EXHIBIT: 9.1
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of May 20,
2003, is entered into by and among SIMEX TECHNOLOGIES, INC., a Delaware
corporation (the "Company"), each of those Persons listed on Exhibit A attached
hereto under the heading "Major Stockholders" (each a "Major Stockholder" and,
collectively, the "Major Stockholders"), and any other stockholder of the
Company that may be listed on Exhibit A, as amended from time to time as set
forth herein.
Defined terms not defined in the context in which used shall have the
meaning ascribed thereto as set forth in Section 10.11 hereof.
W I T N E S S E T H:
WHEREAS, the Major Stockholders own such number of shares of Common
Stock and Preferred Stock (collectively, the "Stock") as set forth on Exhibit A;
and
WHEREAS, the Company and the Major Stockholders believe it to be in the
best interests of the Company to insure the continuity of harmonious management
of the Company and the good performance thereof by providing for certain rights
and restrictions with respect to the shares of Stock and by addressing certain
matters related to the governance of the Company.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and obligations set forth in this Agreement, the
parties hereto agree as follows:
1. Transfers of Stock.
1.1 Restrictions on Transfers to Third Parties by any Major
Stockholder. From the date hereof until the earlier to occur of (i) the second
(2) year anniversary of this Agreement, or (ii) a Change of Control of the
Company (such period being referred to as the "Restricted Period"), no shares of
Stock or any interest therein now or hereafter owned by any Major Stockholder
may be Transferred, except for any of the following Transfers:
1.1.1 a Transfer to a transferee permitted under Section
1.2 hereof (a "Permitted Transferee");
1.1.2 a Transfer to a third party pursuant to, or otherwise
permitted under, Section 3 hereof;
1.1.3 an involuntary Transfer to a third party permitted
under Section 1.3 hereof; or
1.1.4 a Transfer pursuant to Rule 144 of the Securities Act
of 1933.
1.2 Permitted Transferees.
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1.2.1 Affiliates, Trusts, etc. Any Major Stockholder
(provided in each instance that such Major Stockholder is a natural person) may
Transfer any shares of Stock (1) with the prior written consent of the Major
Stockholders, to (i) a trust, the beneficiaries of which are such Major
Stockholder, such Major Stockholder's spouse, parents, lineal descendants, or
any other Person approved by the Major Stockholders, (ii) a corporation, the
majority voting power of which is owned by such Major Stockholder, such Major
Stockholder's spouse, parents, lineal descendants, or any other Person approved
by the Major Stockholders, (iii) a limited partnership, the general partner of
which is (A) such Major Stockholder, such Major Stockholder's spouse, parents,
lineal descendants, or any other Person approved by the Major Stockholders or
(B) a corporation, limited partnership or limited liability company, the
majority of the voting power of which is owned by such Major Stockholder, such
Major Stockholder's spouse, parents, lineal descendants, or any other Person
approved by the Major Stockholders, or (iii) a limited liability company, the
majority of the voting power of which is owned by such Major Stockholder, such
Major Stockholder's spouse, parents, lineal descendants, or any other Person
approved by the Major Stockholders; or (2) in case of such Major Stockholder's
death, by will or by the laws of intestate succession to executors,
administrators, testamentary trustees, legatees or beneficiaries. In addition to
the foregoing, any Permitted Transferee of any Major Stockholder may Transfer
shares of Stock back to such transferring Major Stockholder or to another
Permitted Transferee of such transferring Major Stockholder, provided, however,
that prior to any Permitted Transferee ceasing to be a Permitted Transferee of a
transferring Major Stockholder, such Permitted Transferee shall be obligated to
Transfer such Stock back to such transferring Major Stockholder or a Permitted
Transferee of such transferring Major Stockholder.
1.3 Involuntary Transfers. Any transfer of title or
beneficial ownership of shares of Stock upon default, foreclosure, forfeit,
court order, or otherwise than by a voluntary decision on the part of any Major
Stockholder, other than any transfer upon death (an "Involuntary Transfer"),
shall be void unless such Major Stockholder complies with this Section 1.3 and
enables the other Major Stockholders to exercise in full their rights hereunder.
