EXHIBIT 10.20
MASTER AGREEMENT
THIS MASTER AGREEMENT ("Agreement") is made and entered into this 11th day
of November 1998, by and among:
1. Modus Media International, Inc. ("MMI"), a corporation existing under the
laws of Delaware with its principal place of business at 000 Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00000, Xxxxxx Xxxxxx of America;
2. The Korean management team (hereinafter individually, "Partner" and
collectively "Partners") of Modus Media International Korea, Ltd. ("MMIK")
composed of XxxXx Xxxx, XxxxxXxx Xxx and XxxxxXxx Xxxx; and
3. MMIK, a corporation existing under the laws of the Republic of Korea which
has its principal place of business at 750-8 Komai-ri, Key-heung-ub, Yongin-si,
Kyungki-do, 449-900 Korea.
WHEREAS, MMI is the owner of all of the issued and outstanding shares of
MMIK;
WHEREAS, MMI wishes to restructure its operations in Korea whereby MMI
will dissolve and liquidate MMIK and otherwise end the corporate existence of
MMIK;
WHEREAS, the Partners wish to take over certain operations and employees
of MMIK and for this purpose will incorporate and form Modus Media Korea Ltd.
("NEWCO"), a joint stock company, under the laws of the Republic of Korea to
acquire such operations and employees of MMIK;
WHEREAS, to effectuate MMI's desire to sell, assign,
transfer to the Partners and the Partners' desire to buy, assume, and receive
(through NEWCO) from MMI certain assets and operations of MMI, various actions
need to be taken by the parties and numerous agreements between the parties will
need to be entered into; and
WHEREAS, it is the intent of the parties to clarify the order of actions
to be taken and the procedures to be used to sell, assign, and transfer certain
assets and operations of MMIK to the Partners (through NEWCO) and tie and
connect together the various agreements to be entered into by the parties via
this Master Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. Procedural Order
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The parties shall take the following actions and enter into the following
agreements in accordance with the following phases. It is intended that all the
actions and agreements in each phase be completed and entered into prior to
taking the actions in the following phase.
a. Phase One
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Formation of NEWCO. The Partners shall form and incorporate a joint
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stock company (chusik hoesa) under the laws of the Republic of Korea with
the paid-in capital of 100,000,000 won composed of 20,000 common shares
with par value of 5,000 won.
b. Phase Two
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(i) Stock Subscription and Shareholders
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Agreement
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MMI, the Partners, and NEWCO shall enter into a Stock Subscription
and Shareholders Agreement substantially in the form attached hereto as
Exhibit A, which shall detail the rights and obligations of the
shareholders of NEWCO and NEWCO, whereby MMI shall subscribe for 5,000
common shares with a par value of 5,000 won in exchange for a capital
contribution of 50 million won.
(ii) Option Agreement
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MMI, NEWCO, and the Partners shall enter into an Option Agreement
substantially in the form attached hereto as Exhibit B, whereby MMI shall
be given the option to purchase or designate the purchaser of all of the
voting shares in NEWCO at fair market value (but not less than 30,000
Korean won per share), beginning on the third anniversary of the Option
Agreement and continuing until the fifth anniversary of the Option
Agreement. The Parties shall cause NEWCO to place a legend on the share
certificates containing a reference to the terms of the option agreement
so as to give adequate notice of the restriction on the share transfer
under the Option Agreement to any third party who may acquire an interest
in the shares of NEWCO. The Option Agreement shall be executed
concurrently with the Stock Subscription and Shareholders Agreement.
c. Phase Three
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(i) Severance Contributions by MMI
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MMI shall inject funds to MMIK of up to
U.S. $350,000 to be used to pay the severance and other disassociation
benefits payable by MMIK to its employees; any severance and other
disassociation benefits payable over this amount shall be borne equally by
MMI and NEWCO. Notwithstanding the foregoing, the severance and other
disassociation benefits payable to Xxxx Xx Xxx shall be the responsibility
of and paid directly by MMI; MMI shall indemnify MMIK for any such payment
made to Xxxx Xx Xxx by MMIK.
(ii) POD Sales and Purchase Agreement
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MMI and MMIK have entered into a POD sales and purchase agreement
whereby MMIK has sold the Print on Demand equipment for U.S. $430,000 to
MMI.
