UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
Amendment #1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
K
inerja
P
ay
C
orp.
(Exact Name of
Registrant as Specified in its Charter)
Delaware | 3674 | 42-1771817 |
(State or other Jurisdiction of Incorporation) | (Primary Standard Industrial Classification Code) | (IRS Employer Identification No.) |
Jl. Multatuli, No.8A, Medan, 20151 Indonesia,
Ph
one: +62-819-6016-168
(Address and Telephone Number of Registrant's Principal
Executive Offices and Principal Place of Business)
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective. If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.
xIf this Form is filed to register additional securities for an Offering pursuant to Rule 462(b) under the Securities Act of 1933, please check the following box and list the Securities Act registration Statement number of the earlier effective registration statement for the same Offering.
¨If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same Offering.
¨If delivery of the Prospectus is expected to be made pursuant to Rule 434, please check the following box.
¨Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ¨ | Accelerated filer | ¨ |
Non-accelerated filer | ¨ | Smaller reporting company | x |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this Prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission becomes effective. This Prospectus is not an offer to
sell these securities and we are not soliciting offers to buy these securities in any
state where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS
SUBJECT TO COMPLETION ON JULY __, 2016
KINERJAPAY CORP.
1,450,000 SHARES OF COMMON STOCK
The selling shareholders (the "Selling Security Holders") named in this prospectus (the "Prospectus") are offering all of the shares of common stock (the "Common Stock") of KinerjaPay Corp. f/k/a Solarflex Corp., a Delaware corporation ("Kinerjapay," the "Company" or the "Registrant") offered through this Prospectus. We are filing the registration statement (the "Registration Statement"), of which this Prospectus forms a part, in order to permit the Selling Security Holders to sell their restricted shares of Common Stock issued by the Registrant in a series of transactions exempt from registration under the Securities Act of 1933, as amended (the "Act") pursuant to the provisions of Regulation D and Regulation S promulgated by the United States Securities and Exchange Commission (the "SEC") under the Act. The Common Stock to be sold by the Selling Security Holders as provided in the "Selling Security Holders section of this Prospectus have already been issued.
Reference is made to the disclosure under "Selling Security Holders" and "Description of Securities to be Registered" below. The outstanding shares of Common Stock described above were previously issued in private placement transactions, including unit offerings, under Regulation D and Regulation S completed prior to the filing of the Registration Statement of which this Prospectus forms a part. We will not receive any proceeds from the sale of the Common Stock covered by this Prospectus in connection with the offering (the "Offering").
Our Common Stock is subject to quotation on OTCQB Market under the symbol KPAY. On July 6, 2016, the last reported sales price for our Common Stock was $0.55 per share. We urge prospective purchasers of our Common Stock to obtain current information about the market prices of our Common Stock. The prices at which the Selling Security Holders may sell the shares of Common Stock in this Offering will be determined by the prevailing market price for the shares of Common Stock or in negotiated transactions.
Our independent registered public accounting firm has expressed substantial doubt as to our ability to continue as a going concern.
Investing in our Common Stock involves a high degree of risk. See "Risk Factors" to read about factors you should consider before buying shares of our Common Stock.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Date of This Prospectus is: July __, 2016
Please read this Prospectus carefully and in its entirety. This Prospectus contains disclosure regarding our business, our financial condition and results of operations and risk factors related to our business and our Common Stock, among other material disclosure items. We have prepared this Prospectus so that you will have the information necessary to make an informed investment decision.
You should rely only on information contained in this Prospectus. We have not authorized any other person to provide you with different information. This Prospectus is not an offer to sell, nor is it seeking an offer to buy, these securities in any state where the offer or sale is not permitted. The information in this Prospectus is complete and accurate as of the date on the front cover, but the information may have changed since that date.
The Registration Statement containing this Prospectus, including the exhibits to the Registration Statement, provides additional information about our Company and the Common Stock offered under this Prospectus. The Registration Statement, including the exhibits and the documents incorporated herein by reference, can be read on the Securities and Exchange Commission website or at the Securities and Exchange Commission offices mentioned under the heading "Where You Can Find More Information."
This summary highlights selected information contained
elsewhere in this Prospectus. This summary does not contain all the information
that you should consider before investing in the Common Stock. You should
carefully read the entire Prospectus, including "Risk Factors", "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
the Financial Statements, before making an investment decision. In this
Prospectus, the terms "KinerjaPay" "Company," "Registrant," "we,"
"us" and "our" refer to KinerjaPay Corp., a Delaware corporation.
Business Plan
The Company was incorporated in Delaware on February 12, 2010 under the
name Solarflex Corp. for the purpose of developing, manufacturing and
selling a solar photovoltaic element, a device that converts light into
electrical flow (also known as a photovoltaic cell) based on certain
proprietary technology to improve solar energy conversion and
provide energy at a lower cost.
We did not generate any revenues from the sale of any solar
photovoltaic element, nor did we successfully manufacturer or construct a
working prototype, either on our own or through third-party manufacturers. We
determined during the 4th quarter of 2015 to evaluate potential business
opportunities.
On December 1, 2015, the Company entered into a
license agreement (the "License Agreement") with PT Kinerja Indonesia, an
entity organized under the laws of Indonesia and controlled by Mr. Ng ("PT
Kinerja"), for an
exclusive, world-wide license to use and commercially exploit certain
technology and intellectual property (the "KinerjaPay IP") and its website,
KinerjaPay.com. Pursuant to the License Agreement, the Company was granted
the exclusive, world-wide rights to the KinerjaPay IP, an e-commerce
portal.
In connection with the License Agreement, we
agreed to: (i) change the name of the Company from Solarflex Corp to
KinerjaPay Corp.; (ii) implement a reverse split of our common stock on a
one-for-thirty (1:30) basis; and raise equity capital in the minimum
offering amount of $500,000 and the maximum offering amount of $2,500,000
through the offering of units at a price of $0.50, each Unit, each
consisting of 1 share of common stock (post-reverse) and 1 class A warrant
exercisable for a period of 24 months to purchase 1 additional share of
common stock at $1.00. The Unit Offering was made only to
"accredited investors" who are not U.S. Persons in reliance upon Regulation
S promulgated by the SEC under the Securities Act of 1933, as amended (the
"Act"). On January 20, 2016, the Company closed the Minimum Offering after
it received subscription proceeds in excess of $500,000. To date, we have
raised $905,000 under the Unit Offering, while the Unit Offering is
continuing.
As of March 10, 2016, the Company's name change to KinerjaPay Corp.
and its one-for-thirty (1:30) reverse stock split became effective and all
Share information give retroactive effect to the reverse split. The Company's
shares of common stock are subject to quotation on the OTCQB market under
the symbol "KPAY."
Our principal products and services are: (i) our
electronic payment service (the "EPS"); and (ii) our virtual marketplace
(the "Marketplace") both of which
are available on our portal under the domain name KinerjaPay.com (the
"Portal").
Our Android-based mobile app not only
serves as an extension of desktop or laptop access to our website, but has additional
in-app services that cater to mobile users, such as social engagement and
digital entertainment (the "Mobile App").
We believe that in
combining our EPS function
("PAY") with the ability to buy and sell products via our
virtual marketplace ("Buy") enhanced by a
gamification component ("Play")
our customers and merchants are enticed to return more often and increase their loyalty to our
services.
Indonesia, the world's fourth most-populous country, having a population
estimated to be 255 million people, is rapidly becoming the major economic
power in the Southeast Asia region. Over 50% of its population is below the
age of 30, and as a result, we believe that the young Indonesian population is highly adaptive to
new technology. The rise of
cheap Smartphones and tablets that sell for less than US$100 is rapidly
broadening internet access and pushing the nascent Indonesian e-commerce
market toward a critical point in terms of scale and profitability, in spite
of significant challenges due to poor infrastructure and payment systems. The number of internet users is excepted to double to
125 million by 2017 and Smartphone ownership is to rise from 20 per cent to
52 per cent in the same period,
the
highest percentage compared to other Southeast Asian countries,
according to Redwing, an advisory group.
Our Kinerja.com platform was launched in
February 2015 but has already achieve significant market
acceptance evidenced by more than 13,000 users/customers and
more than 78,000 e-commerce transactions during 2015.
Page 4
Notwithstanding
our belief that our Portal represents a significant advance as compared to other
Indonesian portals, there are a number of potential difficulties that we might face,
including the following:
Competitors may develop
alternatives that render our Portal services redundant or
unnecessary;
To date, we have raised $905,000 in equity under the Unit Offering
and we may be expected to require up to an additional $1,6 million
in capital during the next 12 months to
fully implement
our business plan and fund our operations.
Summary of Risk Factors
This offering involves substantial risk. Our ability to
execute our business strategy is also subject to certain risks. The risks described
under the heading "Risk Factors" included elsewhere in this prospectus may
cause us not to realize the full benefits of our business plan and strategy
or may cause us to be unable to successfully execute all or part of our
strategy. Some of the most significant challenges and risks include the
following:
Our
Auditor has expressed substantial
doubt as to our ability to continue as a going concern.
Before you invest in our common stock, you should
carefully consider all the information in this prospectus, including matters
set forth under the heading "Risk Factors."
Where You Can Find Us
The Company's principal executive office and mailing
address is at Jl. Multatuli, No.8A, Medan, 20151; Indonesia,
Phone: +62-819-6016-168
We may not obtain and maintain sufficient protection of
our intellectual property;
Our
proprietary technology may be shown to have characteristics that may render
it insufficient for our business;
Our
Portal may not become widely accepted by consumers and merchants; and
Strict, new government regulations and inappropriate e-commerce policies,
especially in an emerging economy such as Indonesia, may hinder the growth
of the e-commerce market; and
We may not be able to raise sufficient additional funds
to fully implement our business plan and grow our business.
Our limited operating history does not afford investors a sufficient history
on which to base an investment decision.
Our revenues will be dependent upon acceptance of our Portal by consumers
and merchants.
The failure of such acceptance will cause us to curtail or cease operations.
We face substantial and increasing competition in the Indonesian e-commerce
market.
We cannot be certain that we
will obtain patents for our proprietary technology or that such patents will
protect us.
The availability of a large number of authorized but unissued shares of
Common Stock may, upon their issuance, lead to dilution of existing
stockholders.
Our stock is
thinly traded, sale of your holding may take a considerable amount of time.
Our Filing Status as a "Smaller Reporting Company"
We are a "smaller reporting company," meaning that we are not an investment company, an asset-backed issuer, or a majority-owned subsidiary of a parent company that is not a smaller reporting company and have a public float of less than $75 million and annual revenues of less than $50 million during the most recently completed fiscal year. As a "smaller reporting company," the disclosure we will be required to provide in our SEC filings are less than it would be if we were not considered a "smaller reporting company." Specifically, "smaller reporting companies" are able to provide simplified executive compensation disclosures in their filings; are exempt from the provisions of Section 404(b) of the Sarbanes-Oxley Act of 2002 requiring that independent registered public accounting firms provide an attestation report on the effectiveness of internal control over financial reporting; are not required to conduct say-on-pay and frequency votes until annual meetings occurring on or after January 21, 2013; and have certain other decreased disclosure obligations in their SEC filings, including, among other things, being permitted to provide two years of audited financial statements in annual reports rather than three years. Decreased disclosures in our SEC filings due to our status as a "smaller reporting company" may make it harder for investors to analyze the Company's results of operations and financial prospects.
Page 5
Implications of Being an Emerging Growth Company
We qualify as an emerging growth company as that term is used in the JOBS Act. An emerging growth company may take advantage of specified reduced reporting and other burdens that are otherwise applicable generally to public companies. These provisions include:
A requirement to have only two years of audited financial statements and only two years of related MD&A;
Exemption from the auditor attestation requirement in the assessment of the emerging growth companys internal control over financial reporting under Section 404 of the Sarbanes-Oxley Act of 2002 ("SOX");
Reduced disclosure about the emerging growth companys executive compensation arrangements; and
No non-binding advisory votes on executive compensation or golden parachute arrangements.
We have already taken advantage of these reduced reporting burdens in this Prospectus, which are also available to us as a smaller reporting company as defined under Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the Exchange Act).
In addition, Section 107 of the JOBS Act also provides that an emerging growth company can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act of 1933, as amended (the Act) for complying with new or revised accounting standards. We have elected to take advantage of the extended transition period for complying with new or revised accounting standards, which allows us to delay the adoption of new or revised accounting standards that have different effective dates for public and private companies until those standards apply to private companies. As a result of this election, our financial statements contained in this Form S-1 may not be comparable to companies that comply with public company effective dates. The existing scaled executive compensation disclosure requirements for smaller reporting companies will continue to apply to our filings for so long as our Company is an emerging growth company, regardless of whether the Company remains a smaller reporting company.
We could remain an emerging growth company for up to five years, or until the earliest of (i) the last day of the first fiscal year in which our annual gross revenues exceed $1 billion, (ii) the date that we become a large accelerated filer as defined in Rule 12b-2 under the Exchange Act, which would occur if the market value of our Common Stock that is held by non-affiliates exceeds $700 million as of the last business day of our most recently completed second fiscal quarter, or (iii) the date on which we have issued more than $1 billion in non-convertible debt during the preceding three year period.
For more details regarding this exemption, see Managements Discussion and Analysis of Financial Condition and Results of Operations Critical Accounting Policies.
Page 6
Common Stock offered by Selling Shareholders |
We are registering 1,450,000 shares of Common Stock. |
Common stock outstanding before and after the Offering | 7,467,013 shares of Common Stock before and after the offering |
Terms of the Offering | The Selling Security Holders will determine when and how they will sell the Common Stock offered in this Prospectus. The prices at which the Selling Security Holders may sell the shares of Common Stock in this Offering will be determined by the prevailing market price for the shares of Common Stock or in negotiated transactions. |
Termination of the Offering | The Offering will conclude upon such time as all of the Common Stock has been sold pursuant to the Registration Statement. |
Trading Market | Our Common Stock is subject to quotation on the OTCQB Market under the symbol "KPAY". |
Use of proceeds | The Company is not selling any shares of the Common Stock covered by this Prospectus. As such, we will not receive any of the Offering proceeds from the registration of the shares of Common Stock covered by this Prospectus. |
Risk Factors |
The Common Stock offered hereby involves a high degree of risk and should not be purchased by investors who cannot afford the loss of his/her/its entire investment. See "Risk Factors". |
Page 7
SUMMARY OF
FINANCIAL INFORMATION
The following summary financial data should be
read in conjunction with "Management's Discussion and Analysis," "Plan of
Operation" and the Financial Statements and Notes thereto, included
elsewhere in this Prospectus. The balance sheet and the statement of operations data are derived from our
unaudited interim financial statements for the period ended March 31, 2016 and
the year ended December 31, 2015.
Statement of Operations Data:
Balance Sheet Data:
Special Note Regarding Forward-Looking Statements
The information contained in this Prospectus, including in the
documents incorporated by reference into this Prospectus, includes some statements that
are not purely historical and that are "forward-looking statements." Such
forward-looking statements include, but are not limited to, statements regarding our
management's expectations, hopes, beliefs, intentions and/or strategies regarding the
future, including our financial condition and results of operations. In addition, any
statements that refer to projections, forecasts or other characterizations of future
events or circumstances, including any underlying assumptions, are forward-looking
statements. The words "anticipates," "believes," "continue," "could,"
"estimates," "expects," "intends," "may," "might," "plans," "possible,"
"potential," "predicts," "projects," "seeks," "should," "would" and similar expressions, or the negatives of such
terms, may identify forward-looking statements, but the absence of these words does not
mean that a statement is not forward-looking.
The forward-looking statements contained in this Prospectus are based
on current expectations and beliefs concerning future developments and the potential
effects on the parties and the transaction. There can be no assurance that future
developments actually affecting us will be those anticipated. These that may cause actual
results or performance to be materially different from those expressed or implied by
these forward-looking statements, including the following forward-looking statements
involve a number of risks, uncertainties (some of which are beyond the parties'
control) or other assumptions.
Page 8
For
the Period
For
the Year
Ended March 31, 2016
December 31, 2015
Revenues
$
-
$
-
Total general and administrative
expenses
1,350,151
44,932
Total operating expenses
(
1,350,151
)
(44,932)
Interest expense
(3)
(11,809)
Amortization expense
-
(37,058)
Loss on extinguishment of debt
(9,003)
(199,305)
Net loss
$
(1,359,157)
$
(293,104)
Net Loss Per Share Basic
and Diluted
$
(0.21)
$
(0.00)
Weighted Average Number of
Shares Outstanding - Basic and Diluted
6,412,325
136,275,147
March 31, 2016 (Unaudited)
December 31, 2015
Cash and restricted cash
578,956
$
250,194
Total assets
578,956
250,194
Total current liabilities
12,500
274,467
Total liabilities
12,500
274,467
Total stockholders'
deficit
566,456
$
(24,273)
Total liabilities and
shareholders' deficit
578,956
$
250,194
The shares of our Common Stock being offered for resale by the Selling Shareholders are highly speculative in nature, involve a high degree of risk and should be purchased only by persons who can afford to lose their entire amount invested in the Common Stock. Accordingly, prospective investors should carefully consider, along with other matters referred to herein, the following risk factors in evaluating our business before purchasing any shares of Common Stocks. If any of the following risks actually occurs, our business, financial condition or operating results could be materially adversely affected. In such case, you may lose all or part of your investment. You should carefully consider the risks described below and the other information in this Prospectus before investing in our Common Stock.
