Attached files
| file | filename |
|---|---|
| 10-Q - Ominto, Inc. | v186369_10q.htm |
| EX-3.1 - Ominto, Inc. | v186369_ex3-1.htm |
| EX-32.1 - Ominto, Inc. | v186369_ex32-1.htm |
| EX-32.2 - Ominto, Inc. | v186369_ex32-2.htm |
| EX-31.2 - Ominto, Inc. | v186369_ex31-2.htm |
| EX-31.1 - Ominto, Inc. | v186369_ex31-1.htm |
EXHIBIT
10.1
Agreement
between the Company and Zen Holding Group Limited dated May 24,
2010
AGREEMENT
This AGREEMENT (this “Agreement”)
is made as of May 24, 2010 (the “Effective Date”), by and between MediaNet Group
Technologies, Inc., a Nevada corporation (the “Company”), and ZEN Holding Group
Limited, a British Virgin Islands company (“Zen”).
RECITALS
WHEREAS, pursuant to that
certain Amended and Restated Agreement and Plan of Merger (the “Merger
Agreement”), dated as of September 25, 2009, by and among the Company, CG
Holdings Limited (“CG”) and MediaNet Merger Sub, Inc. (“Merger Sub”), Merger Sub
merged with and into CG (the “Merger”), with CG surviving the Merger as a
wholly-owned subsidiary of the Company;
WHEREAS, in connection with
the Merger, Zen, as the sole shareholder of CG, was issued a total of 5 million
shares (the “Zen Preferred Shares”) of the Company’s Series A Convertible
Preferred Stock (the “Preferred Stock”);
WHEREAS, each share of
Preferred Stock is convertible into approximately 55.51 shares of the Company’s
common stock (the “Common Stock”) and, accordingly, as of Effective Date, Zen
owns of record approximately 90% of the outstanding Common Stock on an
as-converted basis;
WHEREAS, the Company and Mr.
Michael Hansen had previously expected that Mr. Hansen and the other investors
in DubLi.com, LLC (such other investors are defined as the “DubLi.com
Investors”) would receive from Zen certain shares of “restricted” Common
Stock;
WHEREAS, with the acceleration
of the merger closing and merger restructuring, the DubLi.com Investors were
expected to receive from Zen 62,679,116 shares of restricted Common Stock upon
the Preferred Stock Conversion;
WHEREAS, since Zen has not
transferred and does not intend to transfer Common Stock to the DubLi.com
Investors as previously anticipated, Zen has agreed to return to the Company
1,129,057 shares of Preferred Stock (the “DubLi.com, LLC Shares”) which are
convertible into 62,679,116 shares of Common Stock;
WHEREAS, Zen has also agreed
to return to the Company for future use in the Company’s employee benefit plans
12,876 shares of the Preferred Shares (the “Employee Shares” and, together with
the DubLi.com LLC Shares, the “Adjustment Shares”), representing 714,817 shares
of Common Stock on as as-converted basis, which the parties had anticipated that
Zen would distribute to various employees (the “Lenox Employees”) of Lenox
Resources, LLC, a wholly-owned subsidiary of the Company, and its
subsidiaries;
NOW, THEREFORE, in
consideration of the foregoing and the mutual promises contained in this
Agreement, and intending to be legally bound hereby, the parties agree as
follows:
AGREEMENT
1. Return and Cancellation of
Shares. Effective as 5:00 PM EST on the Effective Date and
without any further action on the part of the parties hereto, Zen hereby assigns
and transfers to the Company, and the Company hereby purchases, all of Zen’s
rights, title, interests and claims in and to the Adjustment
Shares. As of the Effective Date, the Adjustment Shares shall be
automatically canceled by the Company and the Company shall record the
cancellation of the Adjustment Shares on the books and records of the Company as
of such date.
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2. Representations, Warranties and
Covenants of Zen
(a) Zen
hereby represents and warrants to and covenants with the Company as of the
Effective Date as follows:
(1) Right to Transfer.
Zen has the absolute and unrestricted right, power and authority to transfer and
assign the Adjustment Shares to the Company pursuant to this
Agreement. Other than filings required pursuant to Section 13(d) and
Section 16(b) of the Securities Exchange Act of 1934, as amended, no consent,
approval or authorization of or notice to any third party that has not been
obtained or given is necessary in connection with the transfer, assignment or
delivery of the Adjustment Shares. Zen is the sole record holder of
the Adjustment Shares and has good and marketable title to the Adjustment
Shares, free and clear of any and all covenants, conditions, restrictions,
liens, security interests and claims.
