MEMORANDUM OF UNDERSTANDING
EXHIBIT 10.4
THIS MEMORANDUM OF UNDERSTANDING, dated as of this 15th day of November, 2015 (the "MOU"), is by and between Solarflex Corp., a Delaware corporation with offices located at 2 Abba Hillel Silver Street, 11th Floor, Ramat Gan 52506 Israel (the "Company") and Xxxxx Xxxxxxx Xx, a resident of Indonesia with an address at Xxxxxxxx Xxxxxxxxx Xxxxxx, X0. 42, Medan 20152, Indonesia ("Xx. Xx"). The Company and Xx. Xx are sometimes referred to individually, as a "Party" and collectively, as the “Parties.”
RECITALS
WHEREAS, on November 10, 2015, the Company, International Executive Consulting
SPRL, an entity organized under the laws of Belgium ("IEC") and Xx. Xx entered
into an agreement pursuant to which the Company and IEC agreed that the Company
will return certain machinery (the "Equipment") to IEC, which Equipment IEC sold
and transferred to the Company under an Asset Purchase Agreement dated May 14,
2013 (the "APA") in consideration for the issuance of 60,000,000 shares of the
Company's common stock, par value $0.0001(the "Shares") and IEC will transfer
and assign the Shares (the "Rescission Agreement");
WHEREAS, as a result of the Rescission Agreement and the determination by the
Company that it did not intend to further pursue its business plan involving the
use and commercial exploitation of the Equipment, the Company and Xx. Xx agreed
to pursue certain business owned by an entity controlled by Xx. Xx;
WHEREAS, Xx. Xx, as the control shareholder and principal of PT Kinerja
Indonesia, a company organized under the laws of Indonesian ("PT Kinerja"),
which entity owns, among other interests, KinerjaPay, an eCommerce platform that
is used to: (i) facilitate users' buying and selling activities; (ii) provide
eWallet service that allows users to make payments on merchant sites; and (iii)
allow users to gamify their shopping experience, among other features that
provide users an end-to-end solution for shopping, game playing and saving ("KinerjaPay");
WHEREAS, the Company and Xx. Xx entered into this MOU, subject to the execution
and delivery of a definitive agreement within 45 days of this MOU (the
"Definitive Agreement"), as follows: (i ) Xx. Xx agreed to cause PT Kinerja to
grant the Company the exclusive, world-wide license and right to KinerjaPay IP;
and (ii) appoint Xx. Xx as a director and chairman of the board of directors of
the Company; and
WHEREAS, the Company and Xx. Xx acknowledge and agree that they shall use their
best efforts to complete the execution and delivery and the closing of the
Definitive Agreement on or before December 31, 2015 (the "Closing").
NOW, THEREFORE, the Parties hereto hereby agree as follows:
Section 1. Purpose of this MOU:
The purpose of this MOU is to set out the general terms and conditions of the
contemplated Definitive Agreement pursuant to which the Company will own an the
exclusive, world wide license to KinerjaPay IP (the "License") upon the closing
of the Definitive Agreement (the "Closing").
Section 2. The Closing Transaction:
At the Closing, PT Kinerja shall grant and the Company shall accept the License,
pursuant to the terms and conditions and during the term set forth in the
Definitive Agreement.
Section 3. Conditions Precedent:
The Parties hereby agree that the following conditions precedent are fundamental
to the transaction contemplated herein and to the Closing of the Definitive
Agreement:
3.1 The Company and Xx. Xx will have the right to conduct reasonable due
diligence;
3.2 Neither the Company nor the KinerjaPay IP shall suffer any material adverse
events from the date of this MOU to the Closing; and
3.3 The execution of this MOU does not and will not: (i) constitute a violation
of the charter documents of the Company or PT Kinerja; or (ii) constitute a
violation of any statute, judgment, order, decree or regulation or rule of any
court, governmental authority or arbitrator applicable or relating to the
Company or PT Kinerja.