Risks Associated With Our Business
Our Independent Registered Public Accounting Firm has expressed substantial doubt as to our ability to continue as a going concern.
The audited financial statements have been prepared assuming that we will continue as a going concern and do not include any adjustments that might result if we cease to continue as a going concern. We believe that in order to continue as a going concern, including the costs of being a public company, we will need approximately $30,000 per year simply to cover the administrative, legal and accounting fees. We plan to fund these expenses primarily through cash flow, the sale of restricted shares of our Common Stock, and the issuance of convertible notes.
Based on our financial statements for the years ended December 31, 2015 and 2014, our independent registered public accounting firm has expressed substantial doubt as to our ability to continue as a going concern. To date we have not generated any revenue.
Notwithstanding our success in raising over $905,000 to date from the private sale of equity securities in 2016 and our expectation that we will be successful in raising up to an additional $2.5 million during 2016, there can be no assurance that we will continue to be successful in raising equity capital and have adequate capital resources to fund our operations or that any additional funds will be available to us when needed or at all, or, if available, will be available on favorable terms or in amounts required by us. If we are unable to obtain adequate capital resources to fund operations, we may be required to delay, scale back or eliminate some or all of our plan of operations, which may have a material adverse effect on our business, results of operations and ability to operate as a going concern.
Our limited operating history does not afford investors a sufficient history on which to base an investment decision.
On December 1, 2015, we were granted an exclusive, world-wide license by PT Kinerja Indonesia, our licensor, to KinerjaPay IP and its website, KinerjaPay.com, an e-commerce platform that provides users with the convenience of EPS for bill transfer and our Marketplace. Our Portal was first launched by PT Kinerja Indonesia in February 2015 and only has a limited operating history. See the disclosure under "Description of Business" and in Risk Factors below. As a result of our limited operating history, we may not become profitable in the near future, if at all. If we are unable to reach profitability, our stock price would decline and our ability to continue to raise capital, either equity or debt, may be adversely effected. The long-term revenue and income prospects of our business and the market for electronic online payments have not been proven. We will encounter risks and difficulties commonly faced by early-stage companies in new and rapidly evolving markets.
We plan to make significant investments using our recently raised equity capital in our newly-organized Indonesian subsidiary, PT Kinerja Pay Indonesia, which entity will conduct all of our business activities related to out Portal. Notwithstanding our ability to having raised equity capital to date and our expectation to be able to raise up to an additional $2.5 million during 2016, we may not be able to achieve profitability in the foreseeable future, if at all. Our ability to achieve profitability will depend on, among other things, market acceptance of our Portal and our ability to compete effectively with other e-commerce businesses operating in Indonesia and potentially in the wider Southeast Asian market. We cannot assure you that the relatively new market for our EPS and our Marketplace will remain viable in Indonesia. We expect to invest substantial amounts to:
Drive consumer and merchant awareness
to our EPS and Marketplace;
Persuade consumers and merchants to sign up for and use our
EPS product and use our Marketplace;
Improve our system infrastructure to handle seamless
processing of transactions;
Continue to develop our
Portal;
Expand into international markets; and
Broaden our customer base.
We may fail to implement successfully these objectives. This would adversely impact our revenues. There can be no assurance at this time that we will be able to operate profitably or that we will have adequate working capital to meet our obligations as they become due. Investors must consider the risks and difficulties frequently encountered by early stage companies, particularly in rapidly evolving markets. Such risks include the following:
competition;
need for acceptance of our Portal;
ability to
develop a brand identity;
ability to anticipate and adapt to a
competitive market;
ability to effectively manage rapidly expanding
operations;
amount and timing of operating costs and capital
expenditures relating to expansion of our business, operations, and
infrastructure; and
dependence upon key personnel to market our product
and the loss of one of our key managers may adversely affect the marketing
of our product.
We cannot be certain that our business strategy will be successful or that we will successfully address these risks. In the event that we do not successfully address these risks, our business, prospects, financial condition, and results of operations could be materially and adversely effected.
Page 9
Our revenues will be dependent upon acceptance of our Portal by the Indonesian Consumers. The failure of such acceptance will cause us to curtail or cease operations.
Uncertainty exists as to whether our Portal will be accepted by the Indonesian consumer. A number of factors may limit the market acceptance of our Portal, including the availability of alternative electronic payment portals and the fees for our services relative to alternative electronic payment services and other virtual marketplaces. There is a risk that potential customers and merchants will be encouraged to continue to use other portals and/or electronic payment services instead.
Our revenues are expected to come from the sale of our Portal services. As a result, we will continue to incur operating losses until such time as our revenues reach a mature level and we are able to generate sufficient cash flow to meet our operating expenses. There can be no assurance that the market will adopt our Portal. In the event that we are not able to successfully market and significantly increase the number of Portal users, or if we are unable to charge the necessary fees, our financial condition and results of operations will be materially and adversely affected.
Software failures, breakdowns in the operations of the servers and communications systems upon which we must rely or glitches or malfunctions in our Portal technology could hurt our reputation, revenues and profitability.
Our success depends on the efficient and uninterrupted operation of the servers and communications systems owned and operated by PT Kinerja Indonesia, an entity controlled by our controlling shareholder and CEO, Mr. Ng. We have entered into an agreement with PT Kinerja Indonesia to operate all of the servers, as well as provide hosting and maintenance services and the infrastructure systems, upon which we rely. A failure of these systems and services could impede our business by delays in processing of data, delivery of databases and services, client data and day-to-day management of our business. While all of our operations will have disaster recovery plans in place, they might not adequately protect us. Despite any precautions we take and PT Kinerja Indonesia already has in place, damage from fire, floods, hurricanes, power loss, telecommunications failures, computer viruses, break-ins and similar events at their computer facilities could result in interruptions in the flow of data to our customers. In addition, any failure by the computer environment to provide our required data communications capacity could result in interruptions in our service. In the event of a server failure, we could be required to transfer our client/customer data operations to an alternative provider of server hosting services. Such a transfer could result in delays in our ability to deliver our services to our customers.
To the extent that glitches or errors cause our Portal to malfunction and our customers' use of our Portal is interrupted, our reputation could suffer and our potential revenues could decline or be delayed until such glitches or errors are remedied, which will not be within our control. We may also be subject to liability for the glitches and malfunctions. There can be no assurance that, despite the expertise of PT Kinerja Indonesia, glitches and/or errors in our service or new releases or upgrades will not occur, resulting in loss of future revenues or delay in market acceptance, diversion of development resources, damage to our reputation, potential litigation, or increased service costs, any of which would have a material adverse effect upon our business, operating results and financial condition.
Long-term disruptions in the Portal infrastructure provided by PT Kinerja Indonesia caused by events such as natural disasters, the outbreak of war, the escalation of hostilities and acts of terrorism, particularly involving locations in Indonesia for which we will have no control, could adversely effect our e-commerce business. Although, we plan to carry property and business interruption insurance for our business operations, our coverage might not be adequate to compensate us for all losses that may occur.
We face risks related to the storage of customers' confidential and proprietary information.
Our Portal, which is maintained by PT Kinerja Indonesia, is designed to maintain the confidentiality and security of our customers' confidential and proprietary data that are stored on their server systems, which may include sensitive personal data. However, any accidental or willful security breaches or other unauthorized access to these data could expose us to liability for the loss of such information, time-consuming and expensive litigation and other possible liabilities as well as negative publicity which may be expected to adversely effect our business and operations. Techniques used to obtain unauthorized access or to sabotage systems change frequently and generally are difficult to recognize and react to. We rely on PT Kinerja Indonesia, which may be unable to anticipate these techniques or implement adequate preventative or reactionary measures.
We might incur substantial expense to further develop and commercially exploit our Portal which may never become sufficiently successful.
Our growth strategy requires the successful expansions of our e-commerce business. Although management will take every precaution to ensure that our Portal will, with a high degree of likelihood, achieve market acceptance and therefore commercial success, there can be no assurance that this will be the case. The causes for commercial failure can be numerous, including:
market demand for our
EPS and Marketplace proves to be
smaller than we expect;
competitive e-commerce providers, either
presently operating in the Indonesian market or who are to join our market may have superior
features, more competitive prices and/or fees, better performance and, as a result, greater market
acceptance;
further Portal development turns out to be more costly
than anticipated or takes longer;
our Portal requires significant
adjustment to changing market conditions, rendering the Portal uneconomic or
extending considerably the likely investment return period;
additional
regulatory requirements are imposed which increase the overall costs of
running our Portal;
Customers may be unwilling to adopt and/or use our
Portal.
Page 10
Card association rules may change or certain practices could negatively affect our business and, if we do not comply with these rules, could result in our inability to accept credit cards. If we are unable to accept credit cards, our competitive position would be critically damaged.
We are not a bank and as a result we are barred from belonging to and directly access the credit card associations or the bank payment network. We must therefore rely on banks and their service providers to process our transactions. We must comply with the operating rules of the credit card associations and bank payment networks as they apply to merchants. The associations' member banks set these rules, and the associations interpret the rules. Some of those member banks compete with us. Credit card associations could adopt new operating rules or interpretations of existing rules which we may find difficult or even impossible to comply with, in which case we could lose our ability to give customers the option of using credit cards to support their payments. If we were unable to accept credit cards our competitive position would be critically damaged.
We face considerable risks of loss due to fraud and/or disputes between senders and recipients. If we are unable to deal effectively with losses from fraudulent transactions, our losses from fraud would increase, and our business would be materially adversely effected.
We face significant risks of loss due to fraud and disputes between senders and recipients, including:
unauthorized use of credit cards and bank account information and
identity theft;
merchant fraud and other disputes;
system security
breaches;
fraud by employees; and
use of our system for illegal
purposes.
When a sender pays a merchant for goods or services through our Portal using a credit card and the cardholder is defrauded or otherwise disputes the charge, the full amount of the disputed transaction gets charged back to us and our credit card processor levies additional fees against us, unless we can successfully challenge the chargeback. Chargebacks may arise from the unauthorized use of a cardholder's card number or from a cardholder's claim that a merchant failed to perform. If our chargeback rate becomes excessive, credit card associations also can require us to pay fines and could terminate our ability to accept their cards for payments. We cannot assure you that chargebacks will not arise in the future.
We have taken measures to detect and reduce the risk of fraud, but we cannot assure you of these measures' effectiveness. If these measures do not succeed, our business will be adversely effected.
We may incur chargebacks and other losses from merchant fraud, payment disputes and insufficient funds, and our liability from these items could have a material adverse effect on our business and result in our losing the right to accept credit cards for payment as a result of which our ability to compete could be impaired, and our business would suffer.
While we did not incur any chargebacks during 2015 and during the three months ended March 31, 2016, we may incur losses from merchant fraud, including claims from customers that merchants have not performed, that their goods or services do not match the merchant's description or that the customer did not authorize the purchase. Our liability for such items could have a material adverse effect on our business, and if they become excessive, could result in our losing the right to accept credit cards for payment.
Unauthorized use of credit cards and bank accounts could expose us to substantial losses. If we are unable to detect and prevent unauthorized use of cards and bank accounts, our business would suffer.
The highly automated nature of our Portal makes us an attractive target for fraud. In configuring our Portal technology, we face an inherent trade-off between customer convenience and security. We believe that several of our current and former competitors in the electronic payments business have gone out of business or significantly restricted their businesses largely due to losses from this type of fraud. We expect that technically knowledgeable criminals will continue to attempt to circumvent our anti-fraud systems. During 2015 and during the three months ended March 31, 2016 , we did not incur any chargebacks but there can be no assurance that we will not incur chargebacks in the future.
Security and privacy breaches in our Portal may expose us to additional liability and result in the loss of customers, either of which events could harm our business and cause our stock price to decline.
Our inability, or the inability of PT Kinerja Indonesia, as the case may be, to protect the security and privacy of our electronic transactions could have a material adverse effect on our profitability. A security or privacy breach could:
expose us to additional liability;
increase our expenses relating
to resolution of these breaches; and
discourage customers from using
our product.
The type and scale of electronic payments that we handle for our customers makes us vulnerable to employee fraud or other internal security breaches and, as a result, our business would suffer. We cannot assure you that our internal security systems will prevent material losses from employee fraud and that our system applications designed for data security will effectively counter evolving security risks or address the security and privacy concerns of existing and potential customers. Any failures in our security and privacy measures could have a material adverse effect on our business, financial condition and results of operations.
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Our Portal might be used for illegal or improper purposes, which could expose us to additional liability and harm our business.
Despite measures we have taken to detect and prevent identify theft, unauthorized uses of credit cards and similar misconduct, our electronic online payment portal remains susceptible to potentially illegal or improper uses. These may include illegal online gaming, fraudulent sales of goods or services, illicit sales of prescription medications or controlled substances, software and other intellectual property piracy, money laundering, bank fraud, child pornography trafficking, prohibited sales of alcoholic beverages and tobacco products and online securities fraud. Despite measures we have taken to detect and lessen the risk of this kind of conduct, we cannot assure you that these measures will succeed. Our business could suffer if customers use our system for illegal or improper purposes.
In addition, we classify merchants who historically have experienced significant chargeback rates as higher risk. The legal status of many of these higher risk accounts is uncertain, and if these merchants are prohibited or restricted from operating in the future, our revenue from fees generated from these accounts would decline. Proposed legislation has been introduced in Indonesia that operation of an Internet gaming business, sales of alcoholic beverages and other activities violates Indonesian law, and to prohibit payment processors such as us from processing payments for those activities. If merchants accept these illegal activities, we could be subject to civil and criminal lawsuits, administrative action and prosecution for, among other things, money laundering or for aiding and abetting violations of law. We would lose the revenues associated with these accounts and could be subject to material penalties and fines, both of which would seriously harm our business.
We face substantial and increasing competition in the Indonesian e-commerce market.
The market in which we operate is intensely competitive. We currently and potentially compete with a wide variety of electronic payment providers and online and offline companies marketplaces providing goods and services to consumers and merchants . The Internet and mobile networks provide new, rapidly evolving and intensely competitive channels for electronic payment services and marketplaces to sell all types of goods and services. We compete in two-sided markets, and must attract both buyers and sellers to use our Marketplace. Consumers who purchase or sell goods through our Marketplace have more and more alternatives, and merchants have more channels to reach consumers. We expect competition to continue to intensify. Online and offline businesses increasingly are competing with each other and our competitors include a number of online and offline retailers with significant resources, large user communities and well-established brands. Moreover, the barriers to entry into these channels can be low, and businesses easily can launch online sites or mobile platforms and applications at nominal cost by using commercially available software or partnering with any of a number of successful e-commerce companies. As we respond to changes in the competitive environment, we may, from time to time, make pricing, service or marketing decisions or acquisitions that may be controversial with and lead to dissatisfaction among users, which could reduce activity on our Portal and harm our profitability.
Some of our competitors are well known, more established and better capitalized than we are and we may be unable to establish market share. As such, they may have at their disposal greater marketing strength and economies of scale and, as they may have additional products and/or services at more competitive price. They may also have more resources to expend to create more innovative payment processing products in competition with ours. Accordingly, we may not be successful in competing effectively for market share.
The market we operate in emerging, intensely competitive and characterized by rapid technological change. We compete with existing electronic payment services and virtual marketplaces, including, among others:
Tokopedia
Bukalapak
Lazada
Zalora
OLX
Blibli
Payment
processors such as Doku and Veritrans
Our competitors may respond to new technologies and changes in customer requirements faster and more effectively than we can. These competitors have offered, and may continue to offer, their services for free in order to gain market share and we may be forced to lower our prices in response.
Our status under certain Indonesian and international financial services regulation is unclear. Violation of or compliance with present or future regulation could be costly, expose us to substantial liability, force us to change our business practices or force us to cease offering our current product.
We operate in an industry subject to government regulation. We currently are subject to Indonesian regulations in our role as money transfer agent and are therefore subject to Indonesian electronic fund transfer and money laundering regulations. In the future, we might be subjected to:
banking regulations;
additional money transmitter regulations and
money laundering regulations;
international banking or financial
services regulations or laws governing other regulated industries; or
U.S. and international regulation of Internet transactions.
If we are
found to be in violation of any current or future regulations, we could be:
exposed to financial liability, including substantial fines which could be
imposed on a per transaction basis and disgorgement of our profits;
forced to change our business practices; or
forced to cease doing
business altogether or with the residents of one or more states or
countries.
