of income, changes in stockholders'
equity, and cash flow for the three months then ended, including in each case
the notes thereto. Such financial statements and notes fairly present the
financial condition and the results of operations, changes in stockholders'
equity, and cash flow of the Company as at the respective dates of and for the
periods referred to in such financial statements, all in accordance with GAAP,
subject, in the case of interim financial statements, to normal recurring
year-end adjustments (the effect of which will not, individually or in the
aggregate, be materially adverse) and the absence of notes (that, if presented,
would not differ materially from those included in the Balance Sheet); the
financial statements referred to in this Section 3.4 reflect the consistent
application of such accounting principles throughout the periods involved except
as disclosed in the notes to such financial statements. No financial statements
of any Person other than the Company are required by GAAP to be included in the
financial statements of the Company.
3.5 BOOKS AND RECORDS. The books of account, minute books, stock record
books, and other records of the Company, all of which have been made available
to Buyer, are complete and correct and have been maintained in accordance with
sound business practices and the requirements of the Securities Act including
the maintenance of an adequate system of internal controls. The minute book of
the Company contains accurate and complete records of all meetings held of, and
corporate action taken by, the stockholders, the Board of Directors, and
committees of the Board of Directors of the Company, and no meeting of any such
stockholders, Board of Directors, or committee has been held for which minutes
have not been prepared and are not contained in such minute books.
3.6 NO UNDISCLOSED LIABILITIES. The Company has no liabilities or
obligations of any nature (whether known or unknown and whether absolute,
accrued, contingent, or otherwise) except for liabilities or obligations
reflected or reserved against in the Balance Sheet or the Interim Balance Sheet
and current liabilities incurred in the Ordinary Course of Business since the
respective dates thereof.
3.7 NO MATERIAL ADVERSE CHANGE. Since the date of the Balance Sheet,
there has not been any material adverse change in the business, operations,
properties, prospects, assets, or condition of the Company, and no event has
occurred or circumstance exists that may result in such a material adverse
change.
3.8 COMPLIANCE WITH LEGAL REQUIREMENTS; GOVERNMENTAL AUTHORIZATIONS.
The following representations and warranties are true and correct:
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(i) The Company is in full compliance with each Legal
Requirement that is or was applicable to it or to the conduct or
operation of its business or the ownership or use of any of its assets;
(ii) No event has occurred or circumstance exists
that (with or without notice or lapse of time) (A) may constitute or
result in a violation by the Company of, or a failure on the part of
the Company to comply with, any Legal Requirement, or (B) may give rise
to any obligation on the part of the Company to undertake, or to bear
all or any portion of the cost of, any remedial action of any nature;
and
(iii) The Company has not received any notice or
other communication (whether oral or written) from any Governmental
Body or any other Person regarding (A) any actual, alleged, possible,
or potential violation of, or failure to comply with, any Legal
Requirement, or (B) any actual, alleged, possible, or potential
obligation on the part of the Company to undertake, or to bear all or
any portion of the cost of, any remedial action of any nature.
3.9 LEGAL PROCEEDINGS; ORDERS.
(a) There is no pending Proceeding:
(i) that has been commenced by or against the Company
or that otherwise relates to or may affect the business of, or any of
the assets owned or used by, the Company; or
(ii) that challenges, or that may have the effect of
preventing, delaying, making illegal, or otherwise interfering with,
any of the Contemplated Transactions.
To the Knowledge of the Company, (1) no such Proceeding has
been Threatened, and (2) no event has occurred or circumstance exists that may
give rise to or serve as a basis for the commencement of any such Proceeding.
(b) There is no Order:
(i) to which the Company, or any of the assets owned
or used by the Company, is subject; and
(ii) to which the Company is subject that relates to
the business of, or any of the assets owned or used by, the Company.
3.10 DISCLOSURE.
(a) No representation or warranty of the Company in this
Agreement omits to state a material fact necessary to make the statements herein
or therein, in light of the circumstances in which they were made, not
misleading.
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(b) No notice given pursuant to Section 5.5 will contain any
untrue statement or omit to state a material fact necessary to make the
statements therein or in this Agreement, in light of the circumstances in which
they were made, not misleading.
