Exhibit 10.15
PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") is made and entered into as
of May 30, 2005, by and between PPOL, Inc., a California corporation
("Purchaser"), K.K. Green Capital, a Japan corporation ("Seller"), and K.K. U
Service, a Japan corporation, ("USC"), and each of Seller, Purchaser and USC a
"Party", and collectively, the "Parties").
RECITALS
A. Seller is the majority owner of Foster Strategic Management
Partnership, a Singapore partnership, which owns approximately 10,547,594 shares
of common stock of the Purchaser, representing approximately 58.62% of Seller's
issued and outstanding common stock.
B. Seller is the owner of 38,000 shares (the "USC Shares") of common
stock of USC, representing one hundred percent (100%) of the issued and
outstanding common stock of USC.
C. By this Agreement, among other things, Purchaser desires to purchase
and acquire from Seller, and Seller desires to sell and transfer to Purchaser,
the USC Shares, all upon the terms, conditions and covenants set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, and for valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and
subject to the terms, conditions and covenants set forth below, the Parties
hereto agree as follows:
1. SALE OF USC SHARES. Upon the execution hereof, and subject to
satisfaction of the conditions set forth in Section 5, below, Seller hereby
sells, assigns and transfers, and Purchaser hereby acquires and purchases, the
USC Shares. The Parties acknowledge that the values for which the USC Shares are
purchased by the Purchaser are as indicated on EXHIBIT A.
2. PAYMENT OF PURCHASE PRICE FOR USC SHARES. As consideration for the
purchase of the USC Shares, Purchaser hereby pays to Seller, an amount equal to
JPY 380,000,000 in immediately available funds via wire transfer to a bank
account designated by the Seller. Seller shall be responsible for all payments
to any governmental authority, including but not limited to national, prefecture
or local governments, of any and all taxes, including but not limited to,
transfer, withholding, stamp and consumption taxes to the extent applicable to
the cash payment by Purchaser.
3. DELIVERY OF STOCK CERTIFICATES Upon the execution of this Agreement,
Seller shall deliver the following items to Purchaser:
(a) stock certificates evidencing the USC Shares with each
such certificate to be duly and validly endorsed in favor of Purchaser or
accompanied by a separate stock power duly and validly executed by Seller;
(b) a copy of USC board resolutions authorizing the transfer
of USC Shares from Seller to Purchaser; and
(c) all of the books and records of Seller relating to USC;
4. REPRESENTATIONS AND WARRANTIES.
(a) Seller hereby represents and warrants to Purchaser, as
follows:
(i) Seller is a corporation duly organized, validly
existing and in good standing under the laws of Japan. Seller has all necessary
power and authority to enter into this Agreement and to consummate the
transaction contemplated hereby without obtaining the consent or approval of any
third party.
(ii) All corporate action on the part of the Seller
necessary for authorization, execution and delivery of this Agreement and the
performance of all obligations of the Seller hereunder has been taken. Upon
execution and delivery, this Agreement will be a valid and binding obligation of
the Seller, enforceable in accordance with its terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, or other laws
of general application relating to or affecting enforcement of creditor's rights
and by general equitable principles.
(iii) The execution, delivery and performance of this
Agreement will not, with or without the giving of notice and/or the passage of
time, (i) violate any provision of law applicable to Seller (ii) conflict with
or result in the breach of, termination of, or constitute a default under or
pursuant to any judgment, order, injunction, decree or ruling of any court or
governmental authority by which Seller is a party or by which Seller is bound,
or (iii) conflict with or result in the breach of, or constitute a default under
any of the terms, conditions or provisions of any agreement or instrument or
other obligation to which Seller is a party or by which Seller's properties or
assets are subject.
(b) Each of Seller and USC hereby represents and warrants to
Purchaser, as follows:
(i) USC is a corporation duly organized, validly
existing and in good standing under the laws of Japan.
(ii) The authorized capital stock of USC consists of
120,000 shares, of which 38,000 shares are issued and outstanding. All the
outstanding shares of USC's capital stock are duly authorized, validly issued,
fully paid and non-assessable. Except as specifically provided in the Revised
Letter of Understanding, there are no existing options, warrants, calls,
pre-emptive rights, subscriptions or other rights, agreements, arrangements or
commitments of any character, relating to the issued or unissued capital stock
of USC obligating USC to issue, transfer or sell or cause to be issued,
transferred or sold any shares of capital stock, or other equity or debt
interest in, USC or securities convertible into or exchangeable for such shares
or equity interests.
(iii) The USC Shares represent all of the issued and
outstanding capital stock of USC. The USC
Shares are owned by Seller and held by Seller, or by a nominee or custodian for
the sole and exclusive benefit of Seller, free and clear of all assignments,
pledges, security interests, liens, charges and encumbrances whatsoever.
