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EXHIBIT 10.1(a)
AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
MAILE INTERNATIONAL, INC.
AND
SIMEX A.S.
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TABLE OF CONTENTS
1. Plan of Reorganization................................................................................ 1
2. Exchange of Shares ................................................................................... 1
3. Pre-Closing Events.................................................................................... 2
4. Exchange of Securities................................................................................ 2
5. Post Acquisition Events............................................................................... 3
6. Other Matters......................................................................................... 3
7. Delivery of Shares.................................................................................... 4
8. Representations of Simex Shareholders................................................................. 4
9. Representations of Simex.............................................................................. 4
10. Representations of Maile and Mower.................................................................... 6
11. Closing............................................................................................... 8
12. Conditions Precedent to the Obligations of Simex...................................................... 8
13. Conditions Precedent to the Obligations of Maile...................................................... 10
14. Indemnification....................................................................................... 10
15. Nature and Survival of Representations................................................................ 11
16. Documents at Closing.................................................................................. 11
17. Finder's Fees......................................................................................... 12
18. Miscellaneous......................................................................................... 12
19. Signature Page........................................................................................ 13
Exhibit A - Simex Stockholder Schedule
Exhibit B - Amendment to Articles of Incorporation
Exhibit C - Investment Letter
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AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (hereinafter the
"Agreement") is entered into effective as of this ___ day of _________________
1998, by and among Maile International, Inc., a Nevada corporation (hereinafter
"Maile"); Xxxxx Xxxxx, the sole officer and director of Maile (hereinafter
"Mower"); Simex A.S., a Norwegian corporation (hereinafter "Simex"), and the
owners of all the outstanding shares of common stock of Simex (hereinafter the
"Simex Stockholders").
RECITALS:
WHEREAS, the Simex Stockholders own all of the issued and outstanding
common stock of Simex which comprises 200 shares (the "Simex Common Stock").
Maile desires to acquire the Simex Common Stock solely in exchange for voting
common stock of Maile, making Simex a wholly-owned subsidiary of Maile; and
WHEREAS, the Simex Stockholders (as set forth on the attached Exhibit
"A") desire to acquire voting common stock of Maile in exchange for the Simex
Common Stock, as more fully set forth herein.
NOW THEREFORE, for the mutual consideration set out herein, and other
good and valuable consideration, the legal sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. PLAN OF REORGANIZATION. It is hereby agreed that all of the
Simex Common Stock shall be acquired by Maile in exchange solely for Maile
common voting stock (the "Maile Shares"). It is the intention of the parties
hereto that all of the issued and outstanding shares of capital stock of Simex
shall be acquired by Maile in exchange solely for Maile common voting stock and
that this entire transaction qualify as an organizational exchange under
Section 351 of the Internal Revenue Code of 1986, as amended, and related or
other applicable sections thereunder and/or a corporate reorganization under
Section 368(a)(1)(B).
2. EXCHANGE OF SHARES. Maile and Simex Stockholders agree that
on the Closing Date or at the Closing as hereinafter defirted, the Simex Common
Stock shall be delivered at Closing to Maile in exchange for the Maile Shares,
after giving effect to a 2.21 to 1 reverse stock split (the "Maile Reverse
Stock Split") as to all presently outstanding shares of Maile common stock, as
follows:
(a) At Closing, Maile shall, subject to the conditions set forth
herein, issue an aggregate of 6,000,000 shares of Maile common stock for
immediate delivery to the Simex Stockholders on the basis of 30,000 Maile
Shares for each one Simex share of Simex Common Stock.
(b) At Closing, Maile shall deliver to a mutually acceptable escrow
agent (the "Escrow Agent") 1,500,000 shares of its common stock (the "Escrow
Shares") registered in the names of
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the Simex Stockholders on the basis of 7,500 Maile Shares for each outstanding
share of Simex Conunon Stock. The Escrow Shares shall be held by the Escrow
Agent until Simex delivers its year-end consolidated audited financial
statements for the year ended December 3 1, 1998 or 1999 (the "1998 or 1999
Financial Statements"), to Escrow Agent. If said financial statements, prepared
in compliance with all standards imposed by the Securities and Exchange
Commission for reporting companies such as the surviving public company in the
transactions described in this agreement, reflect earnings, before income taxes
and extraordinary items of depreciation as allowed by Norwegian law, in an
amount of at least $1,800,000 USD (based on an exchange rate not to exceed 7.32
NOK per USD), the Escrow Agent shall deliver the Escrow Shares to the Simex
Stockholders and the escrow shall terminate. If however, the 1998 or 1999
Financial Statements do not reflect at least $1,800,000 earnings as described
herein, the Escrow Agent shall deliver the Escrow Shares to Maile's transfer
agent for immediate cancellation.
(c) Each Simex Stockholder shall execute this Agreement.
(d) Unless otherwise agreed by Maile and Simex this transaction shall
close only in the event Maile is able to acquire all of the outstanding Simex
Common Stock.
3. PRE-CLOSING EVENTS. The Closing is subject to the completion
of the following:
(a) Maile shall have authorized 50,000,000 shares of $.001 par value
common stock and 5,000,000 shares of $.001 par value preferred stock. The
preferred stock shall be subject to issuance in such series and with such
rights, preferences and designations as determined in the sole discretion of
the board of directors.
(b) Maile shall have effectuated the Maile Reverse Stock Split at or
prior to Closing, and shall have 2,512,857 shares of its common stock issued
and outstanding and no other shares of capital stock issued or outstanding.
(c) Maile shall demonstrate to the reasonable satisfaction of Simex
that it has no material assets and no liabilities contingent or fixed.
4. EXCHANGE OF SECURITIES. As of the Closing Date each of the
following shall occur:
(a) Each share of Simex Common Stock issued and outstanding
immediately prior to the Closing Date shall be exchanged for (a) 30,000 Maile
Shares to be delivered at Closing, and (b) 7,500 Maile Shares to be delivered
into escrow and held by the Escrow Agent on behalf of the Simex Stockholders.
All such outstanding shares of Sirnex Common Stock shall be deemed, after
Closing, to be owned by Maile. The holders of such certificates previously
evidencing shares of Simex Common Stock outstanding immediately prior to the
Closing Date shall cease to have any rights with respect to such shares of
Simex Common Stock except as otherwise provided herein or by law;
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(b) Any shares of Simex Common Stock held in the treasury of Simex
immediately prior to the Closing Date shall automatically be canceled and
extinguished without any conversion thereof and no payment shall be made with
respect thereto;
(c) The 2,512,857 shares of Maile common stock previously issued and
outstanding prior to the Closing will remain outstanding.
5. OTHER EVENTS OCCURRING AT CLOSING. At Closing, the following
shall be accomplished:
(a) Maile shall file an amendment to its Articles of Incorporation
with the Secretary of State of the State of Nevada in substantially the form
attached hereto as Exhibit "B" effecting an amendment to its Articles of
Incorporation, to reflect a name change, authorize the Series A Cumulative
Preferred Stock and to accomplish the Maile Reverse Stock Split, all as set
forth in the attached Exhibit "B".
(b) The resignation of the existing Maile officers and directors and
appointment of new officers and directors as described in Section 12(f) hereof.
(c) Maile shall have completed (i) a private placement of 357,142
shares of its common stock at $1.40 per share and (ii) a private placement of
1, 130,000 shares of Series A Cumulative Preferred Stock at $1.90 per share.