(c) There is no fact known to the Company that has specific
application to the Company (other than general economic or industry conditions)
and that materially adversely affects the assets, business, prospects, financial
condition, or results of operations of the Company that has not been set forth
in this Agreement.
3.11 BROKERS OR FINDERS. The Company has not incurred any obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payment in connection with this Agreement.
3.12 TAXES.
(a) The Company has filed or caused to be filed (on a timely
basis since 1999) all Tax Returns that are or were required to be filed pursuant
to applicable Legal Requirements. The Company has made available to Buyer copies
of all such Tax Returns filed since December 31, 2000. The Company has paid, or
made provision for the payment of, all Taxes that have or may have become due
pursuant to those Tax Returns or otherwise, or pursuant to any assessment
received by the Company.
(b) All Tax Returns filed by the Company are true, correct,
and complete. There is no tax sharing agreement that will require any payment by
the Company after the date of this Agreement.
3.13 INTELLECTUAL PROPERTY. The Company is not a party to nor does it
have any ownership in any intellectual property asset. The term "intellectual
property asset" for purposes of this Agreement includes the following:
(i) any business name, trade name, registered and
unregistered trademarks, service marks and applications;
(ii) patents, patent applications, inventions and
discoveries;
(iii) copyrights; or
(iv) know-how, trade secrets, confidential
information.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants to the
Company as follows:
4.1 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of The Republic
of South Korea.
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4.2 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
Upon the execution and delivery by Buyer of this Agreement and the Shareholders'
Agreement (collectively, the "Buyer's Closing Documents"), the Buyer's Closing
Documents will constitute the legal, valid, and binding obligations of Buyer,
enforceable against Buyer in accordance with their respective terms. Buyer has
the absolute and unrestricted right, power, and authority to execute and deliver
this Agreement and the Buyer's Closing Documents and to perform its obligations
under this Agreement and the Buyer's Closing Documents.
(b) Except as set forth in Schedule 4.2, neither the execution
and delivery of this Agreement by Buyer, nor the consummation or performance of
any of the Contemplated Transactions by Buyer, will give any Person the right to
prevent, delay, or otherwise interfere with any of the Contemplated Transactions
pursuant to:
(i) any provision of Buyer's Organizational
Documents;
(ii) any resolution adopted by the board of directors
or the stockholders of Buyer;
(iii) any Legal Requirement or Order to which Buyer
may be subject; or
(iv) any Contract to which Buyer is a party or by
which Buyer may be bound.
Except as set forth in Schedule 4.2, Buyer is not and
will not be required to obtain any Consent from any Person in connection with
the execution and delivery of this Agreement or the consummation or performance
of any of the Contemplated Transactions.
4.3 INVESTMENT INTENT. Buyer is acquiring the Shares for its own
account and not with a view to their distribution within the meaning of Section
2(11) of the Securities Act.
4.4 CERTAIN PROCEEDINGS. There is no pending Proceeding that has been
commenced against Buyer and that challenges, or may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, any of the
Contemplated Transactions. To Buyer's Knowledge, no such Proceeding has been
Threatened.
4.5 BROKERS OR FINDERS. Buyer and its officers and agents have incurred
no obligation or liability, contingent or otherwise, for brokerage or finders'
fees or agents' commissions or other similar payment in connection with this
Agreement and will indemnify and hold Sellers harmless from any such payment
alleged to be due by or through Buyer as a result of the action of Buyer or its
officers or agents.
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5. COVENANTS OF THE COMPANY PRIOR TO CLOSING DATE.
5.1 NOTIFICATION. Between the date of this Agreement and the Closing
Date, the Company will promptly notify Buyer in writing if the Company becomes
aware of any fact or condition that causes or constitutes a Breach of any
representations and warranties as of the date of this Agreement, or if it
becomes aware of the occurrence after the date of this Agreement of any fact or
condition that would (except as expressly contemplated by this Agreement) cause
or constitute a Breach of any such representation or warranty had such
representation or warranty been made as of the time of occurrence or discovery
of such fact or condition.
5.2 NO NEGOTIATION. Until such time, if any, as this Agreement is
terminated pursuant to Section 9, the Company will not, directly or indirectly
solicit, initiate, or encourage any inquiries or proposals from, discuss or
negotiate with, provide any non-public information to, or consider the merits of
any unsolicited inquiries or proposals from, any Person (other than Buyer)
relating to any transaction involving the sale of the business or assets (other
than in the Ordinary Course of Business) of the common stock of the Company, or
any merger, consolidation, business combination, or similar transaction
involving the Company.
