Exhibit 4.1
POOLING AGREEMENT
This Pooling Agreement (this "
Agreement ") is made and entered into as of September 18,
2005,
BY AND BETWEEN:
THE UNDERSIGNED SHAREHOLDERS
OF SE GLOBAL EQUITIES CORP . (to be renamed "Sun New Media Inc")
(collectively referred to as the " Shareholders " and
individually as " Shareholder ")
AND :
SE GLOBAL EQUITIES
CORP. (to be renamed "Sun
New Media Inc"), incorporated under the laws of Minnesota and
having an address at PO Box 297, 1142 S. Diamond Bar Blvd., Diamond
Bar, CA 91765
(" SE Global ")
AND :
FIDELITY TRANSFER
COMPANY , 1800 South West
Temple. Suite 301, Salt Lake City, UT, 84115
(hereinafter called the "
Trustee ")
WHEREAS
:
A. SE Global, Sun Media
Investment Holdings Ltd. (" Sun Media "), Sun New Media
Group Limited and Capital Alliance Group Inc. have entered into an
share purchase agreement, dated as of July 21, 2005 (the " Share
Agreement "), whereby on closing of the Share Agreement Sun
Media will own 78.23% of the issued and outstanding share capital
of SE Global as consideration for the Shares acquired;
B. The Shareholders are desirous
of placing in pool the shares owned by them in SE Global, being in
respect of each of the Shareholders the number of shares set
opposite its name in Schedule "A" to this Agreement, upon and
subject to the terms and conditions hereinafter more particularly
set out;
C. The Trustee is willing to act
as Trustee, upon the express terms and subject to the express
conditions of this Agreement.
NOW, THEREFORE, in consideration
of the foregoing and other good and valuable consideration, the
parties hereby agree as follows:
1. DEFINED TERMS . Capitalized terms used in
this Agreement and not otherwise defined herein shall have the
meanings ascribed to them in the Share Agreement.
2. APPOINTMENT OF TRUSTEE . The Shareholders
hereby appoint Fidelity Transfer Company the Trustee to act as
agent on their behalf pursuant to this Agreement, and the Trustee
hereby consents to its appointment in such capacity on the terms
and conditions of this Agreement.
3. DEPOSIT OF SHARES . On the closing date
of the Share Agreement (the " Closing Date "), the
Shareholders will cause SE Global to deliver to the Trustee (i) a
list (Appendix "A") containing the name, address and number of
shares of common stock of SE Global held by each Shareholder (the "
Pool Shareholder List ") being placed in the pool (together
the " Pooled Shares "), (ii) certificates representing the
Pooled Shares (" Share Certificates "), and (iii) any and
all other documents required from time to time by the Trustee to
effect transfers of the Pooled Shares in accordance with the terms
and conditions of this Agreement.
4. Release of THE POOLED Shares .
4.1 Authorized
Disbursements . The
Trustee is hereby authorized to disburse the Pooled Shares only as
follows:
(a) to the Shareholders in
accordance with Section 4.2 of this Agreement; or
(b) to the Shareholders upon
receipt of a written instruction signed by all the Shareholders;
or
(c) to the Shareholders in
accordance with a final and binding judgment rendered by a court of
competent jurisdiction and delivered to the Trustee together with a
certificate signed by SE Global (upon which certificate the Trustee
shall conclusively rely and act) certifying that said judgment
represents a final adjudication by a court of competent
jurisdiction.
4.2 Expiration of Pool;
Release of Pooled Shares . Unless released earlier pursuant to Section
4.1, the Trustee shall release and deliver the Pooled Shares on a
pro rata basis as set out in Appendix "B" to this
Agreement.
5. Certain Rights of the Stockholders
.
5.1 Rights attaching to Pooled
Shares . The Shareholders
are entitled to all rights attaching to the Pooled Shares while the
Pooled Shares are subject to the Agreement, including without
limitation, rights to receive all dividend payments and
distributions of capital, if any, from the Pooled Shares, and to
exercise all voting rights attached to the Pooled
Shares.
5.2 Alteration of
Capital . The parties
hereto agree that the provisions of this Agreement relating to the
Pooled Shares shall apply mutatis mutandis to any shares or
securities into which the Pooled Shares may be converted, changed,
reclassified, redivided, redesignated, subdivided or consolidated
and to any shares or securities of SE Global or of any successor or
continuing company or corporation of SE Global that may be received
by the registered holder of the Pooled Shares on a reorganization,
amalgamation, consolidation or merger, statutory or otherwise,
including the release calculation which will be adjusted so that
the proportion of the Pooled Shares to be released is unaffected by
the alteration of the capital of SE Global.