The gross proceeds of these offerings (the "Maile Financing") shall be
$2,647,000, which amount, less $100,000 costs, shall be delivered to the
control of new management of Maile at Closing in good funds. IMe Maile
Financing shall have been completed in compliance with all applicable state and
federal securities laws and the securities sold shall be delivered at Closing
to the investors in the Maile Financing. The terms and conditions of the Series
A Cumulative Preferred Stock are set forth in the attached Exhibit "B", which
is by the reference incorporated herein.
6. OTHER MATTERS.
(a) Except for the recapitalization of Maile, including the Maile
Reverse Stock Split, there shall be no stock dividend, stock split,
recapitalization, or exchange of shares with respect to or rights issued in
respect of, Maile's capital stock after the date hereof and there shall be no
dividends paid on Maile's capital stock after the date hereof, in each case
through and including the Closing Date.
(b) Simex shall have received all requisite director and shareholder
approval of all matters set forth herein, and no shareholder of Simex shall
have exercised any dissenters rights under applicable corporate law.
(c) The acquisition of ownership of all outstanding Simex Common Stock
shall be in compliance with Norwegian law and any applicable Norwegian
regulations governing ownership of stock of a Norwegian corporation.
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(d) Maile shall have received all requisite shareholder approval of
the matters set forth herein.
(e) All parties hereto acknowledge and recognize that as an integral
part of the consideration given herein and as an inducement to the investors in
the Maile Financing, Maile has agreed and committed to immediately proceed,
upon Closing, to obtain all necessary audited financial statements and to
commence preparation for filing, as soon as practicable, a registration
statement with the Securities and Exchange Commission ("S.E.C."), registering
for resale the shares of Maile common stock issued or issuable in the Maile
Financing. Therefore Maile, with the complete cooperation of Simex, hereby
agrees to commence preparation of said registration statement for filing with
the S.E.C. and all applicable state jurisdictions and to attempt to file such
registration statement within three months of Closing and to prosecute the same
with all diligence to effectiveness.
7. DELIVERY OF SHARES. On or as soon as practicable after the
Closing Date, Simex will use its best efforts to cause the Simex Stockholders
to surrender for cancellation certificates representing their shares of Simex
Common Stock, against delivery of certificates representing the Maile Shares
for which the shares of Simex Common Stock are to be exchanged at Closing.
8. REPRESENTATIONS OF SIMEX STOCKHOLDERS. Simex Stockholders
hereby represent and warrant each only as to its own Simex Common Stock,
effective this date and the Closing Date as follows:
(a) Except as may be set forth in Exhibit "A", the Simex Common Stock
is free from claims, liens, or other encumbrances, and at the Closing Date
Simex Stockholders will have good title and the unqualified right to transfer
and dispose of such Simex Common Stock.
(b) Each Simex Stockholder, respectively, is the sole owner of the
issued and outstanding Simex Common Stock as set forth in Exhibit "A";
(c) No Simex Stockholder has the present intent to sell or dispose of
the Maile Shares and no Simex Stockholder is under a binding obligation, formal
commitment, or existing plan to sell or otherwise dispose of the Maile Shares.
9. REPRESENTATIONS OF SIMEX. Simex hereby represents and
warrants as follows, which warranties and representations shall also be true as
of the Closing Date:
(a) Except as noted on Exhibit "A", the Simex Stockholders listed on
the attached Exhibit "A" are the sole owners of record and beneficially of the
issued and outstanding common stock of Simex.
(b) Simex has no outstanding or authorized capital stock, warrants,
options or convertible securities other than as described in the Simex
Financial Statements or in Exhibit "A", attached hereto.
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(c) The unaudited financial statements as of and for the years ended
December 31, 1996 and 1997, which have been delivered to Maile (hereinafter
referred to as the "Simex Financial Statements") are complete and accurate and
fairly present the financial condition of Simex as of the dates thereof and the
results of its operations for the periods covered. There are no material
liabilities or obligations, either fixed or contingent, not disclosed in the
Simex Financial Statements or in any exhibit thereto or notes thereto other
than contracts or obligations in the ordinary course of business; and no such
contracts or obligations in the ordinary course of business constitute liens or
other liabilities which materially alter the financial condition of Simex as
reflected in the Simex Financial Statements. Simex has good title to all
assets shown on the Simex Financial Statements subject only to dispositions and
other transactions in the ordinary course of business, the disclosures set
forth therein and liens and encumbrances of record. The Simex Financial
Statements have been prepared in accordance with Norwegian generally accepted
accounting principles consistently applied (except as may be indicated therein
or in the notes thereto) and reconciled to U.S. generally accepted accounting
principles.
(d) Since the date of the Simex Financial Statements, there have not
been any material adverse changes in the financial position of Simex except
changes arising in the ordinary course of business, which changes will in no
event materially and adversely affect the financial position of Simex.
(e) Simex is not a party to any material pending litigation or, to its
best knowledge, any governmental investigation or proceeding, not reflected in
the Simex Financial Statements, and to its best knowledge, no material
litigation, claims, assessments or any governmental proceedings are threatened
against Simex.
(f) Simex is in good standing in its jurisdiction of incorporation,
and is in good standing and duly qualified to do business in each jurisdiction
where required to be so qualified except where the failure to so qualify would
have no material negative impact on Simex.
(g) Simex has (or, by the Closing Date, will have filed) all material
tax, governmental and/or related forms and reports (or extensions thereof) due
or required to be filed and has (or will have) paid or made adequate provisions
for all taxes or assessments which have become due as of the Closing Date.
(h) Simex has not materially breached any material agreement to which
it is a party. Simex has previously given Maile copies or access thereto of all
material contracts, commitments and/or agreements to which Simex is a party
including all relationships or dealings with related parties or affiliates.
(i) Simex has no subsidiary corporations except as described in
writing to Maile.
(j) Simex has made all material corporate financial records, minute
books, and other corporate documents and records available for review to
present management of Maile prior to the Closing Date, during reasonable
business hours and on reasonable notice.
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(k) The execution of this Agreement does not materially violate or
breach any material agreement or contract to which Simex is a party and has
been duly authorized by all appropriate and necessary corporate action under
Norwegian law and Simex, to the extent required, has obtained all necessary
approvals or consents required by any agreement to which Simex is a party.
(1) All information regarding Simex which is set forth in its
Confidential Business Plan or otherwise delivered to Maile by Simex for use in
connection with the transaction (the "Acquisition") described herein is true,
complete and accurate in all material respects.
10. REPRESENTATIONS OF MAILE AND MOWER. Maile, and Mower to the
best of his knowledge, hereby jointly and severally represent and warrant as
follows, each of which representations and warranties shall continue to be true
as of the Closing Date:
(a) As of the Closing Date, the Maile Shares, (including the Escrow
Shares) to be issued and delivered to the Simex Stockholders hereunder will,
when so issued and delivered, constitute, duly authorized, validly and legally
issued shares of Maile common stock, fully-paid and nonassessable.
(b) Maile has the corporate power to enter into this Agreement and to
perform its respective obligations hereunder. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the board of directors of Maile. The execution and
performance of this Agreement will not constitute a material breach of any
agreement, indenture, mortgage, license or other instrument or document to
which Maile is a party and will not violate any judgment, decree, order, writ,
rule, statute, or regulation applicable to Maile or its properties. The
execution and performance of this Agreement will not violate or conflict with
any provision of the Articles of Incorporation or bylaws of Maile.
(c) Maile has delivered to Simex a true and complete copy of its
audited financial statements for the years ended December 31, 1996 and 1997,
(the "Maile Financial Statements"). The Maile Financial Statements are
complete, accurate and fairly present the financial condition of Maile as of
the dates thereof and the results of its operations for the periods then ended.