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However, we cannot assure you that the steps we have taken to address any regulatory concerns will be effective. If we are found to be engaged in an unauthorized banking business, we might be subject to monetary penalties and might be required to cease doing business. Even if the steps we have taken to resolve any concerns are deemed sufficient by the regulatory authorities, we could be subject to fines and penalties for our prior activities. The need to comply with laws prohibiting unauthorized banking activities could also limit our ability to enhance our services in the future.
Our financial success will remain highly sensitive to changes in the rate at which our customers fund payments using credit cards rather than bank account transfers. Our profitability could be harmed if the rate at which customers fund using credit cards goes up.
We pay significant transaction fees when senders fund payment transactions using credit cards, nominal fees when customers fund payment transactions by electronic transfer of funds from bank accounts and no fees when customers fund payment transactions from an existing account balance with us. Senders may resist funding payments by electronic transfer from bank accounts because of the greater protection offered by credit cards, including the ability to dispute and reverse merchant charges, because of frequent flier miles or other incentives offered by credit cards or because of generalized fears regarding privacy or loss of control in surrendering bank account information to a third party.
We rely on financial institutions to process our payment transactions. Should any of these institutions decide to stop processing our payment transactions, our business could suffer.
Not being a bank, we cannot belong to and directly access the credit card associations or the bank payment network. As a result, we must rely on banks or their independent service operators to process our transactions. Bank Central Asia ("BCA") currently processes our bank transactions and our credit card transactions. BCA also provides payment processing services to some of our competitor and offers credit card processing services directly to online merchants. If we could not obtain processing services on acceptable terms, and if we could not switch to another processor quickly and smoothly, our business could suffer materially.
Increases in credit card processing fees could increase our costs, affect our profitability, or otherwise limit our operations.
From time to time, credit card associations increase the interchange fees that they charge for each transaction using their cards. Our credit card processors have the right to pass any increases in interchange fees on to us. Any such increased fees could increase our operating costs and reduce our profit margins. Furthermore, our credit card processors require us to pledge cash as collateral with respect to our acceptance of certain credit cards and the amount of cash that we are required to pledge could be increased at any time.
Customer complaints or negative publicity about our product and customer service could affect use of our product adversely and, as a result, our business could suffer.
Customer complaints or negative publicity about our Portal could diminish consumer confidence in our EPS and Marketplace. Breaches of our customers' privacy and our security measures could have the same effect. Measures we sometimes take to combat risks of fraud and breaches of privacy and security, such as freezing customer funds, can damage relations with our customers. These measures heighten the need for prompt and accurate customer service to resolve irregularities and disputes. We may receive negative media coverage, as well as public criticism regarding customer disputes. Effective customer service requires significant personnel expense, and if not managed properly, could impact our profitability significantly. The number of customer service and sales representatives that PT Kinerja Indonesia employees is expected to increase from currently 5 throughout 2016. Any inability to manage or train our customer service representatives properly could compromise our ability to handle customer complaints effectively. If we do not handle customer complaints effectively, our reputation may suffer and we may lose our customers' confidence.
We have limited experience in managing and accounting accurately for large amounts of customer funds. Our failure to manage these funds properly would harm our business.
Our ability to manage customer funds requires a high level of internal controls. We have neither an established operating history nor proven management experience in maintaining, over a long term, these internal controls. As our business continues to grow, we must strengthen our internal controls accordingly. Our success requires customer's confidence in our ability to handle large and growing transaction volumes and amounts of customer funds. Any failure to maintain controls or to manage customer funds could diminish customer use of our Portal severely.
Compliance with changing regulations concerning corporate governance and public disclosure may result in additional expenses.
In recent years, there have been several changes in laws, rules, regulations and standards relating to corporate governance and public disclosure, including the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"), the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley") and various other new regulations promulgated by the SEC and rules promulgated by the national securities exchanges.
The Dodd-Frank Act, enacted in July 2010, expands federal regulation of corporate governance matters and imposes requirements on publicly-held companies, including us, to, among other things, provide stockholders with a periodic advisory vote on executive compensation and also adds compensation committee reforms and enhanced pay-for-performance disclosures. While some provisions of the Dodd-Frank Act were effective upon enactment, others will be implemented upon the SEC's adoption of related rules and regulations. The scope and timing of the adoption of such rules and regulations is uncertain and accordingly, the cost of compliance with the Dodd-Frank Act is also uncertain.
In addition, Sarbanes-Oxley specifically requires, among other things, that we maintain effective internal control over financial reporting and disclosure of controls and procedures. In particular, we must perform system and process evaluation and testing of our internal control over financial reporting to allow management to report on the effectiveness of our internal control over financial reporting, as required by Section 404 of Sarbanes-Oxley Act ("Section 404"), and our independent registered public accounting firm is required to attest to our internal control over financial reporting.
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Our testing, or the subsequent testing by our independent registered public accounting firm may reveal deficiencies in our internal control over financial reporting that are deemed to be material weaknesses. Our compliance with Section 404 will require that we incur substantial accounting expenses and expend significant management efforts. We currently have limited internal audit capabilities and will need to hire additional accounting and financial staff with appropriate public company experience and technical accounting knowledge. Moreover, if we are not able to comply with the requirements of Section 404 in a timely manner, or if we or our independent registered public accounting firm identifies deficiencies in our internal control over financial reporting that are deemed to be material weaknesses, the market price of our stock could decline, and we could be subject to sanctions or investigations by the SEC or other regulatory authorities, which would require additional financial and management resources.
These and other new or changed laws, rules, regulations and standards are, or will be, subject to varying interpretations in many cases due to their lack of specificity. As a result, their application in practice may evolve over time as new guidance is provided by regulatory and governing bodies, which could result in continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices. Our efforts to comply with evolving laws, regulations and standards are likely to continue to result in increased general and administrative expenses and a diversion of management time and attention from revenue-generating activities to compliance activities. Further, compliance with new and existing laws, rules, regulations and standards may make it more difficult and expensive for us to maintain director and officer liability insurance, and we may be required to accept reduced coverage or incur substantially higher costs to obtain coverage. Members of our board of directors and our principal executive officer and principal financial officer could face an increased risk of personal liability in connection with the performance of their duties. As a result, we may have difficulty attracting and retaining qualified directors and executive officers, which could harm our business. We continually evaluate and monitor regulatory developments and cannot estimate the timing or magnitude of additional costs we may incur as a result.
Online payment processing liability is inherent in the industry and insurance is expensive and difficult to obtain, we may be exposed to large lawsuits.
Our business exposes us to potential liability risks, which are inherent in the e-commerce business. While we will take precautions we deem to be appropriate to avoid potential liability suits against us, there can be no assurance that we will be able to avoid significant liability exposure. Liability insurance for electronic payment processing industry is generally expensive. We plan to obtain liability professional indemnity insurance coverage for our Portal services. There can be no assurance that we will be able to obtain such coverage on acceptable terms, or that any insurance policy will provide adequate protection against potential claims. A successful liability claim brought against us may exceed any insurance coverage secured by us and could have a material adverse effect on our results or ability to continue our Portal.
We may need to raise additional capital to fund continuing operations and an inability to raise the necessary capital or to do so on acceptable terms could threaten the success of our business.
We currently anticipate that our available capital resources will be sufficient to meet our expected working capital and capital expenditure requirements for the six-month ended June 30, 2016. We anticipate that we may require an additional funding during 2016. However, such resources may not be sufficient to fund the long-term growth of our business. If we determine that it is necessary to raise additional funds, we may choose to do so through strategic collaborations, licensing arrangements, public or private equity or debt financing, a bank line of credit, or other arrangements.
We cannot be sure that any additional funding will be available on terms favorable to us. Any additional equity financing may be dilutive to our stockholders, new equity securities may have rights, preferences or privileges senior to those of existing holders of our Shares. Debt or equity financing may subject us to restrictive covenants and significant interest costs. If we obtain funding through a strategic collaboration or licensing arrangement, we may be required to relinquish our rights to our product or marketing territories. If we are unable to obtain financing necessary to support our operations, we may be required to defer, reduce or eliminate certain planned expenditures or significantly curtail our operations.
We may need to increase the size of our organization, and may experience difficulties in managing growth.
At present, we are a small company. We expect to experience a period of expansion in headcount, infrastructure and overhead and anticipate that further expansion will be required to address potential growth and market opportunities. Future growth will impose significant added responsibilities on members of management, including the need to identify, recruit, maintain and integrate new managers. Our future financial performance and its ability to compete effectively will depend, in part, on its ability to manage any future growth effectively.
The loss of key personnel could adversely affect our business. We may not be able to hire and retain qualified personnel to support our growth.
Our success depends to a significant extent upon Mr. Edwin Ng, our CEO and controlling shareholder, and other key personnel that we expect to join us during the remainder of 2016. The loss of the services of such personnel and the inability to hire and retain of such personnel could adversely affect our business and our ability to implement our growth plan. We cannot assure you that the services of the members of our management team will continue to be available to us, or that we will be able to find a suitable replacements. We do not have key man insurance on any members of our management team. If any member of our management team were to die and we are unable to replace them for a prolonged period of time, we may be unable to carry out our long term business plan and our future prospect for growth, and our business, may be harmed.
Our success is dependent upon our ability to attract, train, manage and retain qualified personnel. There is substantial competition for qualified personnel, and an inability to recruit or retain qualified personnel may impact our ability to implement our strategy to grow our business.
We plan to grant stock options or other forms of equity awards in the future as a method of attracting and retaining employees, motivating performance and aligning the interests of employees with those of our stockholders. There are currently no options and/or equity awards outstanding. If we are unable to adopt, implement and maintain equity compensation arrangements that provide sufficient incentives, we may be unable to retain our existing employees and attract additional qualified candidates. If we are unable to retain our existing employees, including qualified technical personnel, and attract additional qualified candidates, our business and results of operations could be adversely effected.
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We may not be able to successfully expand our business through acquisitions.
We review corporate and product acquisitions as a part of our growth strategy. If we decided to undertake an acquisition, we may not be able to successfully integrate it in order to realize the full benefit of such acquisition. Factors which may affect our ability to grow successfully through acquisitions include:
inability to identify suitable targets given the relatively narrow
scope of our business;
inability to obtain acquisition or additional
working capital financing due to our financial condition;
difficulties
and expenses in connection with integrating the acquired companies and
achieving the expected benefits;
diversion of management's attention
from current operations;
the possibility that we may be adversely
affected by risk factors facing the acquired companies;
acquisitions
could be dilutive to earnings, or in the event of acquisitions made through
the issuance of our common shares to the shareholders of the acquired
company, dilutive to our existing shareholders;
potential losses
resulting from undiscovered liabilities of acquired companies not covered by
the indemnification we may obtain from the seller; and
loss of key
employees of the acquired companies.
We have limited experience competing in international markets, where we hope to compete, beyond Indonesia. Our international expansion plans will expose us to greater political, intellectual property, regulatory, exchange rate fluctuation and other risks, which could harm our business.
We intend to expand use of our EPS and Marketplace in selected international markets, initially in the Southeast Asian region. If we are unable to execute our expansion into international markets, our business could suffer. Accordingly, we anticipate devoting significant resources and management attention to expanding international opportunities. Expanding internationally subjects us to a number of risks, including:
greater difficulty in managing foreign operations;
expenses
associated with localizing our products, including offering customers the
ability to transact business in major currencies in addition to the
Indonesian Rupiah;
laws and business practices that favor local
competitors;
multiple and changing laws, tax regimes and government
regulations;
foreign currency restrictions and exchange rate
fluctuations;
changes in a specific country's or region's political or
economic conditions; and
differing intellectual property laws.
Risks Related to Our Common Stock
We are subject to compliance with securities law, which exposes us to potential liabilities, including potential rescission rights.
We have offered and sold our Common Stock to investors pursuant to certain exemptions from the registration requirements of the Securities Act of 1933, as well as those of various state securities laws. The basis for relying on such exemptions is factual; that is, the applicability of such exemptions depends upon our conduct and that of those persons contacting prospective investors and making the offering. We have not received a legal opinion to the effect that any of our prior offerings were exempt from registration under any federal or state law. Instead, we have relied upon the operative facts as the basis for such exemptions, including information provided by investors themselves.
If any prior offering did not qualify for such exemption, an investor would have the right to rescind its purchase of the securities if it so desired. It is possible that if an investor should seek rescission, such investor would succeed. A similar situation prevails under state law in those states where the securities may be offered without registration in reliance on the partial preemption from the registration or qualification provisions of such state statutes. If investors were successful in seeking rescission, we would face severe financial demands that could adversely affect our business and operations. Additionally, if we did not in fact qualify for the exemptions upon which it has relied, we may become subject to significant fines and penalties imposed by the SEC and state securities agencies.
Edwin Ng, our Control Shareholder and Chairman owns approximately 40% of our common stock and may be able to influence the outcome of stockholder votes and their interests may differ from other stockholders.
As of July 19, 2016, our control shareholder, executive officer and director beneficially owns 3,000,000 shares of our Common Stock representing approximately 40% of our outstanding Shares, excluding Shares underlying options and warrants. Subject to any fiduciary duties owed to our other stockholders under Delaware law, these stockholders may be able to exercise significant influence over matters requiring stockholder approval, including the election of directors and approval of significant corporate transactions, and will have some control over our management and policies. Some of these persons may have interests that are different from yours. For example, these stockholders may support proposals and actions with which you may disagree. The concentration of ownership could delay or prevent a change in control of the Company or otherwise discourage a potential acquirer from attempting to obtain control of the Company, which in turn could reduce the price of our stock. In addition, these stockholders could use their voting influence to maintain our existing management and directors in office, delay or prevent changes in control of the Company, or support or reject other management and board proposals that are subject to stockholder approval, such as amendments to our employee stock plans and approvals of significant financing transactions.
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The availability of a large number of authorized but unissued shares of Common Stock may lead to dilution of existing stockholders.
We are authorized to issue 500,000,000 shares of Common Stock, $0.0001 par value per share. We have approximately 492,533,00 shares of Common Stock available for issuance. Additional shares may be issued by our board of directors without further stockholder approval. The issuance of large numbers of shares, possibly at below market prices, is likely to result in substantial dilution to the interests of other stockholders. In addition, issuances of large numbers of shares may adversely affect the market price of our Common Stock.
Our Certificate of Incorporation, as amended, authorizes 10,000,000 shares of preferred stock, $0.0001 par value per share none of which are issued and outstanding to date. The board of directors is authorized to provide for the issuance of these unissued shares of preferred stock in one or more series, and to fix the number of shares and to determine the rights, preferences and privileges thereof. Accordingly, the board of directors may issue preferred stock which may convert into large numbers of shares of Common Stock and consequently lead to further dilution of other shareholders.
We have never paid cash dividends and do not anticipate doing so in the foreseeable future.
We have never declared or paid cash dividends on our common shares. We currently plan to retain any earnings to finance the growth of our business rather than to pay cash dividends. Payments of any cash dividends in the future will depend on our financial condition, results of operations and capital requirements, as well as other factors deemed relevant by our board of directors.
Our Common Stock is subject to the "Penny Stock" rules of the SEC and the trading market in our stock is limited, which makes transactions in our stock cumbersome and may reduce the value of an investment.
The Securities and Exchange Commission has adopted Rule 15g-9 which establishes the definition of a "penny stock," for the purposes relevant to us, as any equity security that has a market price of less than $5.00 per share or with an exercise price of less than $5.00 per share, subject to certain exceptions. For any transaction involving a penny stock, unless exempt, the rules require:
That a broker or dealer approve a person's account for transactions in
penny stocks; and
The broker or dealer receives a
written agreement to the transaction, setting forth the identity and
quantity of the penny stock to be purchased.
In order to approve a person's account for transactions in penny stocks, the broker or dealer must:
Obtain financial information and investment experience objectives of
the person; and
Make a reasonable determination that the transactions
in penny stocks are suitable for that person and the person has sufficient
knowledge and experience in financial matters to be capable of evaluating
the risks of transactions in penny stocks.
The broker or dealer must also deliver, prior to any transaction in a penny stock, a disclosure schedule prescribed by the Commission relating to the penny stock market, which, in highlight form:
Sets forth the basis on which the broker or dealer made the suitability
determination; and
That the broker or dealer received a signed, written
agreement from the investor prior to the transaction.
Generally, brokers may be less willing to execute transactions in securities subject to the "penny stock" rules. This may make it more difficult for investors to dispose of our Common Stock and cause a decline in the market value of our stock.
Disclosure also has to be made about the risks of investing in penny stocks in both public offerings and in secondary trading and about the commissions payable to both the broker-dealer and the registered representative, current quotations for the securities and the rights and remedies available to an investor in cases of fraud in penny stock transactions. Finally, monthly statements have to be sent disclosing recent price information for the penny stock held in the account and information on the limited market in penny stocks.