Upon any Involuntary Transfer, the other Major Stockholders shall have the right
to purchase such shares pursuant to this Section 1.3 and the Person to whom such
shares have been transferred (the "Involuntary Transferee") shall have the
obligation to sell such shares in accordance with this Section 1.3. Upon the
Involuntary Transfer of any shares of Stock, such Major Stockholder shall
promptly (but in no event later than five days after such Involuntary Transfer)
furnish written notice to the Company and the other Major Stockholders
indicating that the Involuntary Transfer has occurred, specifying the name of
the Involuntary Transferee, giving a detailed description of the circumstances
giving rise to, and stating the legal basis for, the Involuntary Transfer. Upon
the receipt of such notice, and for sixty (60) days thereafter, the other Major
Stockholders shall have the right to purchase, and the Involuntary Transferee
shall have the obligation to sell any of the shares of Stock acquired by the
Involuntary Transferee for a purchase price equal to the Fair Market Value of
such shares of Stock. Each other Major Stockholder may purchase such Stock in
the same proportion that the Stock owned by each other Major Stockholder
desiring to purchase such Stock bears to the total number of shares of Stock
owned by all Major Stockholders. Unless allocated otherwise by the other Major
Stockholders, any amount of such Stock not so purchased by each other Major
Stockholder entitled to purchase may be purchased by other Stockholders
proportionally to their ownership of Stock, and so on until all of such Stock
has been purchased or none of the other Major Stockholders desire to purchase
any additional share of Stock. The closing of the purchase and sale hereunder
shall take place at the
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offices of the Company on a date designated by the Major Stockholders on at
least five (5) days notice to the seller.
2. Certain Closing Provisions.
2.1 Transfer Free and Clear of Liens and Encumbrances.
Shares of Stock transferred pursuant to Section 1.3 hereof, shall be transferred
free and clear of all liens and encumbrances attributable to the seller unless
otherwise agreed to by the purchaser(s).
2.2 Closing Documents. At the closing, the purchaser(s)
and seller shall execute and deliver such transfer documents and agreements as
may be agreed upon by them.
3. Tag-Along and Drag-Along Rights.
3.1 Tag Along Rights. The sale of any Stock by a Major
Stockholder or a Permitted Transferee thereof shall be subject to the tag-along
right set forth in this Section 3.1. No Major Stockholder (for purposes of this
Section 3.1, the "Selling Stockholder") may sell any shares of Stock to any
third party (except through a sale pursuant to Section 1.1.4) if such shares,
together with all shares of Stock previously sold by such Selling Stockholder to
third parties (except through a sale pursuant to Section 1.1.4), would represent
more than fifty percent (50%) of the aggregate number of shares of Common Stock
held by the Selling Stockholder as of the date hereof, unless each other Major
Stockholder is offered the right, on a pro rata basis (based upon the number of
shares of Common Stock owned by such Major Stockholder) to participate in any
such sale by selling to such third party its pro rata portion of Common Stock
for a purchase price per share of Common Stock and on other terms and
conditions, not less favorable to such Major Stockholder than those applicable
to the Selling Stockholder.
3.2 Drag Along Rights.
3.2.1 If holders of shares of Common Stock that represent
an aggregate of fifty one percent (51%) or more of the shares of the outstanding
Common Stock (the "Electing Stockholders"), propose to sell or otherwise
Transfer shares of Common Stock that represents shares constituting fifty
percent (50%) or more of their aggregate shares of Common Stock to any third
party in a bona fide arms-length transaction (except through a sale pursuant to
Section 1.1.4) then, if requested by the Electing Stockholders, each other Major
Stockholder shall join the Electing Stockholders in any such sale on a pro rata
basis by complying fully with Section 3.2.2. The material terms and conditions
of such sale, including, without limitation, the purchase price per share of
Common Stock, shall be the same for all holders of Common Stock.
3.2.2 Each Major Stockholder who is required to join the
Electing Stockholders in a sale pursuant to Section 3.2.1 shall, at the request
of the Electing Stockholders, (i) Transfer, upon receipt of the purchase price
therefor, such Major Stockholder's pro rata portion of the shares of Stock to
any third party purchaser or purchasers free and clear of all security
interests, liens, claims or encumbrances, (ii) execute and deliver any agreement
being executed and delivered by the Electing Stockholders (on no less favorable
agreement than the one being signed by the Electing Stockholders) containing
such representations and warranties (or, at the option of such Major
Stockholder, indemnities in respect of representations and warranties and
representations and warranties relating exclusively to such Major Stockholder's
ownership and
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title to its shares of such transaction, provided, however, that no Major
Stockholder shall be required to provide indemnification by such Major
Stockholder, in the aggregate, in an amount that is in excess of the lesser of
(A) its pro rata portion of the related liability or (B) the purchase price to
be received by such Major Stockholder in such sale, except in the case of such
Major Stockholder's fraudulent acts, or to make any representations or
warranties which such Major Stockholder reasonably believes to be false; (iii)
vote in favor of any such transaction of which the Electing Stockholders have
voted in favor and (iv) execute and deliver such instruments of conveyance and
assignment and take such other actions as reasonably requested by the Electing
Stockholders in order to consummate such transaction.