There are no material liabilities or obligations either fixed or contingent not
reflected therein except as provided in subparagraph (e) below. The Maile
financial statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as may be indicated
therein or in the notes thereto) and fairly present the financial position of
Maile as of the dates thereof and the results of its operations and changes in
financial position for the periods then ended.
(d) Since December 31, 1997, there have not been any material adverse
changes in the financial condition of Maile except with regard to disbursements
to pay reasonable and ordinary expenses in connection with maintaining its
corporate status and pursuing the matters contemplated in this Agreement. Prior
to Closing, all advances payable, all accounts payable and other liabilities of
Maile shall be paid and satisfied in full.
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(e) Maile is not a party to or the subject of any pending litigation,
claims, or governmental investigation or proceeding not reflected in the Maile
Financial Statements or otherwise disclosed herein, and there are no lawsuits,
claims, assessments, investigations, or similar matters, to the best knowledge
of Mower, threatened or contemplated against or affecting Maile, its management
or its properties.
(f) Maile is duly organized, validly existing and in good standing
under the laws of the State of Nevada; has the corporate power to own its
property and to carry on its business as now being conducted and is duly
qualified to do business in any jurisdiction where so required except where the
failure to so qualify would have no material negative impact on it.
(g) Maile has filed all federal, state, county and local income,
excise, property and other tax, governmental and/or related returns, forms, or
reports, which are due or required to be filed by it prior to the date hereof,
except where the failure to do so would have no material adverse impact on
Maile, and has paid or made adequate provision in the Maile Financial
Statements for the payment of all taxes, fees, or assessments which have or may
become due pursuant to such returns or pursuant to any assessments received.
Maile is not delinquent or obligated for any tax, penalty, interest,
delinquency or charge.
(h) There are no existing options, calls, warrants, preemptive rights
or commitments of any character relating to the issued or unissued capital
stock or other securities of Maile, except as contemplated in this agreement.
(i) The corporate financial records, minute books, and other documents
and records of Maile have been made available to Simex prior to the Closing.
(j) Maile has not breached, nor is there any pending, or to the
knowledge of management, any threatened claim that Maile has breached, any of
the terms or conditions of any agreements, contracts or commitments to which it
is a party or by which it or its assets are is bound. The execution and
performance hereof will not violate any provisions of applicable law or any
agreement to which Maile is subject. Maile hereby represents that it is not a
party to any material contract or commitment other than appointment documents
with its transfer agent, and that it has disclosed to Simex all relationships
or dealings with related parties or affiliates.
(k) Maile common stock is currently approved for quotation on the NASD
Electronic Bulletin Board and there are no stop orders in effect with respect
thereto.
(1) All information regarding Maile which has been provided to Simex
in the Maile Due Diligence Statement dated August 15, 1997 or otherwise
disclosed to the public in connection with the transactions contemplated
herein, is true, complete and accurate in all material respects. Maile and
Mower specifically disclaim any responsibility regarding disclosures as to
Simex or its business.
11. CLOSING. The Closing of the transactions contemplated herein
shall take place on such date (the "Closing") as mutually determined by the
parties hereto when all conditions precedent have been met and all required
documents have been delivered, which Closing shall be
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no later than April 30, 1998, unless extended by mutual consent of all parties
hereto. The "Closing Date" of the transactions described herein (the
"Acquisition"), shall be that date on which all conditions set forth herein
have been met and the Maile Shares are issued in exchange for the Simex Common
Stock.
12. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SIMEX. All
obligations of Simex under this Agreement are subject to the fulfillment, prior
to or as of the Closing and/or the Closing Date, as indicated below, of each of
the following conditions:
(a) The representations and warranties by or on behalf of Mower and
Maile contained in this Agreement or in any certificate or document delivered
pursuant to the provisions hereof shall be true in all material respects at and
as of the Closing and Closing Date as though such representations and
warranties were made at and as of such time.
(b) Maile shall have performed and complied with all covenants,
agreements, and conditions set forth in, and shall have executed and delivered
all documents required by this Agreement to be performed or complied with or
executed and delivered by it prior to or at the Closing.
(c) On or before the Closing, the board of directors, and
shareholders representing a majority interest the outstanding common stock of
Maile, shall have approved in accordance with applicable state corporation law
the execution and delivery of this Agreement and the consummation of the
transactions contemplated herein.
(d) On or before the Closing Date, Maile shall have delivered to
Simex certified copies of resolutions of the board of directors and
shareholders of Maile approving and authorizing the execution, delivery and
performance of this Agreement and authorizing all of the necessary and proper
action to enable Maile to comply with the terms of this Agreement including the
election of Simex's nominees to the Board of Directors of Maile and all matters
outlined herein.
(e) The Acquisition shall be permitted by applicable law and Maile
shall have sufficient shares of its capital stock authorized to complete the
Acquisition.
(f) At Closing, the existing officers and directors of Maile shall
have resigned in writing from all positions as directors and officers of Maile
effective upon the election and appointment of the Simex nominees.
(g) At the Closing, all instruments and documents delivered to Simex
and Simex Stockholders pursuant to the provisions hereof shall be reasonably
satisfactory to legal counsel for Simex.
(h) The shares of restricted Maile capital stock to be issued to Simex
Stockholders and in the Maile Financing at Closing will be validly issued,
nonassessable and fully-paid under Nevada corporation law and will be issued in
compliance with all federal, state and applicable corporation and securities
laws.
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(i) Simex and Simex Stockholders shall have received the advice of
their tax advisor, if deemed necessary by them, as to all tax aspects of the
Acquisition.
(j) Simex shall have received all necessary and required approvals and
consents from required parties and its shareholders.
(k) Maile shall have $2,547,000 in good funds, at Closing, from the
Maile Financing, for delivery at the direction of Simex.
(1) At the Closing, Maile shall have delivered to Simex an opinion of
its counsel dated as of the Closing to the effect that:
(i) Maile is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation;
(ii) This Agreement has been duly authorized, executed and
delivered by Maile and is a valid and binding obligation of Maile
enforceable in accordance with its terms;
(iii) Maile through its board of directors and stockholders
has taken all corporate action necessary for performance under this
Agreement;
(iv) The documents executed and delivered by Maile to Simex
and Simex Stockholders hereunder are valid and binding in accordance
with their terms and vest in Simex Stockholders, as the case may be,
all right, title and interest in and to the Maile Shares to be issued
pursuant to the terms hereof, and the Maile Shares when issued will be
duly and validly issued, fully-paid and nonassessable;
(v) Maile has the corporate power to execute, deliver and
perform under this Agreement;
(vi) Legal counsel for Maile is not aware of any liabilities,
claims or lawsuits involving Maile;
13. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF MAILE. All
obligations of Maile under this Agreement are subject to the fulfillment, prior
to or at the Closing, of each of the following conditions:
(a) The representations and warranties by Simex and Simex
Stockholders contained in this Agreement or in any certificate or document
delivered pursuant to the provisions hereof shall be true in all material
respects at and as of the Closing as though such representations and warranties
were made at and as of such time.
(b) Simex shall have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by it prior to or at the Closing;
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(c) Simex shall deliver on behalf of the Simex Stockholders a letter
commonly known as an "Investment Utter," signed by each of said shareholders,
in substantially the form attached hereto as Exhibit "C", acknowledging that
the Maile Shares are being acquired for investment purposes.
(d) Simex shall deliver an opinion of its legal counsel to the effect
that:
(i) Simex is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation and is duly qualified to do business in any jurisdiction
where so required except where the failure to so qualify would have no
material adverse impact on Simex;
(ii) This Agreement has been duly authorized, executed and
delivered by Simex.