Financial Industry Regulatory Authority, Inc. ("FINRA") sales practice requirements may limit a shareholder's ability to trade our Common Stock.
In addition to the "penny stock" rules described above, FINRA has adopted rules that require that in recommending an investment to a customer, a broker-dealer must have reasonable grounds for believing that the investment is suitable for that customer. Prior to recommending speculative low priced securities to their non-institutional customers, broker-dealers must make reasonable efforts to obtain information about the customer's financial status, tax status, investment objectives and other information. Under interpretations of these rules, FINRA believes that there is a high probability that speculative low priced securities will not be suitable for some customers. FINRA requirements make it more difficult for broker-dealers to recommend that their customers buy our Shares, which may limit your ability to buy and sell our stock and have an adverse effect on the market for our Shares.
Our stock is thinly traded, sale of your holding may take a considerable amount of time.
The shares of our Common Stock are thinly-traded on the OTCQB Market, meaning that the number of persons interested in purchasing our Common Stock at or near bid prices may be relatively small or non-existent. As a consequence, there may be periods of several days or more when trading activity in our shares is minimal or non-existent, as compared to a seasoned issuer which has a large and steady volume of trading activity that will generally support continuous sales without an adverse effect on share price. There can be no assurance that a broader or more active public trading market for our Common Stock will develop or be sustained. Due to these conditions, we can give you no assurance that you will be able to sell your shares at or near bid prices or at all if you need money or otherwise desire to liquidate your shares.
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Shares eligible for future sale may adversely affect the market.
From time to time, certain of our stockholders may be eligible to sell all or some of their shares of Common Stock by means of ordinary brokerage transactions in the open market pursuant to Rule 144 promulgated under the Securities Act, subject to certain limitations. In general, pursuant to amended Rule 144, non-affiliate stockholders may sell freely after six months subject only to the current public information requirement. Affiliates may sell after six months subject to the Rule 144 volume, manner of sale (for equity securities), current public information and notice requirements. Any substantial sales of our Common Stock pursuant to Rule 144 may have a material adverse effect on the market price of our Common Stock.
If we fail to maintain effective internal controls over financial reporting, the price of our Common Stock may be adversely affected.
Our internal control over financial reporting may have weaknesses and conditions that could require correction or remediation, the disclosure of which may have an adverse impact on the price of our Common Stock. We are required to establish and maintain appropriate internal controls over financial reporting. Failure to establish those controls, or any failure of those controls once established, could adversely affect our public disclosures regarding our business, financial condition or results of operations. In addition, management's assessment of internal controls over financial reporting may identify weaknesses and conditions that need to be addressed in our internal controls over financial reporting or other matters that may raise concerns for investors. Any actual or perceived weaknesses that need to be addressed in our internal control over financial reporting or disclosure of management's assessment of our internal controls over financial reporting may have an adverse impact on the price of our Common Stock.
We are required to comply with certain provisions of Section 404 of the Sarbanes-Oxley Act of 2002 and if we fail to comply in a timely manner, our business could be harmed and our stock price could decline.
Rules adopted by the SEC pursuant to Section 404 of the Sarbanes-Oxley Act of 2002 require an annual assessment of internal controls over financial reporting, and for certain issuers an attestation of this assessment by the issuer's independent registered public accounting firm. The standards that must be met for management to assess the internal controls over financial reporting as effective are evolving and complex, and require significant documentation, testing, and possible remediation to meet the detailed standards.
We expect to incur expenses and to devote resources to Section 404 compliance on an ongoing basis. It is difficult for us to predict how long it will take or costly it will be to complete the assessment of the effectiveness of our internal control over financial reporting for each year and to remediate any deficiencies in our internal control over financial reporting. As a result, we may not be able to complete the assessment and remediation process on a timely basis. In addition, although attestation requirements by our independent registered public accounting firm are not presently applicable to us, we could become subject to these requirements in the future and we may encounter problems or delays in completing the implementation of any resulting changes to internal controls over financial reporting. In the event that our Chief Executive Officer or Chief Financial Officer determine that our internal control over financial reporting is not effective as defined under Section 404, we cannot predict how the market prices of our shares will be affected; however, we believe that there is a risk that investor confidence and share value may be negatively affected.
Our share price could be volatile and our trading volume may fluctuate substantially.
The price of our Common Shares has been and may in the future continue to be extremely volatile, with the sale price fluctuating from a low of $0.02 to a high of $1.20 since 2013. Many factors could have a significant impact on the future price of our common shares, including:
our inability to raise additional capital to fund our operations;
our failure to successfully implement our business objectives and
strategic growth plans;
compliance with ongoing regulatory
requirements;
market acceptance of our product;
changes in
government regulations; and
actual or anticipated fluctuations in our
quarterly financial and operating results; and the degree of trading
liquidity in our common shares.
Our annual and quarterly results may fluctuate, which may cause substantial fluctuations in our common stock price.
Our annual and quarterly operating results may in the future fluctuate significantly depending on factors including the volume of electronic transactions, new Portal updates by us and other competitors, gain or loss of significant customers, pricing of our Portal fees, the timing of expenditures and economic conditions. Revenues related to our electronic payment processing are required to be recognized upon satisfaction of all applicable revenue recognition criteria. The recognition of revenues from our Portal fees is dependent on a number of factors, including, but not limited to, the terms of any license agreement and the timing of Portal transactions by our customers.
Any unfavorable change in these or other factors could have a material adverse effect on our operating results for a particular quarter or year, which may cause downward pressure on our common stock price. We expect quarterly and annual fluctuations to continue for the foreseeable future.
Delaware law contains provisions that could discourage, delay or prevent a change in control of our Company, prevent attempts to replace or remove current management and reduce the market price of our stock.
Provisions in our certificate of incorporation and bylaws may discourage, delay or prevent a merger or acquisition involving us that our stockholders may consider favorable. For example, our certificate of incorporation authorizes our board of directors to issue up to ten million shares of "blank check" preferred stock. As a result, without further stockholder approval, the board of directors has the authority to attach special rights, including voting and dividend rights, to this preferred stock. With these rights, preferred stockholders could make it more difficult for a third party to acquire us.
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We are also subject to the anti-takeover provisions of the DGCL. Under these provisions, if anyone becomes an "interested stockholder," we may not enter into a "business combination" with that person for three years without special approval, which could discourage a third party from making a takeover offer and could delay or prevent a change in control of us. An "interested stockholder" is, generally, a stockholder who owns 15% or more of our outstanding voting stock or an affiliate of ours who has owned 15% or more of our outstanding voting stock during the past three years, subject to certain exceptions as described in the DGCL.
Our quarterly operating results fluctuate and may not predict our future performance accurately. Variability in our future performance could cause our stock price to fluctuate and decline.
We expect our quarterly results will fluctuate in the future as a result of a variety of factors, many of which are beyond our control. These factors include:
changes in our costs, including interchange and transaction fees
charged by credit card associations, and our transaction losses;
changes in our pricing policies or those of our competitors;
relative
rates of acquisition of new customers;
seasonal patterns, including
increases during the holiday season;
delays in the introduction of new
or enhanced services, software and related products by us or our competitors
or market acceptance of these products and services; and
other changes
in operating expenses, personnel and general economic conditions.
As a result, period-to-period comparisons of our operating results may not be meaningful, and you should not rely on them as an indication of our future performance.
Page 18
We will not receive any proceeds from the sale of Common Stock by the Selling Shareholders. All of the net proceeds from the sale of our Common Stock will go to the Selling Shareholders as described below in the sections entitled "Selling Security Holders" and "Plan of Distribution." We have agreed to bear the expenses relating to the registration of the Common Stock for the Selling Shareholders.
DETERMINATION OF OFFERING PRICE
The Selling Shareholders may sell their shares in the over-the-counter market or otherwise, at market prices prevailing at the time of sale, at prices related to the prevailing market price, or at negotiated prices. We will not receive any proceeds from the sale of Common Stock by the Selling Shareholders.
The Common Stock to be sold by the Selling Shareholders as provided in the "Selling Security Holders" section is Common Stock that is currently issued. Accordingly, there will be no dilution to our existing shareholders.
The following table sets forth the names of the Selling Security Holders, the number of shares of Common Stock beneficially owned as of the date of our Registration Statement, of which this Prospectus is a part, and the number of shares of Common Stock being offered by the Selling Security Holders. The shares being offered hereby are being registered to permit public secondary trading, and the Selling Security Holders may offer all or part of the shares for resale from time to time. However, the Selling Security Holders are under no obligation to sell all or any portion of such shares nor are the Selling Security Holders obligated to sell any shares immediately upon effectiveness of this Prospectus. All information with respect to share ownership has been furnished by the Selling Security Holders.
Date of | Consideration Paid | Common Stock Beneficially | Common Stock | Common Stock | ||
Name | First Name | Transaction | per Share Unit (2) | Owned Prior to Offering | to Be Offered | Owned After Offering |
P.T. Stareast Asset Management (1) | - | 12/29/2015 | $0.50 per Share Unit | 500,000 | 500,000 | 0 |
P.T. Stareast Asset Management (2) | - | 01/11/2016 | $0.50 per Share Unit | 140,000 | 500,000 | 0 |
Limas | Firman Eddy | 01/11/2016 | $0.50 per Share Unit | 140,000 | 140,000 | 0 |
Danil | Christopher | 01/20/2016 | $0.50 per Share Unit |
20,000 |
20,000 |
0 |
Wibowo | Eric | 01/19/2016 | $0.50 per Share Unit |
40,000 |
40,000 |
0 |
Pang | Henful | 01/19/2016 | $0.50 per Share Unit |
40,000 |
40,000 |
0 |
Tjahjono | Hendro | 12/31/2015 | $0.50 per Share Unit |
20,000 |
20,000 |
0 |
Budianto | Jusuf | 01/1320`16 | $0.50 per Share Unit |
20,000 |
20,000 |
0 |
Kin Harn | Lau | 01/13/2016 | $0.50 per Share Unit |
20,000 |
20,000 |
0 |
Widjaja | Stephanus Titus | 01/19/2016 | $0.50 per Share Unit |
20,000 |
20,000 |
0 |
Kurniadi | Stephan | 12/30/2015 | $0.50 per Share Unit |
20,000 |
20,000 |
0 |
Litansen | Andy | 01/19/2016 | $0.50 per Share Unit |
30,000 |
30,000 |
0 |
Farida | Djoahan | 02/02/2016 | $0.50 per Share Unit |
150,000 |
150,000 |
0 |
Silvia | Silvia | 02/02/2016 | $0.50 per Share Unit |
50,000 |
50,000 |
0 |
Goenawan | Alfred Herman | 02/26/2016 | $0.50 per Share Unit |
200,000 |
200,000 |
0 |
Nah Kim Boon | Jeffrey | 03/21/2016 | $0.50 per Share Unit |
20,000 |
20,000 |
0 |
Yohansha | Daniel | 03/01/2016 | $0.50 per Share Unit |
20,000 |
20,000 |
0 |
Total | 1,450,000 | 1,450,000 |
(1)
Wendy Teoh, an Indonesian resident and citizen, exercises the sole voting and dispositive powers with respect to the
shares offered.
None of the selling shareholders, other than P.T. Stareast Asset Management, who is a 5% shareholder, has any material relationship with the Company
or its subsidiary. P.T. Stareast Asset Management's relationship with the
Registrant is solely due to its relationship of being a 5% shareholder of
our common stock. P.T. Stareast Asset Management is neither a broker-dealer
nor affiliated with a broker-dealer. None of the other Selling Security Holders or their
beneficial owners are officers or directors of the Company or its
wholly-owned subsidiary PT Kinerja Pay Indonesia. None of the other Selling Security Holders or their
beneficial owners:
- has had a material relationship with us other than as a shareholder at any time
within the past three years; or
(2) The above-referenced Subscription Agreements were
executed during the period commencing December 30, 2015 through March 1,
2016 but the Shares were not issued until after the effective date of the
Registrant's reverse split, which was March 10, 2016. The Shares were issued
pursuant to a Subscription Agreements, attached hereto as Exhibits 10.8 to
10.23 were issued pursuant to a Unit Offering, each consisting of one Share and
one Class A Warrant exercisable to purchase one additional Share at $1.00 for a
period of 24 months.
- has ever been one of our officers or directors or an officer or director of our
predecessors or affiliates;
- are broker-dealers or affiliated with broker-dealers.
Page 19
This Prospectus relates to the resale of up to 1,450,000
shares of our Common Stock.
The Selling Shareholders and any of its pledgees, donees, assignees and
other successors-in-interest may, from time to time sell any or all of their shares of
Common Stock on any market or trading facility on which the shares are traded or in
private transactions. These sales may be at fixed or negotiated prices. The Selling
Shareholders may use any one or more of the following methods when selling shares:
The Selling Shareholders shall have the sole and absolute discretion
not to accept any purchase offer or make any sale of shares if it deems the purchase price
to be unsatisfactory at any particular time.
The Selling Shareholders may also sell the shares directly to market
makers acting as principals and/or broker-dealers acting as agents for themselves or their
customers. Such broker-dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Shareholders and/or the purchasers of shares
for whom such broker-dealers may act as agents or to whom they sell as principal or both,
which compensation as to a particular broker-dealer might be in excess of customary
commissions. Market makers and block purchasers purchasing the shares will do so for their
own account and at their own risk. It is possible that the Selling Shareholders will
attempt to sell shares of Common Stock in block transactions to market makers or other
purchasers at a price per share which may be below the then existing market price. We
cannot assure that all or any of the shares offered in this Prospectus will be issued to,
or sold by, the Selling Shareholders. The Selling Shareholders and any broker-dealers or
agents, upon completing the sale of any of the shares offered in this Prospectus, may be
deemed to be "underwriters" as that term is defined under the Act, the Exchange
Act and the rules and regulations of such acts. In such event, any commissions received by
such broker-dealers or agents and any profit on the resale of the shares purchased by them
may be deemed to be underwriting commissions or discounts under the Act.
The Selling Shareholders, alternatively, may sell all or any part of
the shares offered in this Prospectus through an underwriter. The Selling Shareholders
have not entered into any agreement with a prospective underwriter and there is no
assurance that any such agreement will be entered into.
We know of no existing arrangements between the Selling Shareholders
and any other stockholder, broker, dealer or agent relating to the sale or distribution of
the shares. We will not receive any proceeds from the sale of the shares of the Selling
Shareholders pursuant to this Prospectus. We have agreed to bear the expenses of the
registration of the shares, including legal and accounting fees, and such expenses are
estimated to be approximately $30,000.
A Selling Shareholder may pledge his/her/its shares to their respective
brokers under the margin provisions of customer agreements. If a Selling Shareholder
defaults on a margin loan, the broker may, from time to time, offer and sell the pledged
shares of Common Stock. The Selling Shareholders and any other persons participating in
the sale or distribution of the shares will be subject to applicable provisions of the
Exchange Act, and the rules and regulations under such act, including, without limitation,
Regulation M. These provisions may restrict certain activities of, and limit the timing of
purchases and sales of any of the shares by, the Selling Shareholders or any other such
person. The Selling Shareholders is not permitted to engage in short sales of Common
Stock. Furthermore, under Regulation M, persons engaged in a distribution of securities
are prohibited from simultaneously engaging in market making and certain other activities
with respect to such securities for a specified period of time prior to the commencement
of such distributions, subject to specified exceptions or exemptions. All of these
limitations may affect the marketability of the shares.
Page 20
General
We are authorized to issue an aggregate number of
510,000,000 shares of capital stock, $0.0001 par value per share, consisting
of 10,000,000 shares of Preferred Stock and 500,000,000 shares of Common
Stock.
Preferred Stock
We are authorized to issue 10,000,000 shares of Common
Stock, $0.0001 par value per share. As of July 19, 2016, no preferred shares
issued and outstanding. The Board of Directors has the authority to
establish one or more series of Preferred Stock and fix relative rights and
preferences of any series of Preferred Stock.
Common Stock
We are authorized to issue 500,000,000 shares of Common
Stock, $0.0001 par value per share. As of July 19, 2016, we had
7,467,013
shares of Common Stock issued and outstanding.
Each share of Common Stock shall have one (1) vote per
share for all purpose. Our Common Stock does not provide a preemptive,
subscription or conversion rights and there are no redemption or sinking
fund provisions or rights. Our Common Stock holders are not entitled to
cumulative voting for election of Board of Directors.
Dividends
We have not paid any cash dividends to our shareholders.
The declaration of any future cash dividends is at the discretion of our
board of directors and depends upon our earnings, if any, our capital
requirements and financial position, our general economic conditions, and
other pertinent conditions. It is our present intention not to pay any cash
dividends in the foreseeable future, but rather to reinvest earnings, if
any, in our business operations.
