AGREEMENT
Exhibit 10.1
AGREEMENT
This
Agreement is made and entered into this 31' day of December, 2009 by and between
the parties stated hereunder;
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1.
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Woori
Private Equity Fund, a company incorporated under the laws of the Republic
of Korea having its principal office at 20th
FL, Youngpoong Xxxx., Xxxxxx-xxxx 00, Xxxxxx-xx, Xxxxx, Xxxxx (the "Woori
PEF")
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2.
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Cintel
Corp., a company incorporated under the laws of the State of Nevada having
its principal office
at 000 X. Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000 XXX (the
"Cintel")
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3.
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Cintel,
Co., Ltd., a company incorporated under the laws of the Republic of Korea
having its principal
office at Xxxxx-xxxx 00, Xxxx-xx, Xxxxx, Xxxxx (the "Cintel
Korea")
(Each
a "Party", collectively "Parties")
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Recitals
1.
Woori PEF
entered into Convertible Bonds Subscription Agreement (the "Convertible Bond
Agreement") with Cintel on March 15, 2007, and undertook
the convertible bonds of 60 billion won (the "Convertible
Bonds") issued by Cintel on April 12, 2007.
2.
Cintel
established the right of pledge on 10,718,080,000 won of the ordinary deposit
account under the name of Cintel in Woori Bank (the "Pledged Deposit") in order to ensure the repayment of
the convertible bonds subscribed by Woori PEF. Thereupon, Cintel offered 501,000
common stock of Phoenix Digital Tech(the "PDT") owned by Cintel, 31.38% of Bonghwang
Semiconductor Yuhan Gongsa(the "PSTS")
and 220,000 common stocks of Bluecom Co., Ltd. ("Bluecom") and 2,644,426 common stock of
BKLCD Co., Ltd.( "BKLCD") owned by Cintel
Korea (the 501,000 common stock of PDT, 31.38% of PSTS, 220,000 common stocks of
Bluecom and 2,644,426 common stocks of BKLCD, collectively the "Pledged
Securities")
3.
Cintel acknowledges the fact that it is currently in default under the terms of
the Convertible Bond Agreement due to the fact that its subsidiary, PDT of
opening a joint management procedure by financial institutions. So, Parties
shall cure the default, and agree the followings on the condition of the Woori
PEF Investment Committee's approval, and shall perform this Agreement in good
faith.
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Article
1 (Payment of the
Pledged Deposit)
Cintel
hereby agrees to transfer to and authorize the payment of the Pledged Deposit to
Woori PEF, or as Woori PEF may direct. Cintel shall execute such documents as
Woori PEF may direct to provide full access and to facilitate the withdrawal of
the principal and interest of Pledged Deposit by issuing such documents to
facilitate Woori Bank's withdrawal of the principal and interest of Pledged
Deposit including withdrawal slip stamped with the corporation's seal used for
opening the deposit account of the principal and interest of Pledged Deposit
right after signing of the Agreement.
Article
2 (Executing the Sale
and Purchase of Pledged Securities)
(1)
Cintel or Cintel Korea and Woori PEF agree to sell and buy the pledged
securities as follows:
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the
sales share
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Seller
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Purchaser
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The
Purchase price
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PDT
common stock 501,000 share
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Cintel
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Woori
PEF
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9,350,664,000
won
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PSTS
owning 31.38%
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Cintel
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Woori
PEF
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11,905,481,725
won
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Bluecom
common stock 220,00 share
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Cintel
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Woori
PEF
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1,896,180,000
won
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BKLCD
common stock 2,644,426 share
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Cintel
Korea
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Woori
PEF
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15,866,556,000
won
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(2)The
payment of Purchase Price under paragraph (1) shall be made by offset of the
principal and interest of the Convertible Bonds in the amount that is equivalent
to the Purchase Price. However, with regard to payment of the Purchase Price for
the 2,644,426 common stocks of BKLCD owned by Cintel Korea, such payment shall
be by way of an agreement to offset deemed to be constituted hereby among
Cintel, Cintel Korea, and Woori PEF (the "Offset Agreement")
(3) Cintel
and Woori PEF agree to exchange the signed copies of the (Annexl) Share Purchase
Agreement right after the signing of this Agreement.