(iii) The documents executed and delivered by Simex and Simex
Stockholders to Maile hereunder are valid and binding in accordance
with their terms and vest in Maile all right, title and interest in
and to the Simex Common Stock, which stock is duly and validly
issued, fully-paid and nonassessable.
14. INDEMNIFICATION. For a period of one year from the Closing,
Maile and Mower agree to jointly and severally indemnify and hold harmless
Simex, and Simex agrees to indemnify and hold harmless Maile and Mower, at all
times after the date of this Agreement against and in respect of any liability,
damage or deficiency, all actions, suits, proceedings, demands, assessments,
judgments, costs and expenses including attorney's fees incident to any of the
foregoing, resulting from any material misrepresentations made by an
indemnifying party to an indemnified party, an indemnifying party's breach of
covenant or warranty or an indemnifying party's nonfulfillment of any agreement
hereunder, or from any material misrepresentation in or omission from any
certificate furnished or to be furnished hereunder.
15. NATURE AND SURVIVAL OF REPRESENTATIONS. All representations,
warranties and covenants made by any party in this Agreement shall survive the
Closing and the consummation of the transactions contemplated hereby for one
year from the Closing. All of the parties hereto are executing and carrying out
the provisions of this Agreement in reliance solely on the representations,
warranties and covenants and agreements contained in this Agreement and not
upon any investigation upon which it might have made or any representation,
warranty, agreement, promise or information, written or oral, made by the other
party or any other person other than as specifically set forth herein.
16. DOCUMENTS AT CLOSING. At the Closing, the following
documents shall be delivered:
(a) Simex will deliver, or will cause to be delivered, to Maile the
following:
(i) a certificate executed by the President and Secretary of
Simex to the effect that all representations and warranties made by
Simex under this Agreement are true and correct as of the Closing, the
same as though originally given to Maile on said date;
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(ii) a certificate from the jurisdiction of incorporation of
Simex dated at or about the Closing to the effect that Simex is in
good standing under the laws of said jurisdiction;
(iii) Investment Letters in the form attached hereto as
Exhibit "C" executed by each Simex Stockholder;
(iv) such other instruments, documents and certificates, if
any, as are required to be delivered pursuant to the provisions of
this Agreement;
(v) certified copies of resolutions adopted by the
shareholders and directors of Simex authorizing this transaction; and
(vi) all other items, the delivery of which is a condition
precedent to the obligations of Maile as set forth herein.
(vii) the legal opinion required by Section 13(d) hereof.
(b) Maile will deliver or cause to be delivered to Simex:
(i) stock certificates representing the Maile Shares
(including the Escrow Shares) to be issued as a part of the stock
exchange as described herein;
(ii) a certificate of the President of Maile, to the effect
that all representations and warranties of Maile made under this
Agreement are true and correct as of the Closing, the same as though
originally given to Simex on said date;
(iii) certified copies of resolutions adopted by Maile's
board of directors and Maile's Stockholders authorizing the
Acquisition and all related matters described herein;
(iv) certificate from the jurisdiction of incorporation of
Maile dated at or about the Closing Date that Maile is in good
standing under the laws of said state;
(v) opinion of Maile's counsel as described in Section 12(k)
above;
(vi) such other instruments and documents as are required to
be delivered pursuant to the provisions of this Agreement;
(vii) resignation of all of the existing officers and
directors of Maile;
(viii) all corporate and financial records of Maile; and
(ix) all other items, the delivery of which is a condition
precedent to the obligations of Simex, as set forth in Section 13
hereof.
17. FINDER'S FEES. Maile, represents and warrants to Simex, and Simex
represents and warrants to Maile that neither of them, or any party acting on
their behalf, has incurred any liabilities, either express or implied, to any
"broker" of "finder" or similar person in connection
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with this Agreement or any of the transactions contemplated hereby. In this
regard, Maile, on the one hand, and Simex on the other hand, will indemnify and
hold the other harmless from any claim, loss, cost or expense whatsoever
(including reasonable fees and disbursements of counsel) from or relating to
any such express or implied liability.
18. MISCELLANEOUS.
(a) Further Assurances. At any time, and from time to time, after the
Closing Date, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the
intent and purposes of this Agreement.
(b) Waiver. Any failure on the part of any party hereto to comply
with any of its obligations, agreements or conditions hereunder may be waived
in writing by the party to whom such compliance is owed.
(c) Termination. All obligations hereunder may be terminated at the
discretion of either party's board of directors if (i) the closing conditions
specified in Sections 12 and 13 are not met by April 30, 1998, unless extended,
or (ii) any of the representations and warranties made herein have been
materially breached.
(d) Amendment. This Agreement may be amended only in writing as
agreed to by all parties hereto.
(e) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given if delivered in person or
sent by prepaid first class registered or certified mail, return receipt
requested.
(f) Headings. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(h) Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) Entire Agreement. This Agreement and the attached Exhibits
constitute the entire agreement of the parties covering everything agreed upon
or understood in the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof.
(j) Time. Time is of the essence.
15
(k) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
(1) Responsibility and Costs. All fees, expenses and out-of-pocket
costs and expenses, including, without limitation, fees and disbursements of
counsel, advisors and accountants, incurred by the parties hereto shall be
borne solely and entirely by the party that has incurred such costs and
expenses.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
MAILE INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Xxxxx Xxxxx, President and Secretary
/s/ Xxxxx Xxxxx
--------------------------------------------
Xxxxx Xxxxx, individually
SIMEX A.S.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxx X. Xxxxxxx
------------------------ -----------------------------------------
Secretary President
SHAREHOLDERS OF SIMEX A.S.
/s/ Xxxxx Xxxxx
-----------------------------------------
/s/ Ogstein Frafjord
-----------------------------------------
/s/ Xxxx X. Xxxxxxx
-----------------------------------------
16
-----------------------------------------
17
EXHIBIT "A"
To Agreement and Plan of Reorganization
List of Simex Stockholders
--------------------------
Simex Maile Shares Maile Shares to be
Name Shares Issued in Escrow Issued as Closing
---- ------ ---------------- -----------------
Xxxxx Xxxxx 140.4 1,053,000 4,212,000
0000 Xxxxxxx Xxxxxx Xxxx
Xxxx. X-0, Xxxxx 000
Xxxxxxxxxx, XX 00000
Kjell 1. Jagelid 20.0 150,000 600,000
0000 Xxxxxxx Xxxxxx Xxxx
Xxxx. X-0, Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx 19.8 148,500 594,000
0000 Xxxxxxx Xxxxxx Xxxx
Xxxx. X-0, Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxx 19.8 148,500 594,000
0000 Xxxxxxx Xxxxxx Xxxx
Xxxx. X-0, Xxxxx 000
Xxxxxxxxxx, XX 00000
------ --------- ---------
200 1,500,000 6,000,000
18
EXHIBIT "B"
TO AGREEMENT AND PLAN OF REORGANIZATION
Form of Amendment to Articles of Incorporation
19
CERTIFICATE OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
MAILE INTERNATIONAL, INC.
Pursuant to the applicable provisions of the Nevada Business
Corporations Act, Maile International, Inc. (the "Corporation") adopts the
following Articles of Amendment to its Articles of Incorporation:
FIRST: The present name of the Corporation is Maile International,
Inc.
SECOND: The following amendments to its Articles of Incorporation were
adopted by the board of directors and by majority consent of shareholders of
the Corporation in the manner prescribed by applicable law.
The Article entitled ARTICLE I - NAME, is amended to read as follows:
ARTICLE I - NAME
The name of the corporation shall be: Simex/NK Technologies, Inc.