5.4 BEST EFFORTS. The Company will use its Best Efforts to complete the
Contemplated Transaction.
6. COVENANTS OF BUYER PRIOR TO CLOSING DATE.
6.1 BEST EFFORTS. Buyer will use its Best Efforts to complete the
Contemplated Transaction.
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE. Buyer's obligation to
purchase the Shares and to take the other actions required to be taken by Buyer
at the Closing is subject to the satisfaction, at or prior to the Closing, of
each of the following conditions (any of which may be waived by Buyer, in whole
or in part):
7.1 ACCURACY OF REPRESENTATIONS.
(a) All of the Company's representations and warranties in
this Agreement (considered collectively), and each of these representations and
warranties (considered individually), must have been accurate in all material
respects as of the date of this Agreement, and must be accurate in all material
respects as of the Closing Date as if made on the Closing Date.
(b) The Company's representations and warranties must have
been accurate in all respects as of the date of this Agreement, and must be
accurate in all respects as of the Closing Date as if made on the Closing Date.
7.2 THE COMPANY'S PERFORMANCE.
(a) All of the covenants and obligations that the Company is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing (considered
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collectively), and each of these covenants and obligations (considered
individually), must have been duly performed and complied with in all material
respects.
(b) Each document required to be delivered pursuant to Section
2.4 must have been delivered, and each of the other covenants and obligations of
this Agreement must have been performed and complied with in all respects.
7.3 NO PROCEEDINGS. Since the date of this Agreement, there must not
have been commenced or Threatened against Buyer, or against any Person
affiliated with Buyer, any Proceeding (a) involving any challenge to, or seeking
damages or other relief in connection with, any of the Contemplated
Transactions, or (b) that may have the effect of preventing, delaying, making
illegal, or otherwise interfering with any of the Contemplated Transactions.
7.4 NO PROHIBITION. Neither the consummation nor the performance of any
of the Contemplated Transactions will, directly or indirectly (with or without
notice or lapse of time), materially contravene, or conflict with, or result in
a material violation of, or cause Buyer or any Person affiliated with Buyer to
suffer any material adverse consequence under, (a) any applicable Legal
Requirement or Order, or (b) any Legal Requirement or Order that has been
published, introduced, or otherwise proposed by or before any Governmental Body.
7.5 SHAREHOLDER CONSENT. The Company shall have received a consent from
the majority of shareholders to amend the Articles of Incorporation to increase
the number of shares of common stock from 50,000,000 shares to 200,000,000
shares.
7.6 WOOJU STOCK PURCHASE AGREEMENT. The Closing described in the Wooju
Stock Purchase Agreement shall have occurred.
8. CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATION TO CLOSE; CONDITIONS
SUBSEQUENT. The Company's obligation to sell and issue the Shares and to take
the other actions required to be taken by the Company at the Closing is subject
to the satisfaction, at or prior to the Closing, of each of the following
conditions (any of which may be waived by the Company, in whole or in part):
8.1 ACCURACY OF REPRESENTATIONS. All of Buyer's representations and
warranties in this Agreement (considered collectively), and each of these
representations and warranties (considered individually), must have been
accurate in all material respects as of the date of this Agreement and must be
accurate in all material respects as of the Closing Date as if made on the
Closing Date.
8.2 BUYER'S PERFORMANCE.
(a) All of the covenants and obligations that Buyer is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing (considered collectively), and each of these covenants and
obligations (considered individually), must have been performed and complied
with in all material respects.
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(b) Buyer must have delivered each of the documents required
to be delivered by Buyer pursuant to Section 2.4 and must have made the cash
payments required to be made by Buyer pursuant to Sections 2.4(b)(i) and
2.4(b)(ii).
8.3 NO INJUNCTION. There must not be in effect any Legal Requirement or
any injunction or other Order that (a) prohibits the sale and issuance of the
Shares by the Company to Buyer, and (b) has been adopted or issued, or has
otherwise become effective, since the date of this Agreement.