4. Voting Agreement.
4.1 Board of Directors. Until the termination of this
Agreement, each Major Stockholder agrees that from and after the date of this
Agreement it will nominate and elect and will vote all of the shares of Stock
owned or held of record by such Major Stockholder to elect and, thereafter, for
such period, to continue in office the Company's Board of Directors consisting
of each of the following: Kyu Xxxx Xxxx, Xxxxx Xxxxxxx, Xxxx Xxxx, L. Xxxxx
Xxxxxxx and Xxxx Xxxxxxx (but not their successors and assigns). Each Major
Shareholder further agrees to maintain a Board of Directors of the Company
composed of five (5) members.
4.2 Proxy. In order to effectuate Section 4.1, and in
addition to and not in lieu of Section 4.1, each Major Stockholder owning shares
of Stock hereby grants to the Secretary of the Company an irrevocable proxy
pursuant to Section 212(e) of the General Corporation Law of the State of
Delaware (the "Delaware Code"), coupled with an interest, solely for the purpose
of voting all of the shares of Stock of the Company owned by the grantor of the
proxy for the election of directors nominated and composition of the Board in
accordance with Section 5.1, with a term corresponding to the rights in Section
4.1.
5. Stock Certificate Legends.
5.1 Mandatory Legends. A copy of this Agreement shall be filed
with the Secretary of the Company and kept with the records of the Company. Each
certificate representing shares of Stock owned by the Major Stockholders shall
bear the following legends:
THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO RESTRICTIONS ON
TRANSFER AND OTHER CONDITIONS AND RESTRICTIONS, AS SPECIFIED IN THE
STOCKHOLDERS' AGREEMENT OF THE COMPANY, DATED AS OF MAY 1, 2003, AS THE SAME MAY
BE AMENDED FROM TIME TO TIME, COPIES OF WHICH ARE ON FILE AT THE OFFICE OF THE
COMPANY AND WILL BE FURNISHED WITHOUT CHARGE TO ANY STOCKHOLDER OF THE COMPANY
UPON WRITTEN REQUEST.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL AND OTHER SPECIAL RIGHTS OF EACH CLASS OR SERIES OF STOCK AUTHORIZED TO
BE ISSUED AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND OR RIGHTS.
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THE STOCK REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE RESOLD, TRANSFERRED, ASSIGNED, OR HYPOTHECATED
UNLESS (A) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR ANY
APPLICABLE STATE SECURITIES LAWS COVERING SUCH SECURITIES, (B) AN EXEMPTION FROM
THE REGISTRATION PROVISIONS OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS
IS AVAILABLE, (C) THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR
(D) THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THE STOCK
REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SUCH ACT.
5.2 Additional Legends. In addition, certificates representing
shares of Stock owned by residents of certain States shall bear any legends
required by the laws of such States. All Stockholders shall be bound by the
requirements of such legends to the extent that such legends are applicable.
Upon a registration of any shares of Common Stock, the certificate representing
such shares shall be replaced, at the expense of the Company, with certificates
not bearing the legends required by Section 5.1.
6. Miscellaneous.
6.1 No Other Arrangements or Agreements. Each Major
Stockholder hereby represents and warrants to the Company and the other Major
Stockholders that he, she or it has not entered into or agreed to be bound by
any other arrangements or agreements of any kind with any other Person (other
than the Company) with respect to his, her or its shares of Stock, or any
interest therein, including, but not limited to, arrangements or agreements with
respect to the acquisition, disposition or voting of shares of Stock (whether or
not such agreements and arrangements are with the Company, other stockholders or
other Persons). Each Major Stockholder agrees with the Company that such Major
Stockholder will not be a party to or enter into any such other arrangements or
agreements as described above with any other Person as long as any of the terms
of this Agreement remain in effect, except for any agreement between a Major
Stockholder and the Company whereby such Major Stockholder agrees to Transfer
Stock to the Company upon the termination of his employment with the Company or
any Subsidiary of the Company or the termination of any consulting or similar
relationship with the Company or any Subsidiary of the Company.
