Exhibit 10.2
RIGHT OF FIRST REFUSAL
THIS RIGHT OF
FIRST REFUSAL AGREEMENT (the
“ Agreement
”) is made as of August 24, 2007, by and
among IA Global, Inc.,
a Delaware corporation (the “
Company ”), and Erik Gain and Peter
Wilson (the “ Sellers
”), individual citizens of the United States
and Australia, respectively, related to their ownership of
GPlus Media KK. (“ GPlus
”), a corporation registered and existing
under the laws of Japan.
WHEREAS ,
pursuant to the Share Exchange Agreement, dated as
of August 24, 2007, the Company will acquire 250 ordinary shares
of GPlus (the
“ GPlus Ordinary Shares
”) which GPlus
Ordinary Shares equal to 25.0% of the
outstanding equity interests of GPlus on a fully-diluted basis, and
GPlus will acquire 3,885,713 shares of the Company’s common
stock, par value US$.001 per share (the “
IAO Common Stock ”); and
NOW, THEREFORE , in consideration of the mutual
promises herein contained, and other consideration, the receipt and
adequacy of which hereby is acknowledged, the parties hereto agree
as follows:
1.
Certain Definitions
. For purposes of this
Agreement, the following terms have the following
meanings:
A. “ Affiliate ” of a Person
means any stockholder, partner, member or other equity owner of
such Person or any other Person directly or indirectly controlling,
controlled by or under common control with such Person.
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B.
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“ Days ” means calendar
days.
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C. “
Offered Price ” means the
bona fide cash price or other consideration for which the Sellers
proposes to Transfer the IA Common Stock or the Company proposes to
Transfer the GPlus Ordinary Shares.
D. “ Offered Stock ” means all
the common stock proposed to be transferred by the Seller or the
Company.
E. “ Person ” means an
individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision
thereof.
F. “ Right of First Refusal ”
means the right of first refusal provided to the Company in Section
2 of this Agreement or Seller in Section 3 of this
Agreement.
G. “ Transfer ” means and
includes any sale, assignment, encumbrance, hypothecation, pledge,
conveyance in trust, gift, transfer by bequest, devise or descent,
or other transfer or disposition of any kind, including but not
limited to transfers to receivers, levying creditors, trustees or
receivers in bankruptcy proceedings or general assignees for the
benefit of creditors, whether voluntary or by operation of law,
directly or indirectly, except:
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(1) any transfers of common stock by Sellers to
Seller’s family, or to a trust or trusts for the exclusive
benefit of Sellers or Seller’s family; provided, that , in all cases, the
transferee or other recipient executes a counterpart copy of this
Agreement and becomes bound thereby as was the Seller;
(2) any bona fide gift, provided that Seller shall inform the
Company of such gift prior to effecting it and
provided that the
pledgee, transferee or donee or other recipient executes a
counterpart copy of this Agreement and becomes bound thereby as was
the Seller;
(3) by operation of law;
(4) any transfer by the Company or the Sellers
to any of their Affiliates; or
(5) any transfer to the Company or the Sellers
pursuant to the terms of this Agreement.
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2.
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Company’s Right of First
Refusal.
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A. Exercise by
the Company . The Company has the Right
of First Refusal to purchase all or any part of the IAO Common
Stock, if the Company gives written notice of the exercise of such
right to the Seller within 30 days (the “
Company Refusal Period ”) after the
last date on which the Notice of Transfer, a form of which is
attached hereto as Exhibit A
(“ IAO Common
Stock Transfer Notice ”) is,
pursuant to Section 5(A) hereof, deemed to have been delivered by
Sellers to the Company. Within five (5) days after the expiration
of the Company Refusal Period (the “ Company Confirmation Notice
Period ”), the Sellers will
give written notice to the Company specifying the number of shares
of Offered Stock purchased by the Company (the “
Company Confirmation Notice
”). The Company Confirmation Notice shall also
specify the number of shares not purchased, if any, under this
section.
B. Purchase
Price . The purchase price for the
Offered Stock to be purchased by the Company exercising its Right
of First Refusal under this Agreement will be the Offered Price,
and will be payable as set forth in Section 2(C) hereof. If
the Offered Price includes consideration other than cash, the cash
equivalent value of the non-cash consideration will be determined
by the Board of Directors of the Company in good faith, which
determination will be binding upon the Company and the Sellers,
absent fraud or error.
C. Payment . Payment of the purchase
price for the Offered Stock purchased by the Company exercising its
Right of First Refusal will be made within ten (10) days
after the end of the Company Confirmation Notice Period.
Payment of the purchase price will be made, at the option of the
Company, (i) in cash (by check), (ii) by cancellation of
all or a portion of any outstanding indebtedness of the Seller to
the Company, or (iii) by any combination of the
foregoing.
D. Rights as a
Shareholder . If the Company exercises
its Right of First Refusal to purchase the Offered Stock, then,
upon the date that the notice of such exercise by the Company is
deemed delivered to the Sellers pursuant to this Section 2,
the Sellers will have no further rights as a holder of the Offered
Stock, except the right to receive payment for the Offered Stock
from the Company, as the case may be, in accordance with the terms
of this Agreement, and the Sellers will
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forthwith cause all certificate(s) evidencing such
Offered Stock to be surrendered for Transfer to the
Company.
E. Seller’s Right To Transfer . If
the Company has not elected to purchase all or any portion of the
Offered Stock, then, with respect to that portion of Offered Stock
that will not be purchased by the Company pursuant to Section 2
hereof, the Right of First Refusal shall not apply to such
Transfer, and the Sellers may Transfer such portion of the Offered
Stock, which the Company has not elected to purchase to any person
named as a purchaser or other Transferee in the IAO Common Stock
Transfer Notice, at the Offered Price or at a higher price;
provided further that such Transfer (i) is consummated within 60 days after the
end of the Company Confirmation Notice Period, (ii) is on
terms no more favorable than the terms proposed in the IAO Common
Stock Transfer Notice, and (iii) is in accordance with all the
terms of this Agreement. If the Offered Stock is not so Transferred
during such 60 day period, then the Sellers may not Transfer any of
such Offered Stock without complying again in full with the
provisions of this Agreement.
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3.
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Seller’s Right of First
Refusal.
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A. Exercise by
the Seller . Sellers have the Right of
First Refusal to purchase all or any part of the GPlus Ordinary
Shares, if the Sellers give written notice of the exercise of such
right to the Sellers within 30 days (the “
Seller Refusal Period
”) after the last date on which the Notice of
Transfer, a form of which is attached hereto as
Exhibit B (“ GPlus Ordinary Shares
Transfer Notice ”) is, pursuant
to Section 5(A) hereof, deemed to have been delivered to Sellers by
the Company. Within five (5) days after the expiration of Sellers
Refusal Period (the “ Seller Confirmatio