(2) Validity of
Agreement. This Agreement constitutes a legally valid and
binding obligation of Zen and is enforceable against Zen in accordance with its
terms, except to the extent that enforcement thereof may be limited by or
subject to applicable bankruptcy, insolvency, reorganization, moratorium, or
other similar laws now or hereafter in effect affecting creditors' rights
generally and by general principles of equity (regardless of whether enforcement
is sought in equity or at law).
(3) No Assumed
Liabilities. By acquiring the Adjustment Shares, the Company
is not assuming any direct or indirect liability, indebtedness, claim, loss,
damage, deficiency, obligation, penalty, responsibility, cost or expense, fixed
or unfixed, choate or inchoate, liquidated or unliquidated, secured or
unsecured, accrued, absolute, known or unknown, contingent or otherwise of Zen
or any of its direct or indirect shareholders, including MBD Investment Ltd.,
Michael Hansen or Michel Saouma (the “Zen Affiliates’).
(b) Investment
Representations. Zen hereby represents and warrants to the
Company as of the date of the closing of the Merger and as of the Effective Date
as follows:
(1) Zen
must bear the economic risk of the acquisition of the Zen Preferred Shares for
the foreseeable future because the offer and sale of the Zen Preferred Shares
are not registered under the Securities Act of 1933, as amended (the “Securities
Act”), or any applicable state securities laws. Zen understands that
the offering and sale of the Zen Preferred Shares is intended to be exempt from
registration under the Securities Act, by virtue of Section 4(2) and/or the
provisions of Regulation D promulgated there under, based, in part, upon the
representations, warranties and agreements of Zen contained in this
Agreement.
(2) Neither
the Securities and Exchange Commission (the “SEC”) nor any state securities
commission has approved any of the Zen Preferred Shares or passed upon or
endorsed the merits of the offering of the Zen Preferred Shares by the
Company.
(3) Zen
is acquiring the Zen Preferred Shares solely for Zen’s own account for
investment and not with a view to resale or distribution thereof, in whole or in
part. Zen has no contract, undertaking, agreement or arrangement,
formal or informal, oral or written, with any person to sell or transfer all or
any part of the Zen Preferred Shares, and Zen has no plans to enter into any
such contract, undertaking, agreement or arrangement.
(4) Zen
is aware that the Zen Preferred Shares and the shares of common stock into which
the Zen Preferred Shares are convertible (the “Conversion Shares”) are
“restricted securities,” and Zen must bear the substantial economic risks of the
investment in the Zen Preferred Shares and the Conversion Shares indefinitely
because none of the Zen Preferred Shares nor the Conversion Shares may be sold,
hypothecated or otherwise disposed of unless such transfer is subsequently
registered under the Securities Act and applicable state securities laws or
unless counsel (satisfactory to the Company) renders an opinion (satisfactory to
the Company) that registration under the Securities Act and any applicable state
securities laws is not required. The Company has not agreed to make
available an exemption from the registration requirements of the Securities Act
for resale of any of the Zen Preferred Shares or the Conversion Shares and,
except as provided in Section 5 below, is under no obligation to register any of
the Zen Preferred Shares or the Conversion Shares under the Securities Act or
any state securities laws.
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(5) Restrictive
legends will be placed on the certificates representing the Conversion Shares to
the effect that they have not been registered under the Securities Act or
applicable state securities laws and neither the Zen Preferred Shares nor the
Conversion Shares may be transferred of record except in accordance
therewith. Zen understands that the Conversion Shares shall bear a
restrictive legend in, or substantially in, the form set forth
below:
THE
SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”) OR
UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD, CONVEYED,
PLEDGED, GIFTED, ASSIGNED, ENCUMBERED OR OTHERWISE DISPOSED OF UNLESS REGISTERED
UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO
AVAILABLE EXEMPTIONS FROM REGISTRATION FROM THE SECURITIES ACT AND THE RULES
PROMULGATED THEREUNDER AND UNDER APPLICABLE STATE SECURITIES LAWS, PROVIDED THAT
THE HOLDER DELIVERS TO THE COMPANY AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO THE COMPANY CONFIRMING THE AVAILABILITY OF SUCH EXEMPTION. HOLDERS SHOULD BE
AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT
FOR AN INDEFINITE PERIOD OF TIME.