The Article entitled ARTICLE IV - AUTHORIZED SHARES, is amended to
read as follows:
ARTICLE IV - AUTHORIZED SHARES
The Corporation is authorized to issue (a) 5,000,000 shares of
preferred stock having a par value of $0.001 per share (hereinafter referred to
as "Preferred Stock"), (b) 50,000,000 shares of common stock having a par value
$0.001 per share (hereinafter referred to as "Common Stock") and (c) 1,130,000
shares of Series A Cumulative Preferred Stock (hereinafter referred to as
"Series A Preferred Stock"). Shares of any class of stock may be issued,
without shareholder action.
A. General Powers
The board of directors of this Corporation is hereby expressly granted
authority as to the Preferred Stock and Common Stock, without shareholder
action, and within the limits set forth in the Nevada Revised Statutes, to:
1. Designate in whole or in part, the powers, preferences,
limitations, and relative rights, of any class of shares before the issuance of
any shares of that class;
20
2. Create one or more series within a class of shares, fix the number
of shares of each such series, and designate, in whole or part, the powers,
preferences, limitations, and relative rights of the series, all before the
issuance of any shades of that series;
3. Alter or revoke the powers, preferences, limitations and relative
rights granted to or imposed upon any wholly unissued class of shares or any
wholly unissued series of any class of shares; or
4. Increase or decrease the number of shares constituting any series,
the number of shares of which was originally fixed by the board of directors,
either before or after the issuance of shares of the series; provided that, the
number may not be decreased below the number of shares of the series then
outstanding, or increased above the total number of authorized shares of the
applicable class of shares available for designation as a part of the series.
The allocation between the classes, or among the series of each class,
of unlimited voting rights and the right to receive the net assets of the
Corporation upon dissolution, shall be as designated by the board of directors.
All rights accruing to the outstanding shares of the Corporation not expressly
provided for to the contrary herein or in the Corporation's bylaws or in any
amendment hereto or thereto shall be vested in the Common Stock. Accordingly,
unless and until otherwise designated by the board of directors of the
Corporation, and subject to any superior rights as so designated, the Common
Stock shall have unlimited voting rights and be entitled to receive the net
assets of the Corporation upon dissolution.
B. SERIES A CONVERTIBLE CUMULATIVE PREFERRED STOCK
1. DESIGNATION AND AMOUNT. This series of Preferred Stock shall
be designated "Series A Convertible Cumulative Preferred
Stock" and the authorized number of shares constituting such
series shall be 1,130,000. The par value of the Series A
Preferred Stock shall be $0.001 per share.
2. DIVIDENDS
(a) The holders of shares of Series A Preferred Stock shall
be entitled to receive, out of any assets at the time legally
available therefor and when, as and if declared by the Board of
Directors, cumulative dividends at the rate of eight percent (8%) per
share per annum based on a liquidation value of $1.90 per share, and
no more, payable to holders of record in cash, accruing, without
interest thereon, from the initial date of issuance, and first payable
in arrears, as soon as practicable after December 31, 1998, for the
period ending December 31, 1998, and thereafter for the period ending
December 31 st of each year that any such shares shall be outstanding.
Such dividends on Series A Preferred Stock are prior and in preference
to any declaration or payment of any distribution (as defined below)
on any other outstanding shares of preferred stock or the common stock
of this Corporation. Such dividends shall accrue on each share of
Series A Preferred Stock from day to day from the date of initial
issuance thereof whether or not earned or declared so that if such
dividends with respect to any previous dividend period at the rate
provided for herein have not been paid on, or declared and set apart
for, all shares of Series A
21
Preferred Stock at the time outstanding, the deficiency shall (without
interest thereon) be fully paid on, or declared and set apart for,
such shares before any distribution shall be paid on, or declared and
set apart for any other outstanding shares of preferred stock or
common stock.
(b) For purposes hereof, unless the context otherwise requires,
"distribution" shall mean the transfer of cash or property without
consideration, whether by way of dividend or otherwise, payable upon shares of
capital stock of the Corporation other than in common stock, or the purchase or
redemption of shares of this Corporation (other than conversions set forth in
Paragraph 2 below or repurchases of common stock held by employees or
consultants of this Corporation upon termination of their employment or
services pursuant to agreements providing for such repurchase) for cash or
property, including any such transfer, purchase or redemption by a subsidiary
of this Corporation.
3. CONVERSION
(a) At any time after the three (3) month anniversary of the initial
issuance of the Series A Preferred Stock, the Corporation may, at the option of
the Board of Directors, convert all or part of the outstanding shares of the
Series A Preferred Stock at the conversion rate set forth in subparagraph (c)
below, provided that the Corporation shall give written notice by mail, postage
prepaid, to the holders of such stock to be converted at least ten (10) days
prior to the date specified for conversion (the "Conversion Date"). Such notice
shall be addressed to each such shareholder at the address of such holder
appearing on the books of the Corporation or given by such holder to the
Corporation for the purpose of notice, or if no such address appears or is so
given, at the place where the principal office of the Corporation is located.
Such notice shall state the Conversion Date, the Conversion Rate (as
hereinafter defined), the number of shares of Series A Preferred Stock of such
holders, to be converted and shall call upon such holder to surrender to the
Corporation on the Conversion Date at the place designated in the notice such
holder's converted stock. On or after the Conversion Date, each holder of
shares of Series A Preferred Stock called for conversion shall surrender the
certificate evidencing such shares to the Corporation at the place designated
in such notice and shall thereupon be entitled to receive shares of the
Corporation's common stock at the Conversion Rate. If less than all of the
outstanding shares of Series A Preferred Stock, treated as one class, are to be
converted, then the Corporation shall convert a pro rata portion from each
holder of such stock according to the respective number of shares of such stock
held by such holder.
(b) At any time, on or after the three (3) month anniversary of the
initial issuance of the Series A Preferred Stock, any holder of outstanding
shares of Series A Preferred Stock may, at its option, convert all or part of
the outstanding shares of the Series A Preferred Stock held by it at the
Conversion Rate set forth in subparagraph (c) below, provided that said holder
shall give written notice by mail, postage prepaid, to the Corporation of such
stock to be converted at least ten (10) days prior to the Conversion Date. Such
notice shall state the Conversion Date, the number of shares of Series A
Preferred Stock of such holders to be converted and the agreement of such
holder(s) to surrender to the Corporation on the Conversion Date at the
Corporation's principal place of business or such other place designated by the
Corporation such holder's
22
conversion stock. On or after the Conversion Date, each holder of shares of
Series A Preferred Stock requesting conversion shall surrender the certificate
evidencing such shares to the Corporation at the place designated by the
Corporation and shall thereupon be entitled to received shares of common stock
at the Conversion Rate.
(c) The Series A Preferred Stock shall be converted at the rate of one
share of the Corporation's common stock for each share of Series A Preferred
Stock. At the time of conversion all accumulated and unpaid dividends to the
Conversion Date shall be paid in cash.
(d) From and after the Conversion Date the holders of the shares of
the Series A Preferred Stock called for conversion shall cease to have any
rights as Series A Preferred stockholders of the Corporation.
(e) There shall be no conversion of any shares of Preferred Stock of
the Corporation where such action would be in violation of applicable law.
(f) The shares of the Corporation's common stock issued in the
conversion of Series A Preferred stock shall be restricted stock issued
pursuant to an exemption from registration under the Securities Act of 1933.
The recipient of said common stock shall make such representations as are
required by the Corporation so as to qualify for said exemptions from
registration.