6.2 Amendment and Modification. This Agreement may be amended,
modified or supplemented only by written agreement of the Requisite Holders. If
this Agreement is amended in accordance with the preceding sentence, the Company
shall notify Stockholders promptly after such amendment, modification or
supplement shall take effect.
6.3 Assignment.
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6.3.1 Assignment Generally. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors and permitted
assigns.
6.3.2 Agreements to be Bound. Notwithstanding anything to
the contrary contained in this Agreement, any Transfer by any Major Stockholder
to any Permitted Transferee, or any Involuntary Transfer to an Involuntary
Transferee, shall be permitted under the terms of this Agreement only if such
Permitted Transferee, or Involuntary Transferee, as the case may be, shall
execute and deliver to the Company an Agreement to be Bound to this Agreement in
substantially the form of Exhibit B hereto. Upon the execution of such
instrument by such transferee, such transferee shall be deemed to be a Major
Stockholder for all purposes of this Agreement, subject to the same obligations
as the transferring Major Stockholder.
6.3.3 Additional Stockholders. Each of the Major
Stockholders hereby acknowledges that on or after the date hereof the Company
may, from time to time, with the prior approval of the Board, offer and sell
shares of Stock to various Persons who may become "Major Stockholders" under
this Agreement. No Major Stockholder shall have rights in the nature of
preemptive rights with respect to any such additional Stock sold to such
Persons. Any such investor shall, as a condition precedent to the acquisition of
such shares of Stock (i) become a party to this Agreement by executing an
Agreement to be Bound hereto in substantially the form of Exhibit B hereto and
(i) if such investor is a resident of a state with a community property system,
cause his or her spouse to execute a Spousal Waiver in substantially the form of
Exhibit C hereto and deliver such Agreement and Spousal Waiver, if applicable,
to the Company. Upon such execution and delivery, such Person shall be deemed to
be a Major Stockholder for all purposes of this Agreement and the Company shall
amend Exhibit A hereto to reflect such additional Major Stockholder.
6.4 Termination.
6.4.1 Termination Generally. Any party to, or Person who is
subject to, this Agreement who ceases to own any shares of Stock or any interest
therein in accordance with the terms of this Agreement shall cease to be a party
to, or Person who is subject to, this Agreement and thereafter shall have no
rights or obligations hereunder, provided that any Transfer of shares of Stock
by any Major Stockholder in breach of this Agreement shall not relieve such
Major Stockholder of liability for any such breach.
6.4.2 Termination of Rights and Obligations. All rights and
obligations pursuant to this Agreement shall terminate (excluding obligations
that have arisen and are outstanding prior to termination) upon the earlier of
(a) a Change in Control of the Company, or (b) the date on which only one Major
Stockholder owns Stock.
6.5 Recapitalization, Exchanges, etc. Affecting the Stock. The
provisions of this Agreement shall apply to any and all shares of capital Stock
of the Company or any successor or assignee of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in exchange for, or in substitution for the shares of Stock, by reason of any
stock dividend, split, reverse split, combination, recapitalization,
reclassification, merger,
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consolidation, or otherwise in such a manner as to reflect the intent and
meaning of the provisions hereof.
6.6 No Third Party Beneficiaries. Except as otherwise provided
herein, this Agreement is not intended to confer upon any Person, except for the
parties hereto, any rights or remedies hereunder.
6.7 Further Assurances. Each party hereto shall do and perform
or cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto or Person subject hereto may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby.
6.8 Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Delaware, without
giving effect to the choice of law principles thereof.
6.9 Invalidity of Provision. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction.
6.10 Notices. Notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
sent by next-day or overnight mail or delivery or (d) sent by facsimile as
follows:
if to the Company, at:
___________________________
___________________________
___________________________
Facsimile No.: ____________
Attn: ____________________
with a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx Traurig, LLP
The Forum
0000 Xxxxxxxxx Xxxxxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
If to any Major Stockholder to the address and facsimile
number as listed on the signature page hereto.
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If to any other Person who becomes a Major Stockholder after
the date hereof, to such Major Stockholder's address or
facsimile number set forth in the counterpart of this
Agreement executed and delivered by such Major Stockholder
pursuant to this Agreement;
or to such other person or address/fax as any party shall specify by
notice in writing to the Company. All such notices, requests, demands, waivers
and other communications shall be deemed to have been received (w) if by
personal delivery on the day after such delivery, (x) if by certified or
registered mail, on the seventh business day after the mailing thereof, (y) if
by next-day or overnight mail or delivery, on the day delivered, (z) if by
facsimile on the next day following the day on which such telecopy was sent,
provided that a copy is also sent by certified or registered mail.