(6) Zen
meets the requirements of at least one of the suitability standards for an
“accredited investor” as defined in Rule 501(a) of Regulation D under the
Securities Act because it is an entity, not formed for the specific purpose of
acquiring the Zen Preferred Shares, with total assets in excess of
$5,000,000. Zen agrees to furnish any additional information
requested by the Company to assure compliance with applicable federal and state
securities laws in connection with the purchase and sale of the Zen Preferred
Shares.
(7) Zen
has adequate means of providing for its current financial needs and possible
personal contingencies and has no need for liquidity in its investment in the
Zen Preferred Shares.
(8) Zen
is able to bear the economic risks inherent in its investment in the Zen
Preferred Shares. Zen further acknowledges that an important
consideration bearing on its ability to bear the economic risk of its
acquisition of the Zen Preferred Shares is whether it can afford a complete loss
of its entire investment in the Zen Preferred Shares, and that Zen can afford a
complete loss of its entire investment in the Zen Preferred Shares.
(9) Zen
has such knowledge and experience in business, financial and investment matters
so that Zen is capable of evaluating the merits and risks of an investment in
the Zen Preferred Shares and the Conversion Shares.
(10) Zen
has had a reasonable opportunity to ask questions of and receive answers from a
person or persons acting on behalf of the Company concerning the Company and the
offering of the Zen Preferred Shares and all such questions have been answered
to the full satisfaction of Zen.
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(11) Zen
is not relying upon any information, representation or warranty by the Company
or any of its agents in determining to consummate the transactions contemplated
by this Agreement and is relying on Zen’s own examination of the Company and the
terms of this Agreement, including the merits and risks involved, in making its
investment decision.
(12) Zen
represents and warrants that the information contained in the Company’s
Quarterly Report on Form 10-Q for the quarter ended March 31, 2010 related to
Zen’s ownership of the Company’s Preferred Stock and Common Stock is true,
complete and accurate.
(13) An
investment in the Company is highly speculative and involves a risk of loss of
the entire investment and no assurance can be given of any income from such
investment. ZEN
HEREBY ACKNOWLEDGES AND CONFIRMS THAT IT HAS CAREFULLY CONSIDERED THE RISKS AND
UNCERTAINTIES INVOLVED IN INVESTING IN THE ZEN PREFERRED SHARES BEFORE MAKING AN
INVESTMENT DECISION TO PURCHASE THE SECURITIES.
(c) Zen
hereby agrees that all of the Conversion Shares shall be issued by the Company
directly to Zen and Zen shall not cause or seek to cause the Company to issue
the Conversion Shares to any person or designee other than Zen.
3. Indemnification. Zen
shall indemnify, defend and hold harmless the Company and the Company’s
directors, officers, employees, agents, affiliates and assigns (collectively,
the “Company Indemnified Parties”) from, against and in respect of any claim,
demand, judgment, loss, liability, action, proceeding, assessment, penalty, fee,
fine, cost, damage or expense (including reasonable fees, disbursements and
expenses of attorneys, accountants and other professional advisors) which any of
the Company Indemnified Parties shall suffer, sustain or become subject to by
virtue of or which arise out of or result from any breach of, or inaccuracy in,
the representations and warranties of Zen set forth in this
Agreement.
4. Outstanding DubLi
Interests. The parties acknowledge that it is the current
intent, but not the obligation, of the Company to commence a tender offer (the
“Tender Offer”) to purchase from the DubLi.com Investors all of their right,
title and interest in DubLi.com, LLC using shares of Common Stock as
consideration following the Company’s registration with the SEC of the issuance
in the Tender Offer of shares of the Common Stock to the holders of the
Outstanding DubLi Interests (the “Tender Offer Registration”). Zen
shall and shall cause the Zen Affiliates to use their respective reasonable
business efforts to, as may be requested by the Company from time to time,
assist the Company complete the Tender Offer and the Tender Offer Registration,
which assistance is expected to include, but not be limited to, the provision to
the Company of the name and contact information of each such holder of
Outstanding DubLi Interests.