(g) The Corporation hereby undertakes, as soon as practicable after
the Conversion Date, to use its best and most diligent efforts to prepare and
file a registration statement under the Securities Act of 1933 (the "Act") to
register for resale said shares of common stock and to pursue the same with
diligence to effectiveness. All costs and expenses associated with the
preparation, filing and completion of such registration statement (other than
brokers' commissions) shall be borne by the Company. The Company will also use
its best efforts to qualify the shares for sale in various state as required by
applicable law.
(h) The number of shares of common stock issuable upon conversion of
the Series A Preferred Stock shall be adjusted to reflect an equivalent number
of shares, as required, to reflect any stock split or similar recapitalization
of the Corporation's outstanding common stock.
(i) The Corporation shall reserve and shall have at all times
available the shares of common stock issuable upon conversion of the Series A
Preferred Stock.
4. PREFERENCES ON LIQUIDATION.
(a) Subject to Paragraph 8 below, in the event of any voluntary or
involuntary liquidation, dissolution, or winding up of the Corporation, the
holders of shares of the Series A Preferred Stock then outstanding, shall
be entitled to be paid, out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or earnings,
before any payment shall be made in respect of the Corporation's common stock,
an amount equal to $1.90 per share, plus all accrued and unpaid dividends
thereon to the date fixed for distribution. After setting apart or paying in
full the preferential amounts due the
23
holders of the Series A Preferred Stock, the remaining assets of the
Corporation available for distribution to stockholders, if any, shall be
distributed exclusively to the holders of common stock, each such issued and
outstanding share of common stock entitling the holder thereof to receive an
equal proportion of said remaining assets. If upon liquidation, dissolution, or
winding up of the Corporation, the assets of the Corporation available for
distribution to its shareholders shall be insufficient to pay the holders of the
Series A Preferred Stock the full amounts to which they respectively shall be
entitled, the holders of such stock shall share ratably in any distribution of
assets according to the respective amounts which would be payable in respect of
the shares held by them upon such distribution if all amounts payable on or with
respect to said shares were paid in full.
(b) In the event of any voluntary or involuntary liquidation,
dissolution, or winding up of the Corporation, the Corporation shall, within ten
(10) days after the date the Board of Directors approves such action, or within
twenty (20) days prior to any shareholder's meeting called to approve such
action, or within twenty (20) days after the commencement of any involuntary
proceeding, whichever is earlier, give each holder of shares of Series A
Preferred Stock initial written notice of the proposed action. Such initial
written notice shall describe the material terms and conditions of such proposed
action, including a description of the stock, cash, and property to be received
by the holders of shares of Series A Preferred Stock upon consummation of the
proposed action and the date of delivery thereof. If any material change in the
facts set forth in the initial notice shall occur, the Corporation shall
promptly give written notice to each holder of shares of Series A Preferred
Stock of such material change. The Corporation shall not consummate any
voluntary or involuntary liquidation, dissolution, or winding up of the
Corporation before the expiration of twenty (20) days after the mailing of the
initial notice or ten (10) days after the mailing of any subsequent written
notice, whichever is later; provided that any such twenty-day or ten-day period
may be shortened upon the written consent of the holders of a majority of the
outstanding shares of Series A Preferred Stock.
(c) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation which will involve the distribution
of assets other than cash, the Corporation shall promptly engage competent
independent appraisers to determine the value of the assets to be distributed to
the holders of shares of Series A Preferred Stock and the holders of shares of
common stock (it being understood that with respect to the valuation of
securities, the Corporation shall engage such appraiser as shall be approved by
the holders of a majority of shares of the Corporation's outstanding Series A
Preferred Stock). The Corporation shall, upon receipt of such appraiser s
valuation, give prompt written notice to each holder of shares of Series A
Preferred Stock of the appraiser's valuation.
5. VOTING RIGHTS
The holders of Series A Preferred Stock shall be entitled to one vote
per share of Series A Preferred Stock outstanding as to all matters upon which
shareholders of common stock are entitled to vote.
24
6. PREEMPTIVE RIGHTS
The Series A Preferred Stock is not entitled to any preemptive or
subscription rights in respect of any securities of the Corporation.
7. STATUS
In case any outstanding shares of Series A Preferred Stock shall be
converted, the shares so converted shall be deemed to be permanently canceled
and shall not resume the status of authorized but unissued shares of Series A
Preferred Stock.
8. RANKING: CHANGES AFFECTING SERIES A
(a) The Series A Preferred Stock shall, with respect to
dividend rights and rights on liquidation, winding up and dissolution,
rank senior to any of the Corporation's common stock and any other
class or series of stock of the Corporation. The approval of the
holders of a majority of the issued and outstanding shares of Series A
Preferred Stock shall be required for the authorization or issuance of
any shares of any class or series of stock of the Company, which is
proposed to rank senior or on a parity with the Series A Preferred
Stock.
(b) So long as any shares of Series A Preferred Stock are
outstanding, the Corporation shall not (i) alter or change any of the
powers, preferences, privileges, or rights of the Series A Preferred
Stock; or (ii) amend the provisions of this paragraph (8); or (iii)
create any new class or series of shares having preferences prior to
or being on a parity with the Series A Preferred Stock as to dividends
or liquidations; in each case, without first obtaining the approval by
vote or written consent, in the manner provided by law, of the holders
of at least a majority of the total number of outstanding shares of
the Series A Preferred Stock, as to changes affecting the Series A
Preferred Stock.
THIRD: The Corporation has effectuated, effective with the commencement of
business on Wednesday, April 29, 1998, a 1 for 2.21 reverse stock split as to
its shares of common stock outstanding as of the opening of business on April
28, 1998, which decreases the outstanding shares as of that date from 5,559,291
shares to 2,512,857 shares. The reverse split shall not change the authorized
capital stock of the Corporation.
FOURTH: The number of shares of the Corporation outstanding and entitled to
vote at the time of the adoption of said amendment was 5,559,291.
FIFTH: The number of shares voted for such amendments was 3,000,000 (54%) and
no shares were voted against such amendment.
25
DATED this _____ day of April, 1998.
MAILE INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------------
Xxxxx Xxxxx, President/Secretary
26
VERIFICATION
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
The undersigned being first duly sworn, deposes and states: that the
undersigned is the President of Maile International, Inc., that the undersigned
has read the Certificate of Amendment and knows the contents thereof and that
the same contains a truthful statement of the Amendment duly adopted by the
board of directors and stockholders of the Corporation.
/s/ Xxxxx Xxxxx
----------------------------------
Xxxxx Xxxxx, President
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
Before me the undersigned Notary Public in and for the said County and
State, personally appeared the President and Secretary of Maile International,
Inc. a Nevada corporation, and signed the foregoing Articles of Amendment as
their own free and voluntary acts and deeds pursuant to a corporate resolution
for the uses and purposes set forth.
IN WITNESS WHEREOF, I have set my hand and seal this _____ day of April,
1998.
----------------------------------
NOTARY PUBLIC
Notary Seal:
27
EXHIBIT "C"
TO AGREEMENT AND PLAN OF REORGANIZATION
Form of Investment Letter
28
INVESTMENT LETTER
TO THE BOARD OF DIRECTORS OF MAILE INTERNATIONAL, INC. ("CORPORATION")
The undersigned hereby represents to the Corporation, that (1) the
shares of the Corporation's common stock (the "Securities") which are being
acquired by the undersigned are being acquired for his own account and for
investment and not with a view to the public resale or distribution thereof;
(2) the undersigned will not sell, transfer or otherwise dispose of the
securities except in compliance with the Securities Act of 1933, as amended
(the "Act"); and (3) he is aware that the Securities are "restricted
securities" as that term is defined in Rule 144 or the General Rules and
Regulations under the Act.