(iii) Cancellation of Loan Guarantees
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All loan and overdraft guarantees of MMI guaranteeing MMIK's loan and
debt obligations, shall be canceled or discontinued.
(iv) License Agreement
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MMI and NEWCO shall enter into a license agreement substantially in
the form attached hereto as Exhibit C, which shall detail the terms and
conditions for NEWCO's continuing use of the trademark "Modus Media," or a
derivation thereof, as part of NEWCO's name and trademark.
(v) Sales Commission Agreement
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MMI and NEWCO shall enter into a sales commission agreement
substantially in the form
attached hereto as Exhibit D, which shall detail the terms and conditions
of sales commission to be paid to MMI and NEWCO for sales support provided
to each other.
d. Phase Four
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(i) Business Transfer Agreement
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MMIK and NEWCO shall enter into a business transfer agreement
substantially in the form attached hereto as Exhibit E, which shall detail
the terms and conditions of the transfer of certain operations and assets
of MMIK to NEWCO, including the transfer of employees. The transfer of the
business under this agreement shall be completed on the Closing Date as
defined in the business transfer agreement.
(ii) Dissolution of MMIK
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MMI shall adopt a resolution to dissolve and liquidate MMIK
(iii) Severance Pay & Employee Compensation
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MMIK shall pay all wages due, accrued benefits payable, severance and
other disassociation benefits payable to MMIK employees, except as
provided for Xxxx Xx Xxx in Section 1(i) within the time period required
by law or contract after the resolution to dissolve and liquidate MMIK is
passed.
e. Phase Five
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(i) Liquidation of MMIK. MMIK shall file with the relevant Korean
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court a request for an order
to commence the liquidation procedure of MMIK, and upon its receipt,
liquidate MMIK.
(ii) Issuance of New Shares. NEWCO shall issue 5,000 new shares to
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MMI in exchange for 50,000,000 won in accordance with the Stock
Subscription and Shareholders Agreement.
2. This Agreement and the transactions and related agreements contemplated
hereunder shall be subject to and contingent upon (i) the approval of MMI's
banks, and (ii) the approval of MMI Board of Directors.
3. Entire Agreement. This Agreement constitutes the entire understanding and
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agreement among all Parties and supersedes any and all prior or contemporaneous,
oral or written, representations, communications, understandings and agreements
among the Parties with respect to the subject matter hereof.
4. Modifications. This Agreement shall not be modified, amended, canceled or
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altered in any way, and may not be modified by custom, usage of trade or course
of dealing, except by an instrument in writing signed by all Parties. All
amendments or modifications of this Agreement shall be binding upon the Parties
despite any lack of consideration so long as the same shall be in writing and
executed by the Parties.
5. Waiver. Performance of any obligation required of a Party hereunder may be
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waived only by a written waiver signed by the other Parties, which waiver shall
be effective only with respect to the specific obligation described. The waiver
by each Party of a breach of any provision of this Agreement by any of the other
Parties shall not operate or be construed as a waiver of any
subsequent breach of the same provision or another provision of this Agreement.
6. Severability. If any provision hereof is found invalid or unenforceable
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pursuant to any executive, legislative, judicial or other decree or decision,
the remainder of this Agreement shall remain valid and enforceable according to
its terms, unless any Party deems the invalid or unenforceable provisions to be
essential to this Agreement, in which case each Party may terminate this
Agreement, effective immediately, upon written notice to the other Party.
7. Governing Law. This Agreement and all disputes arising out of or in
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connection with this Agreement shall be governed by, interpreted under, and
construed and enforceable in accordance with, the laws of the Republic of Korea.
8. Arbitration and Forum for Dispute Resolution. Any dispute arising out of
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or in relation to this Agreement, unless otherwise amicably resolved by
agreement between the parties, shall be finally settled by arbitration. Such
arbitration shall be conducted in Seoul, Korea in accordance with the Commercial
Arbitration Rules of the Korean Commercial Arbitration Board. Each party hereto
shall appoint one of the arbitrators, and those two arbitrators shall choose the
third arbitrator. The arbitration award rendered by three arbitrators so
appointed shall be final and conclusive, and shall be recognized and enforced by
any competent court having jurisdiction.