(iv) USC has all necessary power and authority to
enter into this Agreement and to consummate the transaction contemplated hereby
without obtaining the consent or approval of any third party.
(v) All corporate action on the part of USC necessary
for authorization, execution and delivery of this Agreement and the performance
of all obligations of USC hereunder, has been taken. Upon execution and
delivery, this Agreement will be a valid and binding obligation of USC,
enforceable in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or other laws of general
application relating to or affecting enforcement of creditor's rights and by
general equitable principles.
(vi) The execution, delivery and performance of this
Agreement will not, with or without the giving of notice and/or the passage of
time, (i) violate any provision of law applicable to USC (ii) conflict with or
result in the breach of, termination of, or constitute a default under or
pursuant to any judgment, order, injunction, decree or ruling of any court or
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governmental authority by which USC is a party or by which USC is bound, or
(iii) conflict with or result in the breach of, or constitute a default under
any of the terms, conditions or provisions of any agreement or instrument or
other obligation to which USC is a party or by which USC's properties or assets
are subject.
(c) Purchaser hereby represents and warrants to Seller, as
follows:
(i) Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of California.
Purchaser has all necessary power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby without obtaining the consent
or approval of any third party.
(ii) All corporate action on the part of the
Purchaser necessary for authorization, execution and delivery of this Agreement
and the performance of all obligations of the Purchaser hereunder has been
taken. Upon execution and delivery, this Agreement will be a valid and binding
obligation of the Purchaser, enforceable in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
or other laws of general application relating to or affecting enforcement of
creditor's rights and by general equitable principles.
(iii) The execution, delivery and performance of this
Agreement will not, with or without the giving of notice and/or the passage of
time, (1) violate any provision of law applicable to Purchaser (2) conflict with
or result in the breach of, termination of, or constitute a default under or
pursuant to any judgment, order, injunction, decree or ruling of any court or
governmental authority by which Purchaser is a party or by which Purchaser is
bound, or (3) conflict with or result in the breach of, or constitute a default
under any of the terms, conditions or provisions of any agreement or instrument
or other obligation to which Purchaser is a party or by which Purchaser's
properties or assets are subject.
(iv) Purchaser (1) is a sophisticated investor and is
experienced in evaluating and investing in securities and acknowledges that it
is able to fend for itself, and by reason of its knowledge and experience in
financial and business matters, or by reason of the business and financial
experience of its financial advisor, if any, who is unaffiliated with and who is
not compensated, directly or indirectly, by the Seller, it is capable of
evaluating the merits and risks of the purchase of the USC Shares contemplated
hereunder and of protecting its own interests and/or (2) has preexisting
business relationships with USC and certain of their respective officers,
directors or controlling persons of a nature and duration that enables Purchaser
to be aware of the character, business acumen and financial circumstances of
such persons.
(v) Purchaser is acquiring the USC Shares solely for
investment for its own account and not with the view to, or for resale in
connection with, any distribution thereof. Purchaser understands that the USC
Shares have not been registered, under the Securities Act of 1933, as amended,
and that there is no market for such securities.
5. WAIVER OF ALL RIGHTS AND CLAIMS. Except as specifically stated in
this Agreement, Seller hereby waives all rights and claims against USC.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY SELLER. Seller shall indemnify, save
and hold Purchaser, its officers, directors, employees, advisors and
representatives (collectively, the "Purchaser Indemnified Parties") harmless and
will pay to any of the Purchaser Indemnified Parties if any of the Purchaser
Indemnified Parties shall at any time or from time to time suffer any damage,
liability, loss, cost, expense (including all reasonable attorneys' fees, court
costs, consulting fees, expert witness fees and expenses incurred in the
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investigation or defense of any of the same), claim or cause of action arising
out of or resulting from (i) any material untruth or inaccuracy in any
representation of Seller or USC or the material breach of any warranty of Seller
or USC in this Agreement; or (ii) any failure of Seller to duly perform or
observe any material term, provision, covenant or agreement on the part of
Seller to be performed or observed in this Agreement.
(b) INDEMNIFICATION. BY PURCHASER. Purchaser shall indemnify,
save and hold Seller, its officers, directors, employees, advisors and
representatives (collectively, the "Seller Indemnified Parties") harmless and
will pay to any of the Seller Indemnified Parties if any of the Seller
Indemnified Parties shall at any time or from time to time suffer any damage,
liability, loss, cost, expense (including all reasonable attorneys' fees, court
costs, consulting fees, expert witness fees and expenses incurred in the
investigation or defense of any of the same), claim or cause of action arising
out of or resulting from (i) any material untruth or inaccuracy in any
representation of Purchaser or the material breach of any warranty of Purchaser
in this Agreement; or (ii) any failure of Purchaser to duly perform or observe
any material term, provision, covenant or agreement on the part of Purchaser to
be performed or observed in this Agreement.