The undersigned hereby agrees to not transfer the Securities or any
interest therein outside of the United States without the express written
permission of the Corporation.
The undersigned acknowledges that he has been afforded access to all
disclosure documents and information regarding the Corporation.
The undersigned further acknowledges that he has had an opportunity to
ask questions of and receive answers from duly designated representatives of
the Corporation concerning the terms and conditions pursuant to which the
Securities are being purchased. The undersigned acknowledges that he has been
afforded an opportunity to examine such documents and other information which
he has requested for the purpose of verifying the information set forth in the
documents referred to above.
The undersigned acknowledges and understands that the Securities are
unregistered and must be held indefinitely unless they are subsequently
registered under the Act or an exemption from such registration is available.
The undersigned further acknowledges that he is fully aware of the
applicable limitations on the resale of the Securities. These restrictions for
the most part are set forth in Rule 144. The Rule permits sales of "restricted
securities" upon compliance with the requirements of such Rule. If the Rule is
available to the undersigned, the undersigned may make only routine sales of
securities, in limited amounts, in accordance with the terms and conditions of
that Rule.
The Company is the only person which may register its Securities under
the Act and it currently is not contemplating registering any of its
Securities. Furthermore, the Company has not made any representations,
warranties or covenants to the undersigned regarding registration of the
Securities or compliance with any exemption under the Act.
By reason of my knowledge and experience in financial and business
matters in general, and investments in particular, I am capable of evaluating
the merits and risks of an investment by me in the Securities.
29
I am capable of bearing the economic risks of an investment in the
Securities. I fully understand the speculative nature of the Securities.
My present financial condition is such that I am under no present or
contemplated future need to dispose of any portion of the Securities to satisfy
any existing or contemplated undertaking, need, or indebtedness.
Any and all certificates representing the Securities, and any and all
securities issued in replacement thereof or in exchange therefor, shall bear
the following legend, which the undersigned has read and understands:
The shares represented by this Certificate have not
been registered under the Securities Act of 1933 (the "Act")
and are "restricted securities" as that term is defined in Rule
144 under the Act. The shares may not be offered for sale, sold
or otherwise transferred except pursuant to an effective
registration statement under the Act or pursuant to an
exemption from registration under the Act, the availability of
which is to be established to the satisfaction of the Company.
The undersigned further agrees that the Corporation shall have the
right to issue stop-transfer instructions to its transfer agent and
acknowledges that the Corporation has informed the undersigned of its intention
to issue such instructions.
Very truly yours,
/s/ Xxxxx Xxxxx
-------------------------------------------
Date: ___________________________, 199_____
30
INVESTMENT LETTER
TO THE BOARD OF DIRECTORS OF MAILE INTERNATIONAL, INC. ("CORPORATION")
The undersigned hereby represents to the Corporation, that (1) the
shares of the Corporation's common stock (the "Securities") which are being
acquired by the undersigned are being acquired for his own account and for
investment and not with a view to the public resale or distribution thereof;
(2) the undersigned will not sell, transfer or otherwise dispose of the
securities except in compliance with the Securities Act of 1933, as amended
(the "Act"); and (3) he is aware that the Securities are "restricted
securities" as that term is defined in Rule 144 or the General Rules and
Regulations under the Act.
The undersigned hereby agrees to not transfer the Securities or any
interest therein outside of the United States without the express written
permission of the Corporation.
The undersigned acknowledges that he has been afforded access to all
disclosure documents and information regarding the Corporation.
The undersigned further acknowledges that he has had an opportunity to
ask questions of and receive answers from duly designated representatives of
the Corporation concerning the terms and conditions pursuant to which the
Securities are being purchased. The undersigned acknowledges that he has been
afforded an opportunity to examine such documents and other information which
he has requested for the purpose of verifying the information set forth in the
documents referred to above.
The undersigned acknowledges and understands that the Securities are
unregistered and must be held indefinitely unless they are subsequently
registered under the Act or an exemption from such registration is available.
The undersigned further acknowledges that he is fully aware of the
applicable limitations on the resale of the Securities. These restrictions for
the most part are set forth in Rule 144. The Rule permits sales of "restricted
securities" upon compliance with the requirements of such Rule. If the Rule is
available to the undersigned, the undersigned may make only routine sales of
securities, in limited amounts, in accordance with the terms and conditions of
that Rule.
The Company is the only person which may register its Securities under
the Act and it currently is not contemplating registering any of its
Securities. Furthermore, the Company has not made any representations,
warranties or covenants to the undersigned regarding registration of the
Securities or compliance with any exemption under the Act.
By reason of my knowledge and experience in financial and business
matters in general, and investments in particular, I am capable of evaluating
the merits and risks of an investment by me in the Securities.
31
I am capable of bearing the economic risks of an investment in the
Securities. I fully understand the speculative nature of the Securities.
My present financial condition is such that I am under no present or
contemplated future need to dispose of any portion of the Securities to satisfy
any existing or contemplated undertaking, need, or indebtedness.
Any and all certificates representing the Securities, and any and all
securities issued in replacement thereof or in exchange therefor, shall bear
the following legend, which the undersigned has read and understands:
The shares represented by this Certificate have not
been registered under the Securities Act of 1933 (the "Act")
and are "restricted securities" as that term is defined in Rule
144 under the Act. The shares may not be offered for sale, sold
or otherwise transferred except pursuant to an effective
registration statement under the Act or pursuant to an
exemption from registration under the Act, the availability of
which is to be established to the satisfaction of the Company.
The undersigned further agrees that the Corporation shall have the
right to issue stop-transfer instructions to its transfer agent and
acknowledges that the Corporation has informed the undersigned of its intention
to issue such instructions.
Very truly yours,
/s/ Xxxxxxx Xxxxxxxx
----------------------------------------------
Xxxxxxx Xxxxxxxx
Date: April ______, 1998
32
INVESTMENT LETTER
TO THE BOARD OF DIRECTORS OF MAILE INTERNATIONAL, INC. ("CORPORATION")
The undersigned hereby represents to the Corporation, that (1) the
shares of the Corporation's common stock (the "Securities") which are being
acquired by the undersigned are being acquired for his own account and for
investment and not with a view to the public resale or distribution thereof;
(2) the undersigned will not sell, transfer or otherwise dispose of the
securities except in compliance with the Securities Act of 1933, as amended
(the "Act"); and (3) he is aware that the Securities are "restricted
securities" as that term is defined in Rule 144 or the General Rules and
Regulations under the Act.
The undersigned hereby agrees to not transfer the Securities or any
interest therein outside of the United States without the express written
permission of the Corporation.
The undersigned acknowledges that he has been afforded access to all
disclosure documents and information regarding the Corporation.
The undersigned further acknowledges that he has had an opportunity to
ask questions of and receive answers from duly designated representatives of
the Corporation concerning the terms and conditions pursuant to which the
Securities are being purchased. The undersigned acknowledges that he has been
afforded an opportunity to examine such documents and other information which
he has requested for the purpose of verifying the information set forth in the
documents referred to above.
The undersigned acknowledges and understands that the Securities are
unregistered and must be held indefinitely unless they are subsequently
registered under the Act or an exemption from such registration is available.
The undersigned further acknowledges that he is fully aware of the
applicable limitations on the resale of the Securities. These restrictions for
the most part are set forth in Rule 144. The Rule permits sales of "restricted
securities" upon compliance with the requirements of such Rule. If the Rule is
available to the undersigned, the undersigned may make only routine sales of
securities, in limited amounts, in accordance with the terms and conditions of
that Rule.