Transfer Agent and Registrar
The transfer agent of our Common Stock is Transfer
Online, 512 SE Salmon Street, Portland, OR 97214-3444, Phone: (503)
227-2950.
Page 21
No expert or counsel named in this Prospectus as having prepared or
certified any part of this Prospectus or having given an opinion upon the validity of the
securities being registered or upon other legal matters in connection with the
registration or Offering of the Common Stock was employed on a contingency basis, or had,
or is to receive, in connection with the Offering, a substantial interest, direct or
indirect, in the registrant. Nor was any such person
connected with the registrant as a promoter,
managing or principal underwriter, voting trustee, director, officer, or employee.
Thomas J. Craft, Jr., Esq., P.O. Box 4143, Tequesta FL 33469, will pass on the validity of the Common Stock being offered pursuant to
this Registration Statement.
The unaudited interim period financial statements for the
period ended March 31, 2016 and the audited financial statements for the years ended December 31, 2015 and 2014 included in
this Prospectus and the Registration Statement have been audited by M&K CPAS, PLLC, an
independent registered public accounting firm, to the extent and for the periods set forth
in their report appearing elsewhere herein and in the Registration Statement, and are
included in reliance upon such report given upon the authority of said firm as experts in
auditing and accounting.
We filed this Registration Statement on Form S-1 with the SEC under the Act with
respect to the Common Stock offered by Selling Shareholders in this Prospectus. This
Prospectus, which constitutes a part of the Registration Statement, does not contain all
of the information set forth in the Registration Statement or the exhibits and schedules
filed therewith. For further information with respect to us and our Common Stock, please
see the Registration Statement and the exhibits and schedules filed with the Registration
Statement. Statements contained in this Prospectus regarding the contents of any contract
or any other document that is filed as an exhibit to the Registration Statement are not
necessarily complete, and each such statement is qualified in all respects by reference to
the full text of such contract or other document filed as an exhibit to the Registration
Statement. The Registration Statement, including its exhibits and schedules, may be
inspected without charge at the public reference room maintained by the SEC, located at
100 F Street, N.E., Room 1580, Washington, D.C. 20549, and copies of all or any part of
the Registration Statement may be obtained from such offices upon the payment of the fees
prescribed by the SEC. Please call the SEC at 1-800-SEC-0330 for further information about
the public reference room. The SEC also maintains an Internet website that contains
reports, proxy and information statements and other information regarding registrants that
file electronically with the SEC. The address of the site is
www.sec.gov
.
Page 22
Corporate Developments Since Inception
The Company was incorporated in Delaware on February 12, 2010 under the
name Solarflex Corp. for the purpose of developing, manufacturing and
selling a solar photovoltaic element, a device that converts light into
electrical flow (also known as a photovoltaic cell) based on certain
proprietary technology to enable an increase in solar energy conversion and
provide energy at a lower cost. Since inception through April 11, 2016, the
Company did not generate any revenues.
On March 10, 2010, the Company entered into an
agreement with an unaffiliated third party to purchase all right, title, and
interest in a patent application for the design
and manufacturing of a solar photovoltaic element (the "Patent Agreement")
in consideration for our agreement to pay the seller an amount equal to 10%
of the royalties that generated from our commercial exploitation of the
technology.
On May 14, 2013, the Company entered into an Asset Purchase Agreement
with International Executive Consulting SPRL, organized under the laws of
Belgium ("IEC"), for the purchase of certain equipment (the "Equipment") to
be used in the development and manufacture of our photovoltaic cell, in
consideration for a cash payment of $30,000 and the issuance of 2 million
restricted shares of common stock valued at $180,000
or $.90 per share, representing approximately 44% of our outstanding Common
Stock at May 14, 2013.
Our business plan was to use the
Equipment to: (i)
develop a working prototype of our photovoltaic cell for testing and
evaluation; (ii) enter into arrangements with third parties for a
manufacturing process to produce the photovoltaic elements for sale to solar
panel producers; and (iii) enter into distribution agreements for the
commercial sale of our products.
From the date of the Asset Purchase Agreement through mid 2015, the
Equipment was not in working order, nor was there any estimated timeline for
our ability to use the Equipment to manufacture of photovoltaic cells
exploiting our solar panel technology. As a result, we determined that it
was not in the best interests of the Company or its shareholders to continue
to devote resources towards efforts to commercially exploit our photovoltaic
cell technology through the use of the Equipment or otherwise.
We did not generate any revenues from the sale of any solar
photovoltaic element, nor did we successfully manufacturer or construct a
working prototype. We
determined during the 4th quarter of 2015 to evaluate potential business
opportunities.
On November 10, 2015, the Company entered into an Asset Purchase
Rescission Agreement with IEC (the "Rescission Agreement") pursuant to
which: (i) we transferred and assigned all right, title and interest in the
Equipment back to IEC; (ii) IEC returned 333,333 of the 2,000,000
Shares back to the Company; (iii) IEC transferred and assigned the remaining
1,666,667 Shares to Mr. Edwin Witarsa Ng, a resident of Indonesia, who was
appointed as Chairman of our Board of Directors, in consideration for a cash
payment by Mr. Ng of $20,000 to IEC. The rationale for the Rescission
Agreement was based upon the Registrant's determination not to pursue the
use and commercial exploitation of the Equipment in furtherance of its
former solar energy business plan.
Recent Developments as Kinerja Pay Corp.
On December 1, 2015, the Company entered into a
license agreement (the "License Agreement") with PT Kinerja Indonesia, an
entity organized under the laws of Indonesia and controlled by Mr. Ng ("PT
Kinerja"), for an
exclusive, world-wide license to use and commercially exploit certain
technology and intellectual property (the "KinerjaPay IP") and its website,
KinerjaPay.com. Pursuant to the License Agreement, the Company was granted
the exclusive, world-wide rights to the KinerjaPay IP, an e-commerce
platform that provides users with the convenience of e-wallet service for
bill transfer and online shopping having advanced functionality features,
among others, and is among the first portals to allow users the convenience
to top-up phone credit, in consideration for the payment of royalties. The
Company effectively acquired and commenced commercially exploiding its
intellectual properties during the second quarter of 2016. The Company
intends to continually develop its intellectual property.
In furtherance of our business plan, we agreed in the License Agreement to: (i) change the name of the
Company to KinerjaPay Corp.; (ii) implement a reverse split of the Company's
shares of common stock on a one-for-thirty (1:30) basis; and (iii) raise
equity capital in the minimum offering amount of $500,000 and the maximum
offering amount of $2,500,000 through the offering of units at a price of
$0.50, each Unit, each consisting of 1 share of common stock
and 1 class A warrant exercisable for a period of 24 months to purchase 1
additional share of common stock at $1.00. The Unit Offering is
only being made to "accredited investors" who are not U.S. Persons pursuant
to Regulation S promulgated by the SEC under the Securities Act of 1933, as
amended (the "Act"). On January 20, 2016, the Company closed the Minimum
Offering after it received subscription proceeds in excess of $500,000. To
date, the Company has raised $905,000 pursuant to the Unit Offering, which
is continuing.
As of March 10, 2016, the Company's name change to KinerjaPay Corp.
and its one-for-thirty (1:30) reverse stock split became effective.
On April 6, 2016, P.T. Kinerja Pay
Indonesia, the Registrant's subsidiary (the "Subsidiary"), was organized
under the laws of Indonesia. On April 11, 2016, the subsidiary established a
bank account at Bank OCBC NISP, a publicly listed banking and financial
institution traded on the Indonesia Stock Exchange and, on the same date,
the Registrant transferred US$400,000 from its United States bank account,
maintained at JP Morgan Chase Bank to its Subsidiary's account at Bank OCBC
NISP to commence funding the e-commerce operations of the Subsidiary using
the KinerjaPay IP.
Page 23
Our E-Commerce Portal KinerjaPay.com
Our principal products and services are: (i) our
electronic payment service (the "EPS"); and (ii) our virtual marketplace
(the "Marketplace") both of which
are available on our portal under the domain name KinerjaPay.com (the
"Portal").
Our Android-based mobile app not only
serves as an extension of desktop or laptop access to our website, but has additional
in-app services that cater to mobile users, such as social engagement and
digital entertainment (the "Mobile App").
We believe that in
combining our EPS function
("PAY") with the ability to buy and sell products via our
virtual marketplace ("Buy") enhanced by a
gamification component ("Play")
our customers and merchants are enticed to return more often and increase their loyalty to our
services.
From December 1, 2015, the date we acquired the
exclusive license, until April 11, 2016, the date that our Indonesian
subsidiary was formed and we opened a bank account to conduct our operations
in Indonesia, we were engaged in capital raising activities to fund our
e-commerce business operations and generated no revenues. Specifically,
since we commenced actual business operations as opposed to capital raising
activities. We expect to generate revenues from sales of our Portal services
during the second quarter of 2016.
Our Electronic Payment Service
Through our Portal and
Mobile App we provide EPS to
consumers and merchants. Our EPS provides an affordable,
secure and reliable method to consumers and merchants, as well as friends and family,
to pay and transfer money using electronic devices (e.g., mobile, tablets
and personal
computers). In addition, consumers, merchants
and
businesses of all sizes can accept payments from merchant websites and
mobile devices. Our EPS service enables
consumers to conveniently pay utility
bills, phone
bills, credit card payments and add credit
to their cell phone accounts.
We developed a
proprietary digital e-wallet software, which provides users with the ability to
complete EPS transactions safely and
conveniently. The e-wallet acts as an escrow account as payments will
only be released to the seller once the buyer has received the product.
We pay transaction fees as follows: (i) 3.9% + $0.30
when senders fund payment transactions using PayPal; (ii) no fees when
customers fund payment transactions by electronic transfer of funds from
a bank accounts; and (iii) fees of $0.25 to $0.50 per transaction if
customers fund payment transactions by using a third party payment
gateway. To date, 5%, 95% and 0%, respectively, of our fees are
represented by transactions (i), (ii) and (iii), respectively. Our
ability to successfully implement our business plan is dependent upon a
preponderance of transactions being conducted by electronic transfer of
funds from bank accounts.
As a result of our
implementation, consistent with good security practices, of firewall,
DDOS management and intrusion detection system (IDS/IPS) and our
GeoTrust Certificate in which all transactions are protected by 256-bit
encryption SSL connectivity, together with 2FA (two factor
authentication) by using soft token to increase security in any payment
transaction, we believe that we can ensure the safety and reliability of
our services. To date, we have incurred expenses of approximately
$33,000 in implementing requisite security features and expect that we
will have to expend an additional $67,000 during the next 12 months to
implement and maintain our security features.
During the year 2016, we plan to add
person-to-person EPS options to enable the
portion of consumers who have neither bank accounts nor credit and/or
debit cards to make payments via our Portal and Mobile App. We believe,
based upon published information, that approximately 36% of the
Indonesian population has currently no bank account and these persons
represent a significant target market of potential users for our EPS.
Page 24
Based on data from Alex.com, a website analytics
provider, our customers spend an average of 30 minutes on our Portal ,
which we believe is partly due to our unique gamification features. We
believe this opens potentially significant opportunities for additional
monetization and enhanced revenues. We plan to expand our Portal
functionality to offer advertising packages to our merchants and
partners. We intent to engage mobile publishers such as Google and
Facebook to use our Portal as channel for advertising.
We provide our customers with the option of using their account at
our Portal to both purchase and be paid for goods, as well as transfer
and withdraw funds. We provide our consumers with the capability of
funding a purchase using a bank account, a credit or debit card account.
We offer merchants an end-to-end payments solution that provides
authorization and settlement capabilities. Our services provide
merchants with the ability to connect with their customers and manage
and hopefully minimize their collection risk.
Our Virtual Marketplace
We launched our virtual marketplace in 2015 as a free
platform for buyers to explore and discover products and sellers to
establish a low-cost online presence for their product. We link buyers and sellers of various products
in our local Indonesian market.
We organized and designed our Marketplace using our proprietary software
to enable sellers to offer their products for sale and buyers to find
and buy it virtually at great value anytime. Our
Marketplace includes a "Max 3-Steps" concept to streamline the shopping
experience. Users need just choose an item, check out and make payment
using an e-wallet function aimed accelerating the check out procedure
and making the shopping experience more convenient.
We believe that our
Marketplace provides our customers with a safe and convenient way to
purchase whatever they are looking for in their local vicinity or
nationwide.
Users may access our Marketplace anytime, anywhere
through traditional devices such as desktop and laptop computers or from
devices such as Smartphones and tablets using our Mobile App or our mobile-optimized
website. As of March 31, 2016, we had over 14,900 items listed for sale
on our Marketplace platform, which we believe makes us a leading online
marketplace in Indonesia.
In addition to a typical online marketplace that offers a broad range of products, we try to differentiate
ourselves by focusing on computer related products as well as
mobile phone prepaid vouchers utilized by approximately 98% of Indonesia
mobile users representing a prepaid voucher market size of approximately
US$4B according to research conducted by AdPlus, a leading digital media
network in Indonesia.
Our EPS service and Marketplace combine enhanced functionality and gamification, which
incorporates game-design elements and game
principles in non-game contexts for the purpose of keeping our users more
often and longer engaged with our services.
We are expanding our Marketplace to include more items
and more creative ways to attract customers in spending and exchanging their
goods. More proprietary games will be offered with more attractive
bonuses that can later be used to redeem in our Marketplace. We believe
that our gamification component will entice consumers to return and
increase their loyalty to our Portal and Marketplace.
Our Market Opportunity in Indonesia
Indonesia, the world's fourth most-populous country, having a population
estimated to be 255 million people, is rapidly becoming the major economic
power in the Southeast Asia region. Over 50% of its population is below the
age of 30 and as a result, we believe that the young Indonesian population is highly adaptive to
new technology. Indonesia's e-commerce growth rate has built-in factors such
as fast increase in year-to-year internet users and rapidly growing
discretionary spending among the middle class. In addition, the rise of
cheap Smartphones and tablets that sell for less than US$100 is rapidly
broadening internet access and pushing the nascent Indonesian e-commerce
market toward a critical point in terms of scale and profitability, in spite
of significant challenges due to poor infrastructure and payment systems.
We believe that due to the aforementioned
factors , among others, Indonesia will experience significant growth in
e-commerce transactions. The number of internet users is excepted to double to
125 million by 2017 and Smartphone ownership is to rise from 20 per cent to
52 per cent in the same period,
the
highest percentage compared to other Southeast Asian countries,
according to Redwing, an advisory group located in Singapore.
The e-commerce market in Indonesia, where our business
operates and where our initial marketing efforts will be focused, is reported to be the fastest
growing in the Southeast Asian region. According to a joint report released
by idEA, Google Indonesia, and Taylor Nelson Sofres (TNS), e-commerce market
in Indonesia are expected to surpass US$25 billion in 2016.
Sales and Marketing
Our primary
marketing focus will be to emphasize our key differentiator which we believe
is combining our EPS
option PAY with the ability to buy and sell products via our
Marketplace BUY enhanced by a gamification component PLAY,
which entices consumers to return and increase their loyalty to our Portal
and Marketplace.
Page 25
Our Kinerja.com platform was launched in
February 2015 but has already achieve significant market
acceptance evidenced by more than 13,000 users/customers and
more than 78,000 e-commerce transactions in 2015.
Beginning in 2016, we commenced a nationwide marketing
campaign to promote Kinerjapay.com
as Portal and Marketplace to Indonesian consumers and merchants. We use
marketing techniques such as advertising on Facebook®, YouTube®, Twitter®, AdWords®,
AdChoices® and Instagram®. We also contemplate using other marketing
programs such as sale promotions, special deals, daily bonus, SMS and
email promotion, events at malls and other creative sales and marketing
techniques.
We developed a referral program called MGM -
Member Get Member, which is aimed at
incentivizing current members to refer our platform to friends
and family. In addition, we used venues such as online business
workshops, promotional stands in shopping malls to
acquire new merchants.
However, there can be no assurance that our marketing
practices will continue to be successful, notwithstanding any market
awareness we have achieve to date.
Patents, Trademarks, Intellectual Property, Licenses
We entered
into a License Agreement with PT Kinerja Indonesia, a
company incorporated under
the laws of Indonesia and controlled by Mr. Ng, our CEO and controlling
shareholder.
Pursuant to the License Agreement, we have been
granted the license on an exclusive, world-wide basis to commercially
exploit the KinerjaPay IP and its e-commerce payment portal website,
www.KinerjaPay.com, which contains application codes, infrastructure
architecture, infrastructure design and processes/sub-processes.
Specifically, our proprietary technologies and intellectual property
includes: integrated proprietary payment solutions, built-in marketplace
and gamification concepts and modules. The License is in perpetuity but
may be terminated by either the Company or PT Kinerja Indonesia if there
is a material breach of any representation, warranty, covenant or
agreement and the other party is not in material breach.
The success of our business is depended on the
effectiveness of this License Agreement.
We are a licensee and expect to
be a licensee in the
future.