7. MISCELLANEOUS PROVISIONS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the Parties hereto with respect to the subject
matter hereof and supersedes all prior oral or written agreements, arrangements
and understandings with respect thereto.
(b) SURVIVAL. All representations, warranties and agreements
contained here shall survive the execution of this Agreement and the closing of
the transactions contemplated hereby.
(c) SUCCESSORS AND ASSIGNS. All of the terms, covenants and
conditions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
(d) CLOSING COSTS. Seller and Purchaser shall each bear their
respective costs of negotiating and completing this transaction, including
attorneys' fees.
(e) CONSTRUCTION. Seller and Purchaser agree that no party
shall be deemed to be the drafter of this Agreement and that in the event this
Agreement is ever construed by a court of law or equity, such court shall not
construe this Agreement or any provisions hereof against any party as the
drafter of the Agreement.
(f) AMENDMENTS. This Agreement shall not be modified except by
an instrument in writing signed by the parties hereto.
(g) NOTICE. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been given or
made if in writing and delivered personally, by international courier, sent by
registered or certified mail (postage prepaid, return receipt requested) or by
facsimile (with assurance of receipt in a manner customary for communications of
such type) to the parties at the following addresses:
(i) If to Purchaser, to:
PPOL, Inc.
11661 San Vicente Blvd., Suite 9O1
Los Angeles, CA 90049
Fax: 310-979-8519
Attention: Richard Izumi
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(ii) If to Seller, to:
K.K. Green Capital
Okada Building 1st Floor
1-19-8
Shibuya, Shibuya-ku Tokyo, JAPAN
Fax: +81-3-5467-3047
Attention: Toshio Okabe
{iii) If to USC, to:
K.K. U SERVICE
1-19-8 Shibuya, Shibuya-ku
Tokyo, JAPAN
Fax: +81-3-3-5467-3047
Attention: Toshio Okabe
or to such other persons or at such other addresses as shall be furnished by any
party by like notice to the others, and such notice or communication shall be
deemed to have been given or made as of the date so delivered, in the case of
hand delivery or facsimile transmission or five days after deposit in the mails,
if mailed. No change in any of such addresses shall be effective insofar as
notices under this Section 7(g) are concerned unless notice of such change shall
have been given to such other party hereto as provided in this Section 7(g).
(h) FURTHER ASSURANCES. From time to time, at the request and
expense of the requesting party, whether prior to, at or after the closing of
the transactions contemplated by this Agreement, and without further
consideration and without increasing any party's obligations hereunder, each
party agrees to and shall execute and deliver such further instruments and take
such other action as the requesting party may reasonably request in order to
effectuate the transactions set forth herein.
(i) NOTICES, ANNOUNCEMENTS AND COMMUNICATIONS. The Parties
hereby agree that, except, as may be required by applicable laws or stock
exchange rules and regulations, no press release or similar public announcement
or communication shall be made or caused to be made concerning the execution or
performance of this Agreement; provided that, Seller shall cause its
subsidiaries and affiliates to provide a consistent message and explanation
regarding the transaction contemplated under this Agreement to its customers,
suppliers and other business contacts.
(j) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without regard
to its conflicts of law rules; provided that, the provisions relating to the
unconditional consent by USC through written notification with a notarial date
stamp (KAKUTEI HIZUKE) shall be governed by and construed in accordance with the
laws of Japan, without regard to its conflict of law rules.
(k) HEADINGS. All of the section headings herein are inserted
for convenience only and shall have no meaning for purposes of this Agreement.
Recitals are hereby incorporated by reference in and form a party of this
Agreement.
(l) COUNTERPART FAX SIGNATURE. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument. This
Agreement may be executed by fax and a fax copy shall be treated as an original.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the date first above written.
"PURCHASER"
PPOL, INC.
/s/ Hisao Inoue
-------------------------------------
By: Hisao Inoue
Its Chief Executive Officer
"SELLER"
K.K. GREEN CAPITAL
/s/ Yoichi Yamauchi
-------------------------------------
By: Yoichi Yamauchi
Its Representative Director
"USC"
K.K. U SERVICE
/s/ Yoichi Yamauchi
-------------------------------------
By: Yoichi Yamauchi
Its Representative Director
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EXHIBIT A
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VALUE OF USC SHARES
JPY380,000,000