The Company is the only person which may register its Securities under
the Act and it currently is not contemplating registering any of its
Securities. Furthermore, the Company has not made any representations,
warranties or covenants to the undersigned regarding registration of the
Securities or compliance with any exemption under the Act.
By reason of my knowledge and experience in financial and business
matters in general, and investments in particular, I am capable of evaluating
the merits and risks of an investment by me in the Securities.
33
I am capable of bearing the economic risks of an investment in the
Securities. I fully understand the speculative nature of the Securities.
My present financial condition is such that I am under no present or
contemplated future need to dispose of any portion of the Securities to satisfy
any existing or contemplated undertaking, need, or indebtedness.
Any and all certificates representing the Securities, and any and all
securities issued in replacement thereof or in exchange therefor, shall bear
the following legend, which the undersigned has read and understands:
The shares represented by this Certificate have
not been registered under the Securities Act of 1933 (the
"Act") and are "restricted securities" as that term is defined
in Rule 144 under the Act. The shares may not be offered for
sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Act or pursuant to
an exemption from registration under the Act, the availability
of which is to be established to the satisfaction of the
Company.
The undersigned further agrees that the Corporation shall have the
right to issue stop-transfer instructions to its transfer agent and
acknowledges that the Corporation has informed the undersigned of its intention
to issue such instructions.
Very truly yours,
/s/ Xxxxx Xxxxx
-----------------------------------------
Xxxxx Xxxxx
Date: April 22, 1998
34
INVESTMENT LETTER
TO THE BOARD OF DIRECTORS OF MAILE INTERNATIONAL, INC. ("CORPORATION")
The undersigned hereby represents to the Corporation, that (1) the
shares of the Corporation's common stock (the "Securities") which are being
acquired by the undersigned are being acquired for his own account and for
investment and not with a view to the public resale or distribution thereof;
(2) the undersigned will not sell, transfer or otherwise dispose of the
securities except in compliance with the Securities Act of 1933, as amended
(the "Act"); and (3) he is aware that the Securities are "restricted
securities" as that term is defined in Rule 144 or the General Rules and
Regulations under the Act.
The undersigned hereby agrees to not transfer the Securities or any
interest therein outside of the United States without the express written
permission of the Corporation.
The undersigned acknowledges that he has been afforded access to all
disclosure documents and information regarding the Corporation.
The undersigned further acknowledges that he has had an opportunity to
ask questions of and receive answers from duly designated representatives of
the Corporation concerning the terms and conditions pursuant to which the
Securities are being purchased. The undersigned acknowledges that he has been
afforded an opportunity to examine such documents and other information which
he has requested for the purpose of verifying the information set forth in the
documents referred to above.
The undersigned acknowledges and understands that the Securities are
unregistered and must be held indefinitely unless they are subsequently
registered under the Act or an exemption from such registration is available.
The undersigned further acknowledges that he is fully aware of the
applicable limitations on the resale of the Securities. These restrictions for
the most part are set forth in Rule 144. The Rule permits sales of "restricted
securities" upon compliance with the requirements of such Rule. If the Rule is
available to the undersigned, the undersigned may make only routine sales of
securities, in limited amounts, in accordance with the terms and conditions of
that Rule.
The Company is the only person which may register its Securities under
the Act and it currently is not contemplating registering any of its
Securities. Furthermore, the Company has not made any representations,
warranties or covenants to the undersigned regarding registration of the
Securities or compliance with any exemption under the Act.
By reason of my knowledge and experience in financial and business
matters in general, and investments in particular, I am capable of evaluating
the merits and risks of an investment by me in the Securities.
35
I am capable of bearing the economic risks of an investment in the
Securities. I fully understand the speculative nature of the Securities.
My present financial condition is such that I am under no present or
contemplated future need to dispose of any portion of the Securities to satisfy
any existing or contemplated undertaking, need, or indebtedness.
Any and all certificates representing the Securities, and any and all
securities issued in replacement thereof or in exchange therefor, shall bear
the following legend, which the undersigned has read and understands:
The shares represented by this Certificate have
not been registered under the Securities Act of 1933 (the
"Act") and are "restricted securities" as that term is defined
in Rule 144 under the Act. The shares may not be offered for
sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Act or pursuant to
an exemption from registration under the Act, the availability
of which is to be established to the satisfaction of the
Company.
The undersigned further agrees that the Corporation shall have the
right to issue stop-transfer instructions to its transfer agent and
acknowledges that the Corporation has informed the undersigned of its intention
to issue such instructions.
Very truly yours,
/s/ Xxxx X. Xxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxx
Date: April 22, 1998
36
INVESTMENT LETTER
TO THE BOARD OF DIRECTORS OF MAILE INTERNATIONAL, INC. ("CORPORATION")
The undersigned hereby represents to the Corporation, that (1) the
shares of the Corporation's common stock (the "Securities") which are being
acquired by the undersigned are being acquired for his own account and for
investment and not with a view to the public resale or distribution thereof;
(2) the undersigned will not sell, transfer or otherwise dispose of the
securities except in compliance with the Securities Act of 1933, as amended
(the "Act"); and (3) he is aware that the Securities are "restricted
securities" as that term is defined in Rule 144 or the General Rules and
Regulations under the Act.
The undersigned hereby agrees to not transfer the Securities or any
interest therein outside of the United States without the express written
permission of the Corporation.
The undersigned acknowledges that he has been afforded access to all
disclosure documents and information regarding the Corporation.
The undersigned further acknowledges that he has had an opportunity to
ask questions of and receive answers from duly designated representatives of
the Corporation concerning the terms and conditions pursuant to which the
Securities are being purchased. The undersigned acknowledges that he has been
afforded an opportunity to examine such documents and other information which
he has requested for the purpose of verifying the information set forth in the
documents referred to above.
The undersigned acknowledges and understands that the Securities are
unregistered and must be held indefinitely unless they are subsequently
registered under the Act or an exemption from such registration is available.
The undersigned further acknowledges that he is fully aware of the
applicable limitations on the resale of the Securities. These restrictions for
the most part are set forth in Rule 144. The Rule permits sales of "restricted
securities" upon compliance with the requirements of such Rule. If the Rule is
available to the undersigned, the undersigned may make only routine sales of
securities, in limited amounts, in accordance with the terms and conditions of
that Rule.
The Company is the only person which may register its Securities under
the Act and it currently is not contemplating registering any of its
Securities. Furthermore, the Company has not made any representations,
warranties or covenants to the undersigned regarding registration of the
Securities or compliance with any exemption under the Act.
By reason of my knowledge and experience in financial and business
matters in general, and investments in particular, I am capable of evaluating
the merits and risks of an investment by me in the Securities.
37
I am capable of bearing the economic risks of an investment in the
Securities. I fully understand the speculative nature of the Securities.
My present financial condition is such that I am under no present or
contemplated future need to dispose of any portion of the Securities to satisfy
any existing or contemplated undertaking, need, or indebtedness.
Any and all certificates representing the Securities, and any and all
securities issued in replacement thereof or in exchange therefor, shall bear
the following legend, which the undersigned has read and understands:
The shares represented by this Certificate have
not been registered under the Securities Act of 1933 (the
"Act") and are "restricted securities" as that term is defined
in Rule 144 under the Act. The shares may not be offered for
sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Act or pursuant to
an exemption from registration under the Act, the availability
of which is to be established to the satisfaction of the
Company.
The undersigned further agrees that the Corporation shall have the
right to issue stop-transfer instructions to its transfer agent and
acknowledges that the Corporation has informed the undersigned of its intention
to issue such instructions.
Very truly yours,
/s/ Xxxxx X. Jaglid
-----------------------------------------
Xxxxx X. Jagelid
Date: April 27, 1998