Section 4. Conditions to Closing:
4.1 The KinerjaPay License shall be free and clear of any liens, claims,
encumbrances, obligations, liabilities to PT Kinerja or any third party and
shall permit the Company to commercially exploit the License without limitation;
4.2 The Definitive Agreement shall have been duly authorized, executed and
delivered by the Company and PT Kinerja and shall constitute the legal, valid
and binding obligation of the Parties and PT Kinerja, enforceable in accordance
with its terms, except as may be limited by bankruptcy, reorganization,
insolvency and similar laws of general application relating to or affecting the
enforcement of rights of creditors. shall have been duly authorized by the Board
of Directors of the Company and PT Kinerja; and
4.3 The Parties and PT Kinerja shall represent, among other things, that each
has the power and authority to enter into this MOU and the Definitive Agreement
without the necessity of obtaining any consent, approval, authorization or
waiver or giving any notice or otherwise
Section 5. The Definitive Agreement:
5.1 Immediately after the execution of this MOU, the Parties will negotiate in
good faith the terms of the Definitive Agreement and will devote their best
efforts to execute and deliver the Definitive Agreements as soon as practically
possible, however, not later than December 31, 2015.
5.2 In the event that the Parties are not successful in executing the Definitive
Agreements for any reason whatsoever within the timeframe set forth in Section
5.1 above, this MOU will terminate and become null and void and will not bind
the Parties in any way except as specifically otherwise provided in this MOU,
unless the Parties shall agree in writing to extend the period.
5.3 Notwithstanding the generality of the foregoing, this MOU will terminate
with immediate effect upon the signing of the Definitive Agreement.
Section 6. Miscellaneous:
6.1 Confidential Information. Subject to any applicable law or regulation, all
information supplied to any of the Parties in the preparation, signing and
performance of this MOU or of the Definitive Agreement (the "Confidential
Information") shall be considered as proprietary and confidential information of
the Party disclosing such Confidential Information. The Parties hereto shall not
disclose any Confidential Information to any other person without the prior
written consent of the other Party. Notwithstanding the foregoing, the Parties
may disclose Confidential Information to their attorneys, auditors, consultants,
advisors and key employees who have a need to know such Confidential Information
for the purpose of the performance of this MOU or the negotiations and
performance related to the Definitive Agreement (the "Representatives"),
provided, however, that each Party shall take all reasonable steps and
precautions to assure that its respective Representatives to whom such
disclosure is made will act in accordance with the terms of this MOU as if each
of them were a Party hereto, and that each Party shall be responsible for any
breach of this MOU by any of its respective Representatives. Anything herein to
the contrary notwithstanding, this clause 6.1 (Confidential Information) shall
be binding upon the Parties and remain in force for 2 years following the
termination of this MOU for any reason whatsoever.
6.2 Non-Assignment. The provisions of this MOU shall inure to the benefit of the
Parties hereto and their respective successors and assigns, provided that no
Party may assign, delegate or otherwise transfer any of its rights or
obligations under this MOU without the consent of each other Party hereto.
6.3 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 other matters set
forth herein.
6.4 Counterparts; Effectiveness. This MOU may be signed in any number of
counterparts, including in electronic format, each of which shall be deemed an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
6.5 Governance and Jurisdiction. This MOU shall be governed in all respects by
the laws of State of New York, USA, without regard to the principles of conflict
of law, and the relevant courts of New York City, New York, USA, will have
exclusive jurisdiction over all matters arising from this MOU.
6.6 Amendments. Any modification or amendment to this MOU shall be void unless
made in writing and signed by the Parties to this MOU.
6.7 Non-Binding Nature. Other than the provisions explicitly stated in this MOU
to be binding, no other provision of this MOU shall be legally binding upon the
Parties.
IN WITNESS WHEREOF, the Parties have signed this MOU on the date first written
above.
SOLARFLEX CORP.
/s/: Xxxxxx Xxxxx
Xxxxxx Xxxxx, Chairman and President
XXXXX XXXXXXX XX,
Individually and on behalf of PT Kinerja
/s/: Xxxxx Xxxxxxx Xx
Xxxxx Xxxxxxx Xx