(4) The
closing date of each Share Purchase Agreement under paragraph (3) in this
Article shall be, whichever comes first, (i) the date when Woori PEF notifies
Cintel of the offsetting of the principal and interest of the Convertible Bonds
against the Purchase Price and Woori PEF becomes a shareholder
of the Pledged Securities by transferring a title; or (ii) December 31, 2009,
provided, however, that the closing date of the sale and purchase of the PDT
common stock shall be the date after the share purchase agreement of UB
precision common share of 6,210,000 is signed with the party which is designated
by Cintel.
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(5)Woori PEF
may sell and purchase part of its pledged securities on the installment basis,
may notify Purchaser as a third party of it under the Purchase Agreement. in
this case, under the paragraph (3) in the Article, the Purchase Agreement
exchanged shall be deemed to be modified upon the Woori PEF's
notification.
(6)Each
party shall be responsible for such parties payment of any tax and/or public
utilities charge required by the sale and purchase of the Pledged Securities
under applicable tax laws and regulations.
Article
3 (Cintel's
Obligations)
(1)
Cintel agrees to issue a Voting Rights Proxy Agreement (Annex 2) and Power of
Attorney to Transfer a Title (Annex 3) simultaneously with the signing of this
Agreement in order for Woori PEF to lawfully exercise is ownership right and
shareholder right to the Pledged Securities.
(2)
Cintel agrees to ask and provide to Woori PEF resignation letters of directors
and auditors, whom Cintel elected to serve with PDT and Bluecom following the
signing of this agreement, and the sale and purchase of stocks between PDT and
Bluecom is completed.
(3)
Cintel shall have the board of directors of PDT and Bluecom convene a special
shareholders' meeting in order to elect directors and auditors designated by
Woori PEF, immediately after the signing of the Agreement, provided, however,
that such actions shall not be necessary after the directors of PDT and Bluecom
designated by Cintel resign or the title of the stock of PDT and Bluecom is
transferred to Woori PEF.
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Article
4 (Repayment of the
Principal and Interest of the Convertible Bonds)
(1) The
principal and interest of the Convertible Bonds to be claimed against Cintel by
Woori PEF shall be the amount which adds 19% compound interest per year to 60
billion won of the Convertible Bonds in the principal amount from the date of
issue of the Bonds until the signing of the Agreement and deducts paid interest
(the "Principal and
Interest").
(2)
Subject to the condition that all obligations referred to in i), ii) and iii)
below shall have been paid, Woori PEF agrees to waive its rights, in respect of
the amount of any redemption obligations that remain after deducting, from the
total principal and interest payable on the Convertible Bonds, the amounts paid
in respect of i), ii) and iii) below (such remaining amounts, hereby agrees that
upon consummation of the transactions contemplated by this Agreement, the
outstanding principal and interest under the Convertible Bonds shall be reduced
by the following: (the "Remaining Principal and
Interest"):
i ) the
principal and interest of the Pledged. Deposit under Article I
ii) the
Total sum of Purchase Price under Article 2
iii) the
amounts of all debt obligations that have become the actual and outstanding (as
opposed to contingent ) debt obligations of PDT under.
PbT'S.surety obligations,
(3)
Notwithstanding the waiver of Remaining Principal and Interest
provided for in paragraph (2) of the Article, in the event that
Cintel makes any payments to any third-party creditors in respect of unsecured
convertible bond obligations, Cintel shall be obligated to pay Woori PEF such
percentage of the Remaining Principal and Interest as corresponds to the average
ratio of such third parties recovery of the bond claims in relation to the
amounts that remain unpaid.
Article 5 (Right of First Refusal to Cintel
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(I) Woori
PEF shall give the right of first refusal on the PSTS shares (hereinafter
referred to as "PSTS common stocks) acquired pursuant to Article 2 to Cintel or
the party designated by Cintel (hereinafter • referred to as "Cintel"),
meanwhile, Cintel shall provide Woori PEF with 100,000 common stocks of BKLCD
without compensation other than Pledged securities until December 31,
2009.
(2) The right
of first refusal of this Article 5-(1) shall be based on the number of stocks
(hereinafter referred to as "the number of stocks sold") which PEF notices to
Cintel after deciding the sale of stock of PSTS to third party. Cintel may
decide if it excises the right of first refusal on the whole number of
stocks
sold. When the right of first refusal is exercised, the sale price shall be the
amount on which Woori PEF sales to a third party, provided, however, that in
case Woori PEF and the third party fail to enter into the contract, the right of
first refusal shall survive regardless of exercise of it.