8.4 CONDITIONS SUBSEQUENT. The following conditions and covenants shall
remain in effect for one year following the Closing:
(a) The Company shall file with the Securities and Exchange
Commission a proxy statement (or information statement) to effectuate an
amendment to its Articles of Incorporation to increase the number of shares of
common stock authorized for issuance to comply with the conversion provisions of
the Class A Preferred Stock as soon as reasonably possible after the Closing.
(b) The Company shall undertake the principal responsibility
of identifying public relations firms, market makers and investment banking
firms for the purpose of increasing the awareness of the Company and its
operating subsidiaries and Buyer to the public.
(c) Within thirty (30) days after the First Anniversary Date
of Closing, the Company shall prepare and deliver an accounting of all sales of
products in the United States which are manufactured and distributed by Buyer.
If the total gross sales of products is at least $10,000,000 for the
twelve-month period, the repricing provisions set forth in Section 2.4 shall be
not applicable. If, however, the gross sales are less than $10,000,000, the
Company shall issue to Buyer up to Two Million (2,000,000) additional shares of
common stock of Buyer based on the ratio that actual sales bears to the target
sales of $10,000,000. For example, if the total gross sales made by the Company
is $5,000,000, the Company shall issue 1,000,000 shares to Buyer.
(d) Buyer shall have pre-emptive rights for all additional
shares issued by the Company to maintain its percentage interest in the Company.
The price to be paid for any additional shares shall be the same price paid by
any third-party purchaser.
9. TERMINATION.
9.1 TERMINATION EVENTS. This Agreement may, by notice given prior to or
at the Closing, be terminated:
(a) by either Buyer or the Company if a material Breach of any
provision of this Agreement has been committed by the other party and such
Breach has not been waived;
(b) by mutual consent of Buyer and the Company; or
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(c) by either Buyer or the Company if the Closing has not
occurred (other than through the failure of any party seeking to terminate this
Agreement to comply fully with its obligations under this Agreement) on or
before May 31, 2004 or such later date as the parties may agree upon.
9.2 EFFECT OF TERMINATION. Each party's right of termination under
Section 9.1 is in addition to any other rights it may have under this Agreement
or otherwise, and the exercise of a right of termination will not be an election
of remedies. If this Agreement is terminated pursuant to Section 9.1, all
further obligations of the parties under this Agreement will terminate, except
that the obligations in Sections 11.1 and 11.3 will survive; provided, however,
that if this Agreement is terminated by a party because of the Breach of the
Agreement by the other party or because one or more of the conditions to the
terminating party's obligations under this Agreement is not satisfied as a
result of the other party's failure to comply with its obligations under this
Agreement, the terminating party's right to pursue all legal remedies will
survive such termination unimpaired.
10. INDEMNIFICATION
10.1 INDEMNIFICATION AND PAYMENT OF DAMAGES BY COMPANY. The Company
will indemnify and hold harmless Buyer, and will pay to Buyer the amount of any
damages arising, directly or indirectly, from or in connection with (a) any
Breach of any representation or warranty made by the Company in this Agreement
or in any certificate delivered by the Company pursuant to this Agreement, (b)
any Breach by the Company of any covenant or obligation of the Company in this
Agreement, or (c) any claim by any Person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or understanding
alleged to have been made by such Person with the Company (or any Person acting
on its behalf) in connection with any of the Contemplated Transactions.
10.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER. Buyer will
indemnify and hold harmless the Company, and will pay to the Company the amount
of any damages arising, directly or indirectly, from or in connection with (a)
any Breach of any representation or warranty made by Buyer in this Agreement or
in any certificate delivered by Buyer pursuant to this Agreement, (b) any Breach
by Buyer of any covenant or obligation of Buyer in this Agreement, or (c) any
claim by any Person for brokerage or finder's fees or commissions or similar
payments based upon any agreement or understanding alleged to have been made by
such Person with Buyer (or any Person acting on its behalf) in connection with
any of the Contemplated Transactions.