We regard the
protection of our intellectual property, including our propriety
technology, domain
name, customer base and trade secrets as critical to our success. We
aggressively protect our intellectual property rights by relying on
the laws in Indonesia and internationally, as
well as a variety of administrative procedures. We also rely on
contractual restrictions to protect our proprietary rights in products
and services. We routinely enter into confidentiality agreements with our employees and contractors and
nondisclosure agreements with parties with whom we conduct business to
limit access to and disclosure of our proprietary information.
We plan to
register our domain name internationally. We intent to file
international patent applications covering certain aspects of our
proprietary technology. In general, effective protection of trademark, copyright, patent, domain
name, trade dress and trade secret protection is typically expensive to
achieve, maintain and may require litigation. As we expand our markets,
we must protect our intellectual
property rights and other proprietary rights in an increasing number of
jurisdictions, a process that is expensive and time consuming and may
not be successful. If we are unable to register or protect
our domain name, we could be adversely affected in any
jurisdiction in which our trademarks or domain names are not registered
or protected.
From time to time,
third parties may claim that we have infringed their intellectual property rights.
The listing or sale by our users of items that allegedly infringe the
intellectual property rights of rights owners, including pirated or
counterfeit items, may harm its business.
Sources and availability of required
equipment and bandwidth
The Company's wholly-owned subsidiary PT Kinerja Pay
Indonesia has
engaged PT Kinerja Indonesia, our Licensor,
to provide all necessary R&D, technical support, servers, procurement/logistic and IT
operational services, equipment bandwidth and other technology support.
Dependence on one or a few major customers
Our e-commerce portal is primarily used by
individual customers. The company is not dependency on any dominant
customers.
Research and Development
In 2015,
we commenced, through
PT Kinerja Indonesia, our Licensor,
developing a
proprietary Beta version utilizing software programmers in Indonesia. Our
research and development resulted in our launching of the beta version of
our KinerjaPay website, in addition to an android-based mobile version. We
continue to improve the functionality of our KinerjaPay website and expect
to incur costs related to expanding our servers capacity, network
infrastructure, data center, and other security products.
Page 26
Competition
We face
intense competition in our business from numerous venues. We will need to
continue to invest significant resources in technology and marketing to
compete effectively. These expansions will require substantial expenditures,
which may reduce our margins and may have a material adverse effect on our
business, financial position, operating results and cash flows and reduce
the market price of our common stock. Some competitors may have other
alternative revenue sources and may therefore be able to allocate more
resources to marketing, adopt more competitive fees and devote more
resources to website, mobile platforms and applications and systems
development than we can. Our competitors may be able to innovate faster and
more efficiently, and new technologies may increase the competitive
pressures if competitors offer more efficient or lower-cost services.
We believe that we have a better understanding
of the local culture and commerce in Indonesia than foreign competitors. We
also believe that one of our unique competitive advantage is to better be
able to operate under local regulatory authorities.
Customers
can use competing online, mobile and offline channels including but not
limited to, retailers, catalog and classifieds. Online shopping comparison
websites (e. g. Shopping.com, Rakuten, Nextag.com, Pricegrabber.com,
Shopzilla,) allow consumers to search the Internet for specified products.
We plan to use search engines and paid search advertising to help potential
customers find our website, but those sites may also send users to other
shopping destinations.
We mainly compete on the basis of price, product
selection and services. In addition, we face the following principal
competitive factors:
- ability to attract, retain and engage buyers
and sellers;
The e-commerce
market in Indonesia has become
very active only during the past several years with a few major companies
that were funded by big institutional investors. To a lesser extent, there
are local and a few regional companies that have entered the e-commerce
market. The products being offered in the marketplace have typically been
physical items across few different categories such as electronics and
gadgetry, fashion items and household goods. These e-commerce entities
typically are charging transaction fees of from 2% to 5% per transaction.
There has been a recent surge in competitors that
focus on specific items or industries such as travel, fashion or consumable goods. At present, there are
relatively few competitors operating in the market segments we
operate, especially in mobile phone prepaid top up vouchers, a segment in
which we may be one of the first and hope to be able to maintain our market dominate.
We believe to be our fee structure to be very completive.
The also face intense competition for our
electronic payment solution service from alternative payment gateways and
comparable payment solution services that are provided by banks or telecommunication
companies. These are typically stand-alone providers and depend on other
marketplace platform to generate their payment or transaction service. We
believe to differentiate ourselves by
offering online transaction services with
e-wallet features and our own Marketplace.
We may be unable to compete successfully against
current and future competitors. Some current and potential competitors have
longer operating histories, larger customer bases and greater brand
recognition in other business and Internet sectors than we do.
Government Regulation
There are currently few laws or regulations in
Indonesia that are specifically related to the sale of goods and services on
the Internet.
We
currently are subject to Indonesian regulations in our role as money
transfer agent and are therefore subject to Indonesian electronic fund
transfer and money laundering regulations.
We received the requisite GeoTrust
Certificate in March 2014 in which entire user transactions have been
protected by 256-bit encryption. This is understood to provide a safe platform for
online transaction.
We believe to be in
compliance with all existing Indonesian governmental regulations
applicable to e-commerce operator that facilitate online transactions
between sellers and buyers.
Any application of existing laws and regulations
related to banking, currency exchange, online gaming, electronic
contracting, consumer protection and privacy is at present unclear. Our
potential liability in case our customers are in violation of any applicable
laws on pricing, taxation, impermissible content, intellectual property
infringement, unfair or deceptive practices or quality of services is also
unclear. In addition, we may become subject to new laws and regulations
directly applicable to the Internet or our specific e-commerce activities.
Any existing or potential new legislation applicable to specific e-commerce
activities could expose us to substantial liability, including significant
expenses necessary to comply with these laws and regulations, and reduce
and/or limit the use of the Internet on which we depend.
An increase in the taxation of e-commerce
transactions may make the Internet less attractive for consumers and
businesses, which could have a material adverse effect on our business,
results of operations and financial condition.
To date, we have not incurred any expenses
related to us being in compliance with any governmental laws in Indonesia
pertaining to the use of our e-commerce portal as a payment option for
online shopping and other transactions.
Employees
Mr. Edwin Witarsa Ng, CEO and Chairman and
Fransiscus Budi Pranata, our
CFO, constitute our Management team. They are not obligated to contribute any specific number of hours per week to our operations and intent to
devote only as much time as they deem necessary to the Company's affairs until such time that we
generate significant revenues. We have not entered into
employment agreements with Mr. Ng and Mr. Pranata.
PT Kinerja Indonesia, our
Licensor and controlled by Mr. Ng, provides all necessary R&D, technical
support, procurement/logistic and IT operational services and other
technology support needed to operate our Portal. PT Kinerja Indonesia
currently has 40 employees and plans to increase its staff to up to 80
people by end 2016 to manage our increasing transaction volume. In addition,
PT KinerjaPay, our
Indonesian subsidiary, is expected to hire approximately 5 employees,
principally dedicated to our sales, marketing and billing and collection
activities. The Company believes, based upon the availability of
highly-skilled technical and sales people in Indonesia, that its Licensor will
encounter no difficulties to hire and retain the personnel required to
fulfill these positions.
Our employees and the employees of our
contractor
PT Kinerja Indonesia are not
subject to any collective bargaining agreement.
Transfer Agent
Our stock transfer agent is Transfer Online, Inc.,
with offices located at 512 SE Salmon Street, Portland, OR 97214. Their
telephone number is (503) 227 2950, their fax number is (503) 227 6874, and
their website is transferonline.com.
Page 28
Our principal office is located at J1. Multatuli,
No. 8A, Medan, Indonesia 20151. Our telephone number is +62-819-6016-168. Our
offices consist of approximately 4,000 square feet of executive offices and
sales and marketing space, are provided to us on a rent-free basis by PT Kinerja
Indonesia and we believe that these facilities will be sufficient for the
next twelve months.
There are no pending legal proceedings to which the Company is a party or in which any Director, officer or affiliate of the Company, any owner of record or beneficially of more than 5% of any class of voting securities of the Company, or security holder is a party adverse to the Company or has a material interest adverse to the Company. The Company's property is not the subject of any pending legal proceedings.
Market Information
Our common stock is quoted on the OTCQB Market under the symbol
KPAY, an inter-dealer automated quotation system for equity securities not included on The Nasdaq Stock Market. Quotation of the Company's securities on the
OTCQB Market limits the liquidity and price of the Company's common stock more than if the Company's shares of common stock were listed on The Nasdaq Stock Market or a national exchange. For the periods indicated, the following table sets forth the high and low bid prices per share of common stock. The below prices represent inter-dealer quotations without retail markup, markdown, or commission and may not necessarily represent actual transactions. The information below has been adjusted for a one-for-thirty (1:30)
reverse split effective March 10, 2016.
Fiscal 2015
Fiscal 2014
Fiscal 2013
High
Low
High
Low
High
Low
First Quarter ended
March 31
$
0.15
$
0.12
$
0.15
$
0.12
$
0.18
$
0.10
Second Quarter ended
June 30
$
0.14
$
0.12
$
0.14
$
0.12
$
0.18
$
0.10
Third Quarter ended
September 30
$
0.17
$
0.12
$
0.17
$
0.12
$
0.10
$
0.10
Fourth Quarter ended
December 31
$
0.16
$
0.04
$
0.16
$
0.04
$
0.11
$
0.10
Holders
As of July 19, 2016, there were 7,467,013 common shares issued and outstanding, which were held by
36 stockholders of record.
Dividends
We have never declared or paid any cash dividends on our common stock nor do we anticipate paying any in the foreseeable future.
We expect to retain any future earnings to finance our operations and expansion. The payment of cash dividends in the future will be at the discretion of our Board of Directors and will depend upon our earnings levels, capital requirements, any restrictive loan covenants and other factors the Board considers relevant.
Equity Compensation Plans
We do not have any equity compensation plans.
Sale of Unregistered Securities
The
following tables and information sets forth all securities of the
Registrant
issued and sold within the past three years which were not registered under the Act.
(1) The principal of L & L Holdings S.R.L. is
Ruiz Diaz Rolon
Rosa, a resident of Argentina.
In November 2015, the Registrant issued restricted
shares upon the conversion of convertible notes to the accredited investors set
forth below.
The Registrant
issued the original fourteen convertible notes totaling the principal amount of
$122,000 and accrued interest of $21,609 between July 2013 and
October 2015 for a total of $143,604. The notes were converted at a price of $0.30 per share. Each of the
individuals listed in the table represented to the Registrant their
status as "accredited investors."
On the dates set forth in the table below, the Registrant issued and sold
restricted securities to the individuals and entities in the table below in
reliance upon the exemptions provided in Section 4(2) of the Securities Act
of 1933, as amended (the "Act") and in reliance upon Regulation S or, in the
instance of one individual, Regulation D, promulgated by the United States
Securities and Exchange Commission under the Act. The shares of the
Registrant's common stock, par value $0.0001 (the "Shares") issued pursuant
to the Subscription Agreements were pursuant to a Unit Offering, each
consisting of one Share and one Class A Warrant exercisable to purchase one
additional Share at $1.00 for a period of 24 months.
(1) The 1,333,333 Shares issued to PT Kinerja Indonesia
pursuant to a Services Agreement dated February 19, 2016, a copy of which is
filed as an exhibit 10.7 to the Company's Form 8-K on March 23, 2016, do not vest until eighteen months
from that date but do have voting rights on all matters submitted to the
vote of the Registrant's shareholders.
Page 30
The Registrant issuance of the above restricted Shares was in reliance upon the
exemption from registration pursuant to Section 4(2) and Regulation S
promulgated by the SEC under the Act.
The Registrant's acceptance of the above note and restricted share subscriptions
and the issuances of restricted shares immediately after the Effective Date were
in reliance upon the exemption from registration pursuant to Section 4(2) of the
Act and Regulation S promulgated by the SEC under the Act with respect to all
Investors except for those persons designated as U.S. residents. With respect to
the U.S. Investors, the Registrant relied upon exemption from registration
pursuant to Section 4(2) of the Act and Regulation D promulgated by the SEC
under the Act.
Purchases of Equity Securities by the Small Business Issuer and Affiliated Purchasers
We retired 333,333 shares of our common stock during the fiscal year ended December 31, 2015.
Penny Stock Considerations
Our Common Stock will be deemed to be "penny stock" as that
term is generally defined in the Securities Exchange Act of 1934 to mean equity securities
with a price of less than $5.00. Our shares thus will be subject to rules that impose
sales practice and disclosure requirements on broker-dealers who engage in certain
transactions involving a penny stock.
Under the penny stock regulations, a broker-dealer selling a penny
stock to anyone other than an established customer or accredited investor must make a
special suitability determination regarding the purchaser and must receive the purchaser's
written consent to the transaction prior to the sale, unless the broker-dealer is
otherwise exempt. Generally, an individual with a net worth in excess of $1,000,000 or
annual income exceeding $100,000 individually or $300,000 together with his or her spouse
is considered an accredited investor. In addition, the
broker-dealer is required to:
Deliver, prior to any transaction involving a penny
stock, a disclosure schedule prepared by the SEC relating to the penny stock market,
unless the broker-dealer or the transaction is otherwise exempt;
Because of these regulations, broker-dealers may encounter difficulties
in their attempt to buy or sell shares of our Common Stock, which may affect the ability
of Selling Shareholders or other holders to sell their shares in the secondary market and
have the effect of reducing the level of trading activity in the secondary market. These
additional sales practice and disclosure requirements could impede the sale of our Common
Stock even if our Common Stock becomes publicly traded. In addition, the liquidity for our
Common Stock may be decreased, with a corresponding decrease in the price of our Common
Stock. Our shares are likely to be subject to such penny stock rules for the foreseeable
future.
Page 31
ASSETS
LIABILITIES
AND STOCKHOLDERS' DEFICIT
KINERJAPAY CORP.
1. The Company and Significant Accounting Policies
Organizational Background
KinerjaPay Corp. (formerly Solarflex Corp. ) ("KinerjaPay" or the "Company") is a Delaware corporation
and has not commenced operations. The Company was incorporated under the
laws of the State of Delaware on February 12, 2010. The business plan of the
Company was to develop a commercial application of the design in a patent of
a "Solar element and method of manufacturing the same". On November 10, 2015
this plan was abandoned and all related contracts and agreements rescinded.
On December 1, 2015, the Company entered into a license agreement with PT
Kinerja Indonesia, an entity organized under the laws of Indonesia and
controlled by Mr. Ng ("PT Kinerja"), for an exclusive, world-wide license to
use and commercially exploit certain technology and intellectual property
and its website, KinerjaPay.com. Pursuant to the License Agreement, the
Company was granted the exclusive, world-wide rights to the KinerjaPay IP,
an e-commerce platform that provides users with the convenience of e-wallet
service for bill transfer and online shopping and is among the first portals
to allow users the convenience to top-up phone credit. In conjunction with
the agreement the company changed its name from Solarflex Corp. to
KinerjaPay Corp.
The accompanying financial statements of the Company were prepared from
the accounts of the Company under the accrual basis of accounting.
Basis of Presentation: The accompanying financial statements have been
prepared in conformity with accounting principles generally accepted in the
United States of America, which contemplate continuation of the Company as a
going concern. The Company has not established any source of revenue to
cover its operating costs, and as such, has incurred an operating loss since
inception. Further, as of March 31, 2016, the cash resources of the Company
were insufficient to meet its current business plan. These and other factors
raise substantial doubt about the Company's ability to continue as a going
concern. The accompanying financial statements do not include any
adjustments to reflect the possible future effects on the recoverability and
classification of assets or the amounts and classification of liabilities
that may result from the possible inability of the Company to continue as a
going concern.
Significant Accounting Policies
Use of Estimates: The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date
of the financial statement and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from the estimates.
Cash and Cash Equivalents
For financial statement presentation purposes, the Company considers
those short-term, highly liquid investments with original maturities of
three months or less to be cash or cash equivalents. There were no cash
equivalents as of March 31, 2016 and December 31, 2015.
Property and Equipment
New property and equipment are recorded at cost. Depreciation is computed
using the straight-line method over the estimated useful lives of the
assets, generally 5 years. Expenditures for renewals and betterments are
capitalized. Expenditures for minor items, repairs and maintenance are
charged to operations as incurred. Gain or loss upon sale or retirement due
to obsolescence is reflected in the operating results in the period the
event takes place.
Valuation of Long-Lived Assets
We review the recoverability of our long-lived assets including
equipment, goodwill and other intangible assets, when events or changes in
circumstances occur that indicate that the carrying value of the asset may
not be recoverable. The assessment of possible impairment is based on our
ability to recover the carrying value of the asset from the expected future
pre-tax cash flows (undiscounted and without interest charges) of the
related operations. If these cash flows are less than the carrying value of
such asset, an impairment loss is recognized for the difference between
estimated fair value and carrying value. Our primary measure of fair value
is based on discounted cash flows. The measurement of impairment requires
management to make estimates of these cash flows related to long-lived
assets, as well as other fair value determinations.