5.3 Transfer within the
Pool . No transfer of
Pooled Shares by any Shareholder to a third party (not being a
Shareholder) shall be effective and no application shall be made to
SE Global to register any such transfer until the proposed
transferee enters into an agreement with the other parties hereto
to the same effect as this Agreement. The Trustee shall not effect
a transfer of the Pooled Shares to a third party (not being a
Shareholder) unless the Trustee has received a copy of an
acknowledgment, attached as Appendix "C" to this Agreement,
executed by the person to whom the Pooled Shares are to be
transferred. Notwithstanding the execution of an acknowledgment by
such a person, the transferor shall not be released from its
obligations under this Agreement unless it has transferred all of
its Pooled Shares. The Shareholders shall be entitled to transfer
the Pooled Shares to other Shareholders without the aforesaid
requirements. In such event, the number of Pooled Shares to be
released to each Shareholder (as set out in "Appendix B" hereto)
shall be amended accordingly to reflect the said
transfer.
5.4 Amendment of This
Agreement . This
Agreement may be amended by the written consent of all the
Shareholders with Pooled Shares.
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6. Trustee .
6.1 Duties of
Trustee . The Trustee
shall treat the Pooled Shares with such degree of care as it treats
its own similar property. It is agreed that the duties of the
Trustee are only such as are herein specifically provided, and the
Trustee shall have no other duties, implied or otherwise. The
Trustee's duties are as a depository only, and the Trustee shall
incur no responsibility or liability whatsoever, except for its
wilful misconduct or gross negligence. Except where the terms of
this Agreement expressly refer thereto, the Trustee shall not be
bound in any way by any of the terms of the Share Agreement or any
other agreement to which one or more of SE Global, Sun Media,
Capital Alliance Group Inc., or the Shareholders are parties,
whether or not the Trustee has knowledge thereof, and the Trustee
shall not in any way be required to determine whether or not the
Share Agreement or any other agreement has been complied with by SE
Global, Sun Media, Capital Alliance Group Inc., the Shareholders or
any other party thereto. In the event that the Trustee shall be
uncertain as to any of its duties or rights hereunder or shall
receive instructions, claims or demands which, in its sole
judgment, are in conflict with any of the provisions of this
Agreement, it shall be entitled to refrain from taking any action
other than to keep safely all Pooled Shares held in the Pool until
it shall be directed otherwise pursuant to a written notice from
and executed by SE Global, and the Trustee shall not be responsible
or liable for any damages while waiting for such written notice.
This Agreement shall not create any fiduciary duty of the Trustee
to SE Global or any other person or entity whatsoever nor
disqualify the Trustee from representing any of such parties as
transfer agent and/or registrar.
6.2 Reliance by Trustee on
Written Notices . The
Trustee may conclusively rely and shall be fully authorized and
protected in relying upon any written notice, direction,
instruction, demand, certificate, advice, opinion or document which
it, in good faith, believes to be genuine. Set forth in Schedule
6.2 hereto is a list of the names of the persons authorized to act
for SE Global and the signatures of all Shareholders under this
Agreement. The Trustee may conclusively rely on and shall be
authorized and fully protected in acting upon the written,
facsimile or electronically delivered instructions of SE Global and
the Shareholders.
6.3 Risk to Trustee
. In no event shall the Trustee be
liable (i) for any consequential, punitive or special damages or
(ii) for an amount in excess of the value of the Pooled Shares,
valued as of the date of deposit. The Trustee shall not incur any
liability for not performing any act or fulfilling any duty,
obligation or responsibility hereunder by reason of any occurrence
beyond the control of the Trustee (including but not limited to any
act or provision of any present or future law or regulation or
governmental authority, any act of God or war, or the
unavailability of the Federal Reserve Bank wire or telex or other
wire or communication facility).
6.4 No Investigation by
Trustee . The Trustee
shall not be required or bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, entitlement,
order, approval or other paper or document.
6.5 Trustee's Execution of
Power . The Trustee may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys,
custodians, or nominees appointed with due care, and shall not be
responsible or liable for the acts or omissions of any agent,
attorney, custodian or nominee so appointed except for acts that
constitute wilful misconduct or gross negligence.
6.6 Legal
Proceedings .
(a) The Trustee shall not be
required to institute legal proceedings of any kind.
(b) If at any time the Trustee is
served with any judicial or administrative order, judgment, decree,
writ or other form of judicial or administrative process which in
any way affects all or any portion of the Pooled Shares (including
but not limited to orders of attachment or garnishment or other
forms of levies or injunctions or stays relating to the transfer of
all or any portion of the Pooled Shares), the Trustee is authorized
to comply therewith in any manner as it or legal counsel of its own
choosing deems appropriate; and if the Trustee complies in good
faith with any such judicial or administrative order, judgment,
decree, writ or other form of judicial or administrative process,
the Trustee shall not be liable to any of the parties hereto or to
any other person or entity even though such order, judgment,
decree, writ or process may be subsequently modified or vacated or
otherwise determined