10.3 TIME LIMITATIONS. If the Closing occurs, the Company will have no
liability (for indemnification or otherwise) with respect to any representation
or warranty, or covenant or obligation to be performed and complied with prior
to the Closing Date, other than those in Section 3.3, unless on or before
December 31, 2004 Buyer notifies the Company of a claim specifying the factual
basis of that claim in reasonable detail to the extent then known by Buyer; a
claim with respect to Section 3.3, or a claim for indemnification or
reimbursement not based upon any representation or warranty or any covenant or
obligation to be performed and complied with prior to the Closing Date, may be
made at any time. If the Closing occurs, Buyer will have
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no liability (for indemnification or otherwise) with respect to any
representation or warranty, or covenant or obligation to be performed and
complied with prior to the Closing Date, unless on or before December 31, 2004
the Company notifies Buyer of a claim specifying the factual basis of that claim
in reasonable detail to the extent then known by the Company.
11. GENERAL PROVISIONS.
11.1 EXPENSES. Except as otherwise expressly provided in this
Agreement, each party to this Agreement will bear its respective expenses
incurred in connection with the preparation, execution, and performance of this
Agreement and the Contemplated Transactions, including all fees and expenses of
agents, representatives, counsel, and accountants. In the event of termination
of this Agreement, the obligation of each party to pay its own expenses will be
subject to any rights of such party arising from a breach of this Agreement by
another party.
11.2 PUBLIC ANNOUNCEMENTS. Any public announcement or similar publicity
with respect to this Agreement or the Contemplated Transactions will be issued,
if at all, at such time and in such manner as Buyer and the Company, jointly
determines.
11.3 CONFIDENTIALITY. Between the date of this Agreement and the
Closing Date, Buyer and the Company will maintain in confidence, and will cause
the directors, officers, employees, agents, and advisors of Buyer and the
Company to maintain in confidence the terms of this Agreement unless (a) such
information is already known to such party or to others not bound by a duty of
confidentiality or such information becomes publicly available through no fault
of such party, (b) the use of such information is necessary or appropriate in
making any filing or obtaining any consent or approval required for the
consummation of the Contemplated Transactions, or (c) the furnishing or use of
such information is required by or necessary or appropriate in connection with
legal proceedings.
11.4 NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
THE COMPANY:
SIMEX Technologies, Inc.
0000 Xxxxxxxx Xxxxx, XX
Xxxxxxx, XX 00000
Attention: Xx. X. Xxxxxx Xxxx
with a copy to:
Xxxxxxxxx Traurig, LLP
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0000 Xxxxxxxxx Xxxxxxx XX, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
BUYER:
Wooju Communications Co., Ltd.
000-0 Xxxxxxx-xxxx
Xxxxxxx-xx
Incheon 405-300 KOREA
Attention: Xx. Xxxxx-Xxx Xxx, President
11.5 FURTHER ASSURANCES. The parties agree (a) to furnish upon request
to each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement.
11.6 WAIVER. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by any
party in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (a) no claim or right arising out of
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement or the documents referred to in this Agreement.
11.7 ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all
prior agreements between the parties with respect to its subject matter
(including the Amended and Restated Letter of Intent, as amended, between Buyer
and the Company dated March __, 2004) and constitutes (along with the documents
referred to in this Agreement) a complete and exclusive statement of the terms
of the agreement between the parties with respect to its subject matter. This
Agreement may not be amended except by a written agreement executed by the party
to be charged with the amendment.
11.8 SEVERABILITY. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
11.9 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this
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Agreement. All words used in this Agreement will be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms.
11.10 TIME OF ESSENCE. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
11.11 GOVERNING LAW. This Agreement will be governed by the laws of the
State of Delaware without regard to conflicts of laws principles.
11.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
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- Signatures follow on next page. -
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Signature page to SIMEX Stock Purchase Agreement between
Wooju Communications Company, Ltd. and SIMEX Technologies, Inc.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
BUYER:
Wooju Communications Company, Ltd.
By: /s/ Xxxxx-Xxx Xxx
-------------------------------
Name: Xxxxx-Xxx Xxx
Title: President
THE COMPANY:
SIMEX Technologies, Inc.
By: /s/ Xxxxx X. Jagelid
-------------------------------
Name: Xxxxx X. Jagelid
Title: President & CEO
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Exhibit 2.4(a)
CERTIFICATE OF RIGHTS AND PREFERENCES OF THE
CLASS A PREFERRED STOCK
Exhibit 2.4(c)
SHAREHOLDERS' AGREEMENT