Stock Based Compensation
Stock-based awards are accounted for using the fair value method in
accordance with ASC 718, Share-Based Payments. Our primary type of
share-based compensation consists of stock options. We use the Black-Scholes
option pricing model in valuing options. The inputs for the valuation
analysis of the options include the market value of the Company's common
stock, the estimated volatility of the Company's common stock, the exercise
price of the warrants and the risk free interest rate.
Accounting For Obligations And Instruments Potentially To Be Settled In
The Company's Own Stock: We account for obligations and instruments
potentially to be settled in the Company's stock in accordance with FASB ASC
815, Accounting for Derivative Financial Instruments. This issue addresses
the initial balance sheet classification and measurement of contracts that
are indexed to, and potentially settled in, the Company's own stock.
Fair Value of Financial Instruments
FASB ASC 825, "Financial Instruments," requires entities to disclose the
fair value of financial instruments, both assets and liabilities recognized
and not recognized on the balance sheet, for which it is practicable to
estimate fair value. FASB ASC 825 defines fair value of a financial
instrument as the amount at which the instrument could be exchanged in a
current transaction between willing parties. At March 31, 2016 and
December 31, 2015, the carrying value of certain financial instruments (cash
and cash equivalents, accounts payable and accrued expenses.) approximates
fair value due to the short-term nature of the instruments or interest
rates, which are comparable with current rates.
Fair Value Measurements
The Company measures fair value under a framework that utilizes a fair
value hierarchy that prioritizes the inputs to valuation techniques used to
measure fair value. The hierarchy gives the highest priority to unadjusted
quoted prices in active markets for identical assets or liabilities (level 1
measurements) and the lowest priority to unobservable inputs (level 3
measurements). The three levels of inputs which prioritize the inputs used
in measuring fair value are:
Level 1: Inputs to the valuation methodology are unadjusted quoted prices
for identical assets or liabilities in active markets that the Company has
the ability to access.
Level 2: Inputs to the valuation methodology include:
- Quoted prices for similar assets or liabilities in active markets;
If the asset or liability has a specified (contractual) term, the level 2
input must be observable for substantially the full term of the asset or
liability.
Level 3: Inputs to the valuation methodology are unobservable and
significant to the fair value measurement.
The assets or liability's fair value measurement level within the fair
value hierarchy is based on the lowest level of any input that is
significant to the fair value measurement. Valuation techniques used need to
maximize the use of observable inputs and minimize the use of unobservable
inputs. The following table presents assets that were measured and recognize
at fair value on March 31, 2016 and December 31, 2015 and the year periods
ended on a recurring basis:
When the Company changes its valuation inputs for measuring financial
assets and liabilities at fair value, either due to changes in current
market conditions or other factors, it may need to transfer those assets or
liabilities to another level in the hierarchy based on the new inputs used.
The Company recognizes these transfers at the end of the reporting period
that the transfers occur. For the fiscal periods ended March 31, 2016 and
December 31, 2015, there were no significant transfers of financial assets
or financial liabilities between the hierarchy levels.
Earnings per Common Share
We compute net income (loss) per share in accordance with ASC
260, Earning per Share. ASC 260 requires presentation of both basic and
diluted earnings per share (EPS) on the face of the income statement. Basic
EPS is computed by dividing net income (loss) available to common
shareholders (numerator) by the weighted average number of shares
outstanding (denominator) during the period. Diluted EPS gives effect to all
dilutive potential common shares outstanding during the period using the
treasury stock method and convertible preferred stock using the if-converted
method. In computing Diluted EPS, the average stock price for the period is
used in determining the number of shares assumed to be purchased from the
exercise of stock options or warrants. Diluted EPS excludes all dilutive
potential shares if their effect is anti-dilutive.
Common Stock Split
On January 20, 2016, we declared a reverse split of our common stock. The
formula provided that every thirty (30) issued and outstanding shares of
common stock of the Corporation be automatically split into one (1) share of
common stock. Except as otherwise noted, all share, option and warrant numbers have
been restated to give retroactive effect to this split, which became
effective on March 10, 2016. All per share
disclosures retroactively reflect post-split shares.
Income Taxes
We have adopted ASC 740, Accounting for Income Taxes. Pursuant to ASC
740, we are required to compute tax asset benefits for net operating losses
carried forward. The potential benefits of net operating losses have not
been recognized in these financial statements because the Company cannot be
assured it is more likely than not it will utilize the net operating losses
carried forward in future years.
We must make certain estimates and judgments in determining income tax
expense for financial statement purposes. These estimates and judgments
occur in the calculation of certain tax assets and liabilities, which arise
from differences in the timing of recognition of revenue and expense for tax
and financial statement purposes.
Deferred tax assets and liabilities are determined based on the
differences between financial reporting and the tax basis of assets and
liabilities using the tax rates and laws in effect when the differences are
expected to reverse. ASC 740 provides for the recognition of deferred tax
assets if realization of such assets is more likely than not to occur.
Realization of our net deferred tax assets is dependent upon our generating
sufficient taxable income in future years in appropriate tax jurisdictions
to realize benefit from the reversal of temporary differences and from net
operating loss, or NOL, carryforwards. We have determined it more likely
than not that these timing differences will not materialize and have
provided a valuation allowance against substantially all of our net deferred
tax asset. Management will continue to evaluate the realizability of the
deferred tax asset and its related valuation allowance. If our assessment of
the deferred tax assets or the corresponding valuation allowance were to
change, we would record the related adjustment to income during the period
in which we make the determination. Our tax rate may also vary based on our
results and the mix of income or loss in domestic and foreign tax
jurisdictions in which we operate.
In addition, the calculation of our tax liabilities involves dealing with
uncertainties in the application of complex tax regulations. We recognize
liabilities for anticipated tax audit issues in the U.S. and other tax
jurisdictions based on our estimate of whether, and to the extent to which,
additional taxes will be due. If we ultimately determine that payment of
these amounts is unnecessary, we will reverse the liability and recognize a
tax benefit during the period in which we determine that the liability is no
longer necessary. We will record an additional charge in our provision for
taxes in the period in which we determine that the recorded tax liability is
less than we expect the ultimate assessment to be.
ASC 740 which requires recognition of estimated income taxes payable or
refundable on income tax returns for the current year and for the estimated
future tax effect attributable to temporary differences and carry-forwards.
Measurement of deferred income tax is based on enacted tax laws including
tax rates, with the measurement of deferred income tax assets being reduced
by available tax benefits not expected to be realized.
Uncertain Tax Positions
When tax returns are filed, it is highly certain that some positions
taken would be sustained upon examination by the taxing authorities, while
others are subject to uncertainty about the merits of the position taken or
the amount of the position that would be ultimately sustained. In accordance
with the guidance of FASB ASC 740-10, Accounting for Uncertain Income Tax
Positions, the benefit of a tax position is recognized in the financial
statements in the period during which, based on all available evidence,
management believes it is more likely than not that the position will be
sustained upon examination, including the resolution of appeals or
litigation processes, if any. Tax positions taken are not offset or
aggregated with other positions. Tax positions that meet the
more-likely-than-not recognition threshold are measured as the largest
amount of tax benefit that is more than 50 percent likely of being realized
upon settlement with the applicable taxing authority. The portion of the
benefits associated with tax positions taken that exceeds the amount
measured as described above should be reflected as a liability for
unrecognized tax benefits in the accompanying consolidated balance sheets
along with any associated interest and penalties that would be payable to
the taxing authorities upon examination.
Our federal and state income tax returns are open for fiscal years ending
on or after December 31, 2009. We are not under examination by any
jurisdiction for any tax year. At March 31, 2016 we had no material
unrecognized tax benefits and no adjustments to liabilities or operations
were required under FASB ASC 740-10.
Recent Accounting Pronouncements
In April 2015, the Financial Accounting Standards Board ("FASB") issued
Accounting Standards Update ("ASU") 2015-03, "Interest-Imputation of
Interest (Subtopic 835-30): Simplifying the Presentation of Debt Issuance
Costs." ASU 2015-03 requires that debt issuance costs related to a
recognized debt liability be presented in the balance sheet as a direct
deduction from the carrying amount of that debt liability, consistent with
debt discounts. Currently, debt issuance costs are recognized as deferred
charges and recorded as other assets. The guidance is effective for annual
and interim periods beginning after December 15, 2015 with early adoption
permitted and is to be implemented retrospectively. Adoption of the new
guidance will only affect the presentation of the Company's consolidated
balance sheets and will have no impact to our financial statements.
Management does not anticipate that the adoption of these standards will
have a material impact on the financial statements.
The accompanying balance sheet as of March 31, 2016, which was derived
from audited financial statements, and the unaudited interim financial
statements have been prepared in accordance with accounting principles
generally accepted in the United States of America ("U.S. GAAP") for interim
financial information and in accordance with the instructions to Form 10-Q
and Article 10 of Regulation S-X. Accordingly, they do not include all of
the information and footnotes required by U.S. GAAP for complete financial
statements. These financial statements should be read in conjunction with
the audited financial statements and related notes for the fiscal year ended
December 31, 2015, included in the Company's Annual Report on Form 10-K
covering that period.
The preparation of these financial statements in conformity with
accounting principles generally accepted in the United States requires us to
make estimates and judgments that affect the reported amounts of assets,
liabilities, revenues and expenses, and related disclosure of contingent
assets and liabilities. On an on-going basis, we evaluate our estimates,
including those related intangible assets, income taxes, insurance
obligations and contingencies and litigation. We base our estimates on
historical experience and on various other assumptions that are believed to
be reasonable under the circumstances, the results of which form the basis
for making judgments about the carrying values of assets and liabilities
that are not readily apparent from other resources. Actual results may
differ from these estimates under different assumptions or conditions. The
results of operations for the periods presented are not necessarily
indicative of the results for the full fiscal year or any future period.
In the opinion of management, the information furnished in these interim
financial statements reflects all adjustments necessary for a fair statement
of the financial position and results of operations and cash flows as of and
for the three-month periods ended March 31, 2016 and 2015. All such
adjustments are of a normal recurring nature. The Financial Statements do
not include some information and notes necessary to conform to annual
reporting requirements.
2. Stockholders' Equity
On January 20, 2016, we amended our certificate of incorporation to
increase authorized capital to include 10 million shares of $.0001 par value
preferred shares and declared a reverse stock split of our common stock. As
of March 31, 2016, no preferred shares have been issued.
The formula provided that every thirty (30) issued and outstanding shares of
common stock of the Corporation be automatically split into one (1) share of
common stock. Except as otherwise noted, all share, option and warrant numbers have
been restated to give retroactive effect to this split, which became
effective on March 10, 2016. All per share
disclosures retroactively reflect post-split shares.
Transactions in our Common Stock
Stock issued upon conversion of debt
On February 19, 2016 we issued
30,000 shares of our common stock at par value in settlement of $15,750 in accounts
payable.
Stock issued upon completion of Regulation S Offering
We received $474,987 during the three months ended March 31, 2016 and
$250,013 in Q4 of 2015 through a placement of common stock units.
Each unit consists of one share of common stock and one warrant to purchase
common stock. The units were sold for the offering price of $0.50 per unit.
The warrants are exercisable at $1.00 and expire two years from the date of
issuance.
Stock Issued for Services
On February 19, 2016, we issued 1,333,333 shares
of our common stock to Mr. Ng (an officer and director of the company)
individually and as control person of PT Kinerja as payment for services as
part of a service agreement resulting from the license agreement. The shares
were valued at the closing price as of the date of the agreement ($0.9001)
and resulted in full recognition of $1,200,133 in consulting services expense.
3. Related Party Transactions Not Disclosed Elsewhere
On December 1, 2015, the Company entered into an agreement with PT
Kinerja Indonesia, an entity organized under the laws of Indonesia ("PT
Kinerja"), for an exclusive, world-wide license to use and commercially
exploit certain KinderjaPay technology and intellectual property. Pursuant
to the License Agreement and in consideration for the payment of royalties,
the Company has been granted the exclusive, world-wide rights to the
KinerjaPay IP, an eCommerce platform that provides users with the
convenience of e-Wallet service for bill transfer and online shopping having
advanced functionality and "gamification" features, among others, and is
among the first portals to allow users the convenience to top-up phone
credit. Mr. Ng is a control person of PT Kinerja and a controlling
shareholder and board member of KinerjaPay Corp.
In connection with the License Agreement, we agreed to: (i) change the name
of the Company from Solarflex Corp to KinerjaPay Corp.; (ii) implement a
reverse split of our common stock on a one-for-thirty (1:30) basis; and
raise equity capital in the minimum offering amount of $500,000 and the
maximum offering amount of $2,500,000 through the offering of units at a
price of $0.50, each Unit, each consisting of 1 share of common stock
(post-reverse) and 1 class A warrant exercisable for a period of 24 months
to purchase 1 additional share of common stock (post-reverse) at $1.00. The
Unit Offering was made only to "accredited investors" who are not U.S.
Persons in reliance upon Regulation S promulgated by the SEC under the
Securities Act of 1933, as amended (the "Act"). On January 20, 2016, the
Company closed the Minimum Offering after it received subscription proceeds
in excess of $500,000. To date, we have raised $725,000 under the Unit
Offering, while the Unit Offering is continuing.
On February 19, 2016, we issued 1,333,333 shares
of our common stock to Mr. Ng (an officer and director of the company)
individually and as control person of PT Kinerja as payment for services as
part of a service agreement resulting from the license agreement. The shares
were valued at the closing price as of the date of the agreement ($0.9001)
and resulted in full recognition of $1,200,133 in consulting services expense.
On March 10, 2016, the Company's name change to KinerjaPay Corp.
and its one-for-thirty reverse stock split became effective. The Company's
shares of common stock are subject to quotation on the OTCQB market under
the symbol KPAY.
4. Future Commitment
On December 1, 2015, the Company entered into an agreement with PT
Kinerja Indonesia, an entity organized under the laws of Indonesia ("PT
Kinerja"), for an exclusive, world-wide license to use and commercially
exploit certain KinderjaPay technology and intellectual property. The
licensing agreement requires a 1% royalty on sales generated by Solarflex.
Cancellation of previous agreement
On November 10, 2015, the Asset Purchase Rescission Agreement with IEC
effectively cancelled the Patent Sale Agreement whereby the Company acquired
all of the rights, title and interest in the patent known as the "Solar
element and method of manufacturing the same". In consideration of the
rescission the Company is released from all terms and is no longer obligated
to pay any royalties under that agreement and has returned all related
equipment.
5. Going Concern
The accompanying financial statements have been prepared in conformity
with accounting principles generally accepted in the United States of
America, which contemplate continuation of the Company as a going concern.
The Company has not established any source of revenue to cover its 2016
operating costs, and as such, has incurred an operating loss since
inception. Further, as of March 31, 2016, the cash resources of the
Company were insufficient to meet its current business plan. These and other
factors raise substantial doubt about the Company's ability to continue as a
going concern. The accompanying financial statements do not include any
adjustments to reflect the possible future effects on the recoverability and
classification of assets or the amounts and classification of liabilities
that may result from the possible inability of the Company to continue as a
going concern.
6. Subsequent Events
Effective on April 6, 2016, the Registrant's Subsidiary, P.T. Kinerja Pay
Indonesia, was organized under the laws of Indonesia. On April 11, 2016, the
Subsidiary successfully established a bank account at Bank OCBC NISP, a
publicly listed banking and financial institution traded on the Indonesia
Stock Exchange and on the same date the Registrant transferred US$400,000
from its United States bank account, maintained at JP Morgan Chase Bank to
its account at Bank OCBC NISP to fund the operations of the Subsidiary.
There were no other material subsequent events following the period ended
March 31, 2016 and throughout the date of the filing of Form 10-Q.
Page 40
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Back to Table of Contents
To the Board of Directors
We have audited the accompanying balance sheets of
KinerjaPay Corp. (formerly Solarflex Corp.) as of
December 31, 2015 and 2014 and the related statements of operations,
stockholders' deficit and cash flows for the years then ended. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based
on our audits.
We conducted our audits in accordance with standards of the Public
Company Accounting Oversight Board (United States). Those standards require
that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. The
Company is not required to have, nor were we engaged to perform, an audit of
its internal control over financial reporting. Our audit included
consideration of internal control over financial reporting as a basis for
designing audit procedures that are appropriate in the circumstances, but
not for the purpose of expressing an opinion on the effectiveness of the
Company's internal control over financial reporting. Accordingly, we express
no such opinion. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable
basis for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of KinerjaPay Corp.
as of December 31, 2015 and 2014 and the results of its operations and cash
flows for the period described above in conformity with accounting
principles generally accepted in the United States of America.