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(3) The right
of first refusal specified on Article 5-0) shall be lapsed unless the title of
100,000 common stocks of BKLCD is transferred to PEF without compensation within
the period set forth on this Article 5-0). In addition, the right shall be
considered to be lapsed if Cintel fails to exercise (It means that the sale
price is paid after the intention to purchase first is expressed) its rights
within two (2) weeks (If over 2weeks are given to third party in relation of the
payment of sale price, the period shall follow the one) after Woori PEF notice
our intention to sale, including the sale price of the PSTS stocks to be
transferred to third parties, provide, however, that in the event PSTS is listed
on the stock market, the right of first refusal specified on this Article 5-0)
shall be lapsed if Cintel fails to exercise the right of first refusal of this
Article 5-(1) at the closing price of notice date until the following day noon
after Woori PEF gives to Cintel the notification of stock sale.
(4) Although
the right of first refusal of Cintel is lapsed pursuant to this Article 5-(3),
the common stocks of BKCLD given to Woori PEF in compensation for the right of
first refusal according to this Article 5-(1) shall not be returned to
Cintel.
Article
6 (Amending Agreement
related to the Convertible Bonds)
With
regard to the Convertible Bonds, the Convertible Bonds Agreement made by and
between Woori PEF and Cintel shall be deemed to be modified to reflect the
Agreement.
Cintel
and Woori PEF shall execute Korean versions of this Agreement and the agreements
annexed hereto; provided, however, that in the event of any conflict in
interpretation between the Korean version and the English version of this
Agreement or the agreements annexed hereto, the Korean version shall be
controlling.
Article 7 (Good Faith)
Woori PEF
and Cintel shall cooperate in good faith in order for Parties to perform their
obligations pursuant to the Agreement.
Article 8 (Confidentiality)
Parties
agree that at all times it will hold in strict confidence with regard to the
conclusion, contents, and fulfillment of the Agreement and not disclose to any
third party Confidential Information of the other, except as approved in writing
by the other party to this Agreement.
Each
party agrees that it will not use the Confidential Information for any purpose
that is not related to this Agreement.
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Article
9 (Effectuation and
Termination)
(1) The
Agreement will come into force on the clay of Woori PEF' s investment
committee's approval and its signature.
(2) The
Agreement shall be terminated and become void if:
(1) the
Parties mutually so agree in writing;
(2) a
Party does not perform the obligation provided in the Agreement, and the other
Party requested
the nonfeasant Party to perform the obligation. However, obligation is not
performed within two (2) weeks without due reason; provided, however, that any
action/non-action taken in compliance with an administrative order of relevant
regulatory authorities or in compliance with a decision of the association of
PDT's creditor financial institutions, shall not be deemed to constitute a
failure to perform under this Agreement.
(3) If the
Agreement is terminated by Cintel's not fulfilling the obligation provided in
the Agreement, Woori PEF may immediately accelerate the remaining principal and
interests of the Convertible Bonds based on
the nonfeasance.
Article
10 (Damages)
A Party
that fails to perform its obligations provided in this Agreement shall
compensate the damage accrued to the other Party. However, the occurrence or
existence of the event or circumstances referred to in either or both of
subparagraphs T.
and of paragraph (2) in Article 9 shall in no way be deemed to constitute
a failure on the part of Woori PEF's to perform any of its obligations
hereunder.
Article
11 (Dispute
Settlement)
Pursuant
to the Agreement, any dispute or claim arising out of or relating to this
Agreement will be amicably settled in principle; otherwise Seoul Central
District Court shall have the exclusive original jurisdiction as a competent
court for a trial in case any action is to be taken.
(Signatures
on Following Page)
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To prove that this Agreement took place, the Agreement should be
prepared in triplicate; and each party shall sign and keep the respective
copy.
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Parties:
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| Woori PEF | ||||
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/s/
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Woori
Private Equity Fund
Managing Partner Woori Private Equity
CEO
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| Cintel | ||||
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/s/
Xxxx X. Xxx
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Xxxx
Xxx
CEO
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| Cintel Korea | ||||
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/s/
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Cintel
Co., Ltd.
CEO
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