6.11 Defined Terms. As used in this Agreement, the
following terms shall have the meanings ascribed to them below:
6.11.1 Change of Control. The term "Change of Control" shall
mean (i) the sale, transfer or other conveyance of all or substantially all of
the assets of the Company, (ii) the merger or consolidation of the Company with
or into any other Person whereafter the stockholders of the Company immediately
prior to such merger or consolidation fail to own fifty percent (50%) or more of
the voting power of the surviving Person or (iii) the sale (whether through one
sale or multiple sales to a single Person or group of related Persons during any
period of time after the date hereof) by the stockholders of the Company of an
aggregate of fifty percent (50%) or more of the capital Stock (by voting power)
of the Company owned by such stockholders in the aggregate, immediately prior to
such sale or sales.
6.11.2 Fair Market Value. The term "Fair Market Value" shall
mean with respect to any share of Stock (including, without limitation Preferred
Stock and Common Stock), the closing price per share of the Common Stock of the
Company, on any given date, on the principal national securities exchange on
which the Common Stock of the Company is then listed or admitted to trading or,
if not then listed or traded on any such exchange, on the NASDAQ National Market
System, or if then not listed or traded on such system, the closing bid price
per share on NASDAQ or other over-the-counter trading market. If at any time
such quotations are not available, the "Fair Market Value" will be the highest
price per share that the Company could obtain from a willing buyer (not a
current employee or director) for shares of Common Stock sold by the Company,
from authorized but unissued shares, as mutually determined in good faith by the
Board of Directors of the Company.
6.11.3 Person. The term "Person" means an individual,
corporation, partnership, limited liability company, association, trust or other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
6.11.4 Requisite Holders. The term "Requisite Holders" shall
mean the holders of at least sixty-seven percent (67%) of the outstanding shares
of Common Stock held by the Major Stockholders.
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6.11.5 Subsidiary. The term "Subsidiary" means, at any time,
with respect to any Person (the "Subject Person"), (i) any Person of which
either (A) more than 50% of the shares of stock or other interests entitled to
vote in the election of directors or comparable Persons performing similar
functions (excluding shares or other interests entitled to vote only upon the
failure to pay dividends thereon or other contingencies) or (B) more than a 50%
interest in the profits or capital of such Person are at the time owned or
controlled directly or indirectly by the Subject Person or through one or more
Subsidiaries of the Subject Person or by the Subject Person and one or more
Subsidiaries of the Subject Person, or (ii) any Person whose assets, or portions
thereof, are consolidated with the net earnings of the Subject Person and are
recorded on the books of the Subject Person for financial reporting purposes in
accordance with generally accepted accounting practices.
6.11.6 Transfer. The term "Transfer" means any direct or
indirect sale, assignment, mortgage, transfer, pledge, hypothecation or other
disposition or transfer.
6.12 Headings; Execution in Counterparts. The headings and
captions contained herein are for convenience and shall not control or affect
the meaning or construction of any provision hereof. References to "herein,"
"hereto" or the like refer, unless provided otherwise or the context otherwise
requires, to this Agreement as a whole. This Agreement may be executed in any
number of counterparts, including fax, each of which shall be deemed to be an
original and which together shall constitute one and the same instrument.
6.13 Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and supersede all prior agreements and understandings
among the parties with respect to such subject matter. There are no
restrictions, promises, representations, warranties, covenants or undertakings
relating to the shares of Stock, other than those expressly set forth or
referred to herein or in the Certificate of Incorporation.
6.14 Enforcement of this Agreement. Each Major Stockholder
hereby expressly agrees and declares that it would be impossible to measure in
money the damages which would accrue to any other Major Stockholder or Company
hereto by reason of the failure of any party to perform any of the obligations
under this Agreement. Therefore, each Major Stockholder expressly agrees that in
the event the Major Stockholder fails to tender such Major Stockholder's Stock
as required by this Agreement, such purchaser(s) may demand compliance by the
seller with the terms of this Agreement by sending written notice thereof to
such Major Stockholder or the Major Stockholder's legal representative. If the
Major Stockholder or legal representative fails to comply with the terms of this
Agreement within fifteen (15) days after receipt of such written notice, then
any such purchase of Stock may be consummated by transferring, on the books of
the Company, the selling Major Stockholder's Stock to the purchaser upon the
purchaser(s) tendering to the selling Major Stockholder or the legal
representative, all sums and other documents due hereunder. Each Major
Stockholder irrevocably authorizes Company, as his, her or its agent and
attorney-in-fact, to take all steps necessary to effect such purchase and sale.