5. Registered Spin Off
Transaction. Upon the written request of Zen (the
“Registration Request”) and provided that Zen provides the Company with such
information regarding the distribution proposed by Zen as the Company may
reasonably request in writing, the Company shall use its commercially reasonable
efforts to, as soon as reasonably practicable following receipt of the
Registration Request, prepare and file with the SEC a registration statement
(the “Registration Statement”) in order to register with the SEC the
distribution by Zen of the Conversion Shares to the shareholders of the Zen on a
pro rata basis (the “Zen Share Spin Off”). The Company shall use its
reasonable efforts to cause such Registration Statement to be declared effective
as soon as reasonably practicable following the filing of the Registration
Statement. Notwithstanding the foregoing, the Company shall not be obligated to
file any Registration Statement under this Section 5 at any time that the
Company determines, on the advice of counsel, that the Zen Share Spin Off can be
accomplished without registration pursuant to an exemption from the registration
requirements of the Securities Act (a “Registration Exemption”). Zen
hereby agrees that, unless the Company consents otherwise in writing in its sole
discretion, regardless of whether or not a Registration Exemption is available
at such time, Zen shall not distribute any shares in connection with a Zen Share
Spin Off until the Company has completed the Tender Offer and shall further use
its reasonable best efforts to seek to complete a Zen Share Spin Off on or about
the same date as the date of the closing of the Tender Offer.
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6. Registration of Issuance of Employee
Shares. As soon as reasonably practicable, the Company intends
to use its commercially reasonable efforts to prepare and file with the SEC a
registration statement on Form S-8 (the “Form S-8 Registration Statement”) in
order to register with the SEC the issuance of the Employee Shares to the Lenox
Employees.
7. Miscellaneous.
(a) Counterparts. This
Agreement may be executed in two or more counterparts by facsimile or otherwise,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(b) Complete
Agreement. This Agreement constitutes the complete
agreement of the parties with respect to the subject matter referred to herein
and shall supersede all prior or contemporaneous negotiations, promises,
covenants, agreements and representations of every kind or nature whatsoever
with respect thereto (all of which have become merged and finally integrated
into this Agreement), except as provided herein. Any modifications and
amendments to this Agreement must be in writing and executed by all of the
parties.
(c) Severability of
Provisions. It is the desire and intent of the Parties
hereto that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction. The
invalidity or unenforceability of any particular provision of this Agreement
shall not affect the other provisions hereof, which shall continue in full force
and effect.
(d) Further
Assurances. The Parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
(e) Headings. The titles,
subtitles and headings used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
(f) Governing
Law. This Agreement shall be governed by the internal laws of
the State of Florida as to all matters, including but not limited to matters of
validity, construction, effect and performance, without regard to conflicts of
laws principles.
(g) Notices. Unless
notice to the contrary is given to the Company, or Zen, as the case may be, all
notices, requests, demands and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given when
telecopied or by overnight receipted courier service to the addresses set forth
on the signature page hereto.
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(h) Consent to Jurisdiction:
Service of Process; Prevailing Party. The Company and Zen
hereby irrevocably submit to the jurisdiction of the state or federal courts
located in Palm Beach County, Florida in connection with any suit, action or
other proceeding arising out of or relating to this Agreement and the
transactions contemplated hereby, and hereby agree not to assert, by way of
motion, as a defense, or otherwise in any such suit, action or proceeding that
the suit, action or proceeding is brought in an inconvenient forum, that the
venue of the suit, action or proceeding is improper or that this Agreement or
the subject matter hereof may not be enforced by such courts. Each
party shall be responsible for its own costs and expenses of any such suit,
action or proceeding; provided, however, that the
non-prevailing party shall reimburse the prevailing party’s actual reasonable
costs and expenses (including, without limitation, attorneys’ fees) incurred in
connection with such suit, action or proceeding or any effort to
enforce this Agreement.
(i) Waiver of Jury
Trial. ZEN AND THE COMPANY HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO,
THE SUBJECT MATTER OF THIS NOTE. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY MADE BY ZEN AND THE COMPANY.
(j) No Third Party
Beneficiaries. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person or
entity any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
IN WITNESS WHEREOF, the
parties hereto have made and entered into this Agreement as of the Effective
Date.
| THE “COMPANY” | |||
| MEDIANET GROUP TECHNOLOGIES, INC. | |||
|
|
By:
|
||
| Name: Andreas Kusche | |||
| Title: General Counsel | |||
|
Address:
5200
Town Center Circle, Suite 601
Boca Raton, FL 33486
|
|||
| ZEN | |||
| ZEN HOLDING GROUP LIMITED | |||
| By: | |||
| Name: | |||
| Title: | |||
| Address: | |||
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