9. Expenses. Each Party shall pay all of its own expenses relating to the
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transactions contemplated by this Agreement, including without limitation the
fees and
expenses of its counsel and financial advisers, unless specifically provided
otherwise in the other agreements.
10. Assignment. No Party may assign this Agreement or any of the rights or
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obligations hereunder to any third party without the prior written consent of
the other Parties.
11. Third Party Benefits. This Agreement shall be binding upon, and inure to
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the benefit of, each of the Parties and their respective successors and
permitted assigns. Nothing contained in this Agreement, express or implied,
shall be deemed to confer any right or remedy upon, or obligate any Party to,
any person or entity other than the Parties.
12. No Partnership or Agency. Nothing in this Agreement shall be construed as
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creating a partnership, agency, employment relationship, franchise relationship
or taxable entity among the Parties, and no Party shall have the right, power or
authority to create any obligation or duty, express or implied, on behalf of the
other Parties, it being understood that the Parties are independent contractors
vis-a-vis one another.
13. Force Majeure. The failure or delay of any Party to perform any obligation
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under this Agreement solely by reason of acts of God, acts of civil or military
authority, civil disturbance, war, strikes or other labor disputes or
disturbances, fire, transportation contingencies, shortage of facilities, fuel,
energy, labor or materials, or laws, regulations, acts or order of any
governmental agency or official thereof, other catastrophes, or any other
circumstance beyond its reasonable control ("Force Majeure") shall not be deemed
to be a breach of this Agreement so long as the Party so prevented from
complying with this Agreement shall not have contributed to such Force Majeure,
shall have used its best efforts to avoid
such Force Majeure or to ameliorate its effects, and shall continue to take all
actions within its power to comply as fully as possible with the terms of this
Agreement. In the event of any such default or breach, performance of the
obligations shall be deferred until the Force Majeure ceases.
14. Notices. All notices, demands, requests, consents or other communications
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hereunder shall be in writing and shall be deemed sufficiently given if
personally delivered, in which case such notice shall be deemed given upon
delivery, or sent by registered or certified mail, return receipt requested, in
which case such notice shall be deemed given five (5) days after dispatch, or
sent by telecopy, in which case such notice shall be deemed given upon
acknowledgement of receipt by the recipient, to the Parties at the following
addresses, or to such other address as may be designated by written notice given
by each Party to the other Parties:
To Modus Media International:
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Address: 000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
X.X.X.
Telephone: 0-000-000-0000
Facsimile: 0-000-000-0000
To NEWCO:
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Address: 750-8 Komai-ri, Key-heung-ub,
Xxxxxx-xx, Xxxxxxx-xx
000-000 Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
To Partners:
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XxxXx Xxxx, XxxxxXxx Xxx, XxxxxXxx Xxxx
Address: 750-8 Komai-ri, Key-heung-ub,
Xxxxxx-xx, Xxxxxxx-xx
000-000 Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
TO MMIK
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Address: 750-8 Komai-ri, Key-heung-ub,
Xxxxxx-xx, Xxxxxxx-xx
000-000 Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
15. Compliance with Law. The Parties shall at all times act to assure that all
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the transactions contemplated herein shall comply with the laws and regulations
of Korea and other applicable authorities.
16. Counterparts. This Agreement may be executed in one (1) or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Captions. The section headings and captions contained herein are for
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purposes of reference and convenience only and shall not in any way affect the
meaning or interpretation of this Agreement.
18. Confidentiality of Agreement. The Parties agree that they will not
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disclose, disseminate or cause to be disclosed the terms and conditions of this
Agreement, except insofar as disclosure is reasonably necessary to carry out and
effectuate the terms of this Agreement, and insofar as any Party is required by
law to respond to any demand for information from any court, governmental entity
or governmental agency.
19. Language. The Parties agree that the English language shall be the language
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used for the interpretation of this Agreement.
IN WITNESS WHEREOF, the Parties executed this Agreement as of the date
first above written.
Modus Media International
/s/ Xxxx X. Xxxxxxx
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By:
Its: SR. V.P.
MMIK
/s/ [ILLEGIBLE]
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By:
Its: President
Partners
XxxXx Xxxx
/s/ XxxXx Xxxx
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XxxxxXxx Xxx
/s/ XxxxxXxx Xxx
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XxxxxXxx Xxxx
/s/ XxxxxXxx Xxxx
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