Any other violation or threatened violation of this Agreement by Company, any
Major Stockholder or a legal representative of a Major Stockholder, shall be
sufficient basis for injunctive relief on behalf of any other Major Stockholder
or the Company. Each Major Stockholder hereby agrees that if such proceeding be
instituted by any other Major
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Stockholder or the Company against him, the Major Stockholder against whom such
proceeding is instituted hereby waives, in advance, any claim or defense that
the party bringing such action has an adequate remedy at law, all parties hereby
agreeing that in the event of breach or threatened breach of this Agreement by
any Major Stockholder, neither the other Major Stockholders nor the Company will
have an adequate remedy at law. Such equitable remedies shall be cumulative and
not exclusive and shall be in addition to any other remedy which the Company or
any Stockholder may have. Each MAJOR Stockholder hereby irrevocably submits to
the non-exclusive jurisdiction of the state and federal courts in ATLANTA,
GEORGIA for the purposes of any suit, action or other proceeding arising out of
or based upon this Agreement or the subject matter hereof. Each MAJOR
Stockholder hereby consents to service of process by mail made in accordance
with APPLICABLE LAW.
6.15 Legal Fees. In any controversy, claim or dispute between
the parties hereto arising out of or relating to this Agreement, or the breach
thereof, the prevailing party shall be entitled to recover from the losing
party, in addition to any other relief, reasonable expenses, attorneys' fees and
costs actually incurred.
6.16 Counterparts. This Agreement may be executed in multiple
counterparts, all of which shall be an original but all of which shall
constitute one and the same agreement.
[SIGNATURES ON FOLLOWING PAGES]
IN WITNESS WHEREOF, this Agreement has been signed by each of the
parties hereto as of the date first above written.
SIMEX TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Title: Chief Executive Officer
--------------------------
"Major Stockholders"
/s/ Xxxx Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxx Xxxxxxx
Wooju Communications Co., , LTD
By: /s/ Xxx Xxxxx Tae
---------------------------
Title: President
--------------------------
Eutopeon Enterprises, LLC
By: /s/ L. Xxxxx Xxxxxxx
----------------------------
Title: Managing Member
----------------------------
EXHIBIT "A"
STOCKHOLDERS
As of May 20, 2003
MAJOR STOCKHOLDERS Shares Owned:
-------------
Xxxx Xxxx Xxxxxxx 10,316,995 SHARES OF COMMON STOCK
897,625 SHARES OF SERIES B PREF. STOCK
Wooju Communications Co., LTD 6,877,997 SHARES OF COMMON STOCK
928,006 SHARES OF SERIES A PREF. STOCK
598,417 SHARES OF SERIES B PREF. STOCK
Eutopeon Enterprises, LLC 2,436,016 SHARES OF COMMON STOCK
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EXHIBIT "B"
FORM OF AGREEMENT TO BE BOUND
SIMEX TECHNOLOGIES, INC.
STOCKHOLDERS' AGREEMENT
The undersigned hereby joins in and signifies adoption of and agreement
to be bound, as a Major Stockholder, by the terms and conditions of the
Stockholders Agreement of SIMEX TECHNOLOGIES, INC. (the "Company"), dated May
20, 2003, and all amendments thereto (the "Stockholders' Agreement"), and
authorizes the attachment of this signature page to a duplicate original of the
Stockholders' Agreement.
The undersigned acknowledges receipt of a copy of the Stockholders'
Agreement and all amendments thereto. The undersigned acknowledges that he(she)
has read such Stockholders' Agreement and all amendments thereto and understands
that by signing this document, he(she) shall thereby assume all of the duties
and obligations of a Major Stockholder thereunder.
Capitalized terms used herein have the meanings set forth in the
Stockholders' Agreement.
Dated: ___________________________ _______________________________
(Signature)
Number of shares held:
__________________________________ _______________________________
(print name)
_______________________________
_______________________________
(address)
- 0 -
XXXXXXX "X"
XXXXXXX XXXXXX
___________________________ [Name of Spouse] hereby waives and releases any and
all equitable and/or legal claims and rights, whether actual, inchoate or
contingent, which he or she may acquire with respect to the disposition, voting
or control of the shares of the capital Stock of SIMEX TECHNOLOGIES, INC.
subject to this Stockholders' Agreement, except for rights in respect of the
proceeds of any disposition of such Stock.
_______________________________
[Signature of Spouse]
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