The accompanying financial statements have been prepared assuming that
the Company will continue as a going concern. As discussed in Note 7 to the
financial statements, the Company suffered a net loss from operations and
has a net capital deficiency, which raises substantial doubt about its
ability to continue as a going concern. Management's plans regarding those
matters are also described in Note 7. The financial statements do not
include any adjustments that might result from the outcome of this
uncertainty.
/s/ M&K CPAS, PLLC
Page 41
ASSETS
LIABILITIES
AND STOCKHOLDERS' DEFICIT
Common
Stock
Shares
Amount
Paid-In Capital
Deficit
Total
KINERJAPAY CORP.
1. The Company and Significant Accounting Policies
Organizational Background:
KinerjaPay
Corp. (formely Solarflex Corp.) ("Kinerjapay" or the
"Company") is a Delaware corporation and has not commenced operations. The
Company was incorporated under the laws of the State of Delaware on February
12, 2010. The business plan of the Company was to develop a commercial
application of the design in a patent of a "Solar element and method of
manufacturing the same." The Company intended to produce a prototype,
and manufacture and market the product and/or seek third party entities
interested in licensing the rights to manufacture and market the device. The
accompanying financial statements of the Company were prepared from the
accounts of the Company under the accrual basis of accounting.
Basis of Presentation:
The accompanying financial statements have
been prepared in conformity with accounting principles generally accepted in
the United States of America, which contemplate continuation of the Company
as a going concern. The Company has not established any source of revenue to
cover its operating costs, and as such, has incurred an operating loss since
inception. Further, as of December 31, 2015, the cash resources of the
Company were insufficient to meet its current business plan, and the Company
had negative working capital. These and other factors raise substantial
doubt about the Company's ability to continue as a going concern. The
accompanying financial statements do not include any adjustments to reflect
the possible future effects on the recoverability and classification of
assets or the amounts and classification of liabilities that may result from
the possible inability of the Company to continue as a going concern.
Significant Accounting Policies
Use of Estimates:
The preparation of financial statements in
conformity with generally accepted accounting principles requires management
to make estimates and assumptions that affect reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date
of the financial statement and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from the estimates.
Cash and Cash Equivalents:
For financial statement presentation
purposes, the Company considers those short-term, highly liquid investments
with original maturities of three months or less to be cash or cash
equivalents. There were no cash equivalents as of December 31, 2015 and
December 31, 2014.
Property and Equipment:
New property and equipment are recorded at
cost. Depreciation is computed using the straight-line method over the
estimated useful lives of the assets, generally 5 years. Expenditures for
renewals and betterments are capitalized. Expenditures for minor items,
repairs and maintenance are charged to operations as incurred. Gain or loss
upon sale or retirement due to obsolescence is reflected in the operating
results in the period the event takes place.
Valuation of Long-Lived Assets:
We review the recoverability of
our long-lived assets including equipment, goodwill and other intangible
assets, when events or changes in circumstances occur that indicate that the
carrying value of the asset may not be recoverable. The assessment of
possible impairment is based on our ability to recover the carrying value of
the asset from the expected future pre-tax cash flows (undiscounted and
without interest charges) of the related operations. If these cash flows are
less than the carrying value of such asset, an impairment loss is recognized
for the difference between estimated fair value and carrying value. Our
primary measure of fair value is based on discounted cash flows. The
measurement of impairment requires management to make estimates of these
cash flows related to long-lived assets, as well as other fair value
determinations.
Stock Based Compensation:
Stock-based awards are accounted for
using the fair value method in accordance with ASC 718, Share-Based
Payments. Our primary type of share-based compensation consists of stock
options. We use the Black-Scholes option pricing model in valuing options.
The inputs for the valuation analysis of the options include the market
value of the Company's common stock, the estimated volatility of the
Company's common stock, the exercise price of the warrants and the risk free
interest rate.
Accounting For Obligations And Instruments Potentially To Be Settled
In The Company's Own Stock:
We account for obligations and instruments
potentially to be settled in the Company's stock in accordance with FASB ASC
815, Accounting for Derivative Financial Instruments. This issue addresses
the initial balance sheet classification and measurement of contracts that
are indexed to, and potentially settled in, the Company's own stock.
Fair Value of Financial Instruments:
FASB ASC 825, "Financial
Instruments," requires entities to disclose the fair value of financial
instruments, both assets and liabilities recognized and not recognized on
the balance sheet, for which it is practicable to estimate fair value. FASB
ASC 825 defines fair value of a financial instrument as the amount at which
the instrument could be exchanged in a current transaction between willing
parties. At December 31, 2015 and 2014, the carrying value of certain
financial instruments (cash and cash equivalents, accounts payable and
accrued expenses.) approximates fair value due to the short-term nature of
the instruments or interest rates, which are comparable with current rates.
Fair Value Measurements:
The Company measures fair value under a
framework that utilizes a fair value hierarchy that prioritizes the inputs
to valuation techniques used to measure fair value. The hierarchy gives the
highest priority to unadjusted quoted prices in active markets for identical
assets or liabilities (level 1 measurements) and the lowest priority to
unobservable inputs (level 3 measurements). The three levels of inputs which
prioritize the inputs used in measuring fair value are:
Level 1:
Inputs to the valuation methodology are unadjusted quoted
prices for identical assets or liabilities in active markets that the
Company has the ability to access.
Level 2:
Inputs to the valuation methodology include:
Level 3:
Inputs to the valuation methodology are unobservable and
significant to the fair value measurement.
The assets or liability's fair value measurement level within the fair
value hierarchy is based on the lowest level of any input that is
significant to the fair value measurement. Valuation techniques used need to
maximize the use of observable inputs and minimize the use of unobservable
inputs. The following table presents assets that were measured and recognize
at fair value on December 31, 2015 and 2014 and the years then ended on a
recurring basis:
When the Company changes its valuation inputs for measuring financial
assets and liabilities at fair value, either due to changes in current
market conditions or other factors, it may need to transfer those assets or
liabilities to another level in the hierarchy based on the new inputs used.
The Company recognizes these transfers at the end of the reporting period
that the transfers occur. For the fiscal periods ended December 31, 2015 and
2014, there were no significant transfers of financial assets or financial
liabilities between the hierarchy levels.
Earnings per Common Share:
We compute net income (loss) per share
in accordance with ASC 260, Earning per Share. ASC 260 requires presentation
of both basic and diluted earnings per share (EPS) on the face of the income
statement. Basic EPS is computed by dividing net income (loss) available to
common shareholders (numerator) by the weighted average number of shares
outstanding (denominator) during the period. Diluted EPS gives effect to all
dilutive potential common shares outstanding during the period using the
treasury stock method and convertible preferred stock using the if-converted
method. In computing Diluted EPS, the average stock price for the period is
used in determining the number of shares assumed to be purchased from the
exercise of stock options or warrants. Diluted EPS excludes all dilutive
potential shares if their effect is anti-dilutive.
Income Taxes:
We have adopted ASC 740, Accounting for Income
Taxes. Pursuant to ASC 740, we are required to compute tax asset benefits
for net operating losses carried forward. The potential benefits of net
operating losses have not been recognized in these financial statements
because the Company cannot be assured it is more likely than not it will
utilize the net operating losses carried forward in future years.
We must make certain estimates and judgments in determining income tax
expense for financial statement purposes. These estimates and judgments
occur in the calculation of certain tax assets and liabilities, which arise
from differences in the timing of recognition of revenue and expense for tax
and financial statement purposes.
Deferred tax assets and liabilities are determined based on the
differences between financial reporting and the tax basis of assets and
liabilities using the tax rates and laws in effect when the differences are
expected to reverse. ASC 740 provides for the recognition of deferred tax
assets if realization of such assets is more likely than not to occur.
Realization of our net deferred tax assets is dependent upon our generating
sufficient taxable income in future years in appropriate tax jurisdictions
to realize benefit from the reversal of temporary differences and from net
operating loss, or NOL, carryforwards. We have determined it more likely
than not that these timing differences will not materialize and have
provided a valuation allowance against substantially all of our net deferred
tax asset. Management will continue to evaluate the realizability of the
deferred tax asset and its related valuation allowance. If our assessment of
the deferred tax assets or the corresponding valuation allowance were to
change, we would record the related adjustment to income during the period
in which we make the determination. Our tax rate may also vary based on our
results and the mix of income or loss in domestic and foreign tax
jurisdictions in which we operate.
In addition, the calculation of our tax liabilities involves dealing with
uncertainties in the application of complex tax regulations. We recognize
liabilities for anticipated tax audit issues in the U.S. and other tax
jurisdictions based on our estimate of whether, and to the extent to which,
additional taxes will be due. If we ultimately determine that payment of
these amounts is unnecessary, we will reverse the liability and recognize a
tax benefit during the period in which we determine that the liability is no
longer necessary. We will record an additional charge in our provision for
taxes in the period in which we determine that the recorded tax liability is
less than we expect the ultimate assessment to be.
ASC 740 which requires recognition of estimated income taxes payable or
refundable on income tax returns for the current year and for the estimated
future tax effect attributable to temporary differences and carry-forwards.
Measurement of deferred income tax is based on enacted tax laws including
tax rates, with the measurement of deferred income tax assets being reduced
by available tax benefits not expected to be realized.
Uncertain Tax Positions:
When tax returns are filed, it is highly
certain that some positions taken would be sustained upon examination by the
taxing authorities, while others are subject to uncertainty about the merits
of the position taken or the amount of the position that would be ultimately
sustained. In accordance with the guidance of FASB ASC 740-10, Accounting
for Uncertain Income Tax Positions, the benefit of a tax position is
recognized in the financial statements in the period during which, based on
all available evidence, management believes it is more likely than not that
the position will be sustained upon examination, including the resolution of
appeals or litigation processes, if any. Tax positions taken are not offset
or aggregated with other positions. Tax positions that meet the
more-likely-than-not recognition threshold are measured as the largest
amount of tax benefit that is more than 50 percent likely of being realized
upon settlement with the applicable taxing authority. The portion of the
benefits associated with tax positions taken that exceeds the amount
measured as described above should be reflected as a liability for
unrecognized tax benefits in the accompanying consolidated balance sheets
along with any associated interest and penalties that would be payable to
the taxing authorities upon examination.
Our federal and state income tax returns are open for fiscal years ending
on or after December 31, 2009. We are not under examination by any
jurisdiction for any tax year. At December 31, 2015 we had no material
unrecognized tax benefits and no adjustments to liabilities or operations
were required under FASB ASC 740-10.
Recent Accounting Pronouncements
In April 2015, the Financial Accounting Standards Board ("FASB") issued
Accounting Standards Update ("ASU") 2015-03, "Interest-Imputation of
Interest (Subtopic 835-30): Simplifying the Presentation of Debt Issuance
Costs." ASU 2015-03 requires that debt issuance costs related to a
recognized debt liability be presented in the balance sheet as a direct
deduction from the carrying amount of that debt liability, consistent with
debt discounts. Currently, debt issuance costs are recognized as deferred
charges and recorded as other assets. The guidance is effective for annual
and interim periods beginning after December 15, 2015 with early adoption
permitted and is to be implemented retrospectively. Adoption of the new
guidance will only affect the presentation of the Company's consolidated
balance sheets and will have no impact to our financial statements.
Management does not anticipate that the adoption of these standards will
have a material impact on the financial statements.
2. Stockholders' Equity
Transactions in our Common Stock in 2015
Stock issued upon conversion of debt:
On November 5, 2015, we
issued 14,360,396 shares of our common stock in settlement of $122,000 in
convertible notes payable plus associated accrued interest of $21,604. The
conversion occurred within the terms of the promissory notes and no gain or
loss resulted.
Stock issuable upon completion of Reg S offering:
Beginning
December 2015 we offered for sale common shares through a placement of
common stock units. Each unit consists of one share of common stock and one
warrant to purchase common stock. The units are to be sold for the offering
price of $0.50 per unit. The warrants are exercisable at $1.00 and expire
two years from the date of issuance. The offering calls for a minimum of
$500,000 to be raised up to a maximum of $2,500,000. As of December 31, 2015
$250,013 has been subscribed for and received upon the sale of 500,000
units. Until the minimum is raised the company may be obligated to return
any proceeds received to the investors. Accordingly, proceeds received up to
the minimum amount are carried as restricted cash and reflect a
corresponding refund obligation under current liabilities. Upon completion
and as a condition of the offering, the company is required to effect a 1:30
reverse split of its common shares.
Stock returned to treasury and cancelled:
On November 10, 2015, we
entered into an Asset Purchase Rescission Agreement with IEC together with
Mr. Edwin Witarsa Ng, a resident of Indonesia. Under the terms of the
agreement we transferred and assigned all right, title and interest in the
equipment back to IEC. IEC returned 10 million shares to the company and Mr.
Ng acquired 50 million shares directly from IEC and became a Board member.
The carrying value of the equipment at the date of the rescission agreement
was $0.
Transactions in our Common Stock in 2014
In 2014 we issued 250,000 shares of our common stock valued at $0.13 or
$32,500 as consideration for services. The shares were valued using the
closing price at the date of grant.
3. Related Party Transactions Not Disclosed Elsewhere
On December 1, 2015, the Company entered into an agreement with
PT Kinerja Indonesia, an entity organized under the laws of Indonesia ("PT
Kinerja"), for an exclusive, world-wide license to use and commercially
exploit certain KinderjaPay technology and intellectual property. Pursuant
to the License Agreement and in consideration for the payment of royalties,
the Company has been granted the exclusive, world-wide rights to the
KinerjaPay IP, an e-commerce platform that provides users with the
convenience of e-wallet service for bill transfer and online shopping having
advanced functionality and "gamification" features, among others, and is
among the first portals to allow users the convenience to top-up phone
credit. Mr. Ng is a control person of PT Kinerja and a controlling
shareholder and board member of Solarflex.
4. Notes Payable
On October 6, 2015 the conversion price on all outstanding notes was
reduced from $0.03 to $0.01 per share effective September 30, 2015. At the
time of modification there were nine notes outstanding with principal amounts
ranging from $3,000 to $35,000. It was determined that the modification
resulted in derecognition of the old notes and recognition of the new notes.
Accordingly, the remaining unamortized discount of $4,028 was immediately
expensed and the aggregate fair value of the modified conversion terms of
$199,305 was recognized as a loss on debt extinguishment in 2015.
During 2015 the Company signed five unsecured promissory notes with
unrelated parties for an aggregate of $31,689. Three of these notes
consisting of $23,000 in principal converted to common stock pursuant to the
revised terms described above. At December 31, 2015 two unsecured promissory
notes totaling $8,689 remain outstanding. The notes do not contain a
conversion feature and bear interest at 1% per annum. The notes are due in
October and November of 2016. In addition, the company benefitted from the
payment of expenses of $15,750 in 2015 recognized as a short term obligation
and carries no specific terms of interest or maturity.
In accordance with ASC 470, the Company has analyzed the beneficial
nature of the initial conversion terms of the three convertible notes and
determined that a beneficial conversion feature (BCF) exists because the
effective conversion price was less than the quoted market price at the time
of the issuance. The Company calculated the value of the BCF using the
intrinsic method as stipulated in ASC 470. The BCF of $15,333 has been
recorded as a discount to the notes payable and to Additional Paid-in
Capital.
For the year ended December 31, 2015 the Company has recognized $11,809
in interest expense related to the notes and has amortized $37,058 of the
discount arising from the beneficial conversion feature.
For the year ended December 31, 2014 the Company has recognized $9,161 in
interest expense related to the convertible notes and has amortized
$70,864 of the beneficial conversion feature.
5. Income Taxes
We have adopted ASC 740 which provides for the recognition of a deferred
tax asset based upon the value the loss carry-forwards will have to reduce
future income taxes and management's estimate of the probability of the
realization of these tax benefits. Our net operating loss carryovers
incurred prior to 2008 considered available to reduce future income taxes
were reduced or eliminated through our recent change of control (I.R.C.
Section 382(a)) and the continuity of business limitation of I.R.C. Section
382(c).
We have a current operating loss carry-forward of $ 476,993 resulting in
deferred tax assets of $166,948. We have determined it more likely than not
that these timing differences will not materialize and have provided a
valuation allowance against substantially all our net deferred tax asset.
Future utilization of currently generated federal and state NOL and tax
credit carry forwards may be subject to a substantial annual limitation due
to the ownership change limitations provided by the Internal Revenue Code of
1986, as amended and similar state provisions. The annual limitation may
result in the expiration of NOL and tax credit carry forwards before full
utilization.
December
31
2015
2014
Individual components giving rise to the deferred tax assets are as
follows:
$
$
Less valuation
allowance
(166,948)
(114,025)
Net
deferred
$
-
$
-
The Company is not under examination by any jurisdiction for any tax year.
Our federal and state income tax returns are open for fiscal years ending on or
after December 31, 2009.
6. Future Commitment
On December 1, 2015, the Company entered into an agreement with
PT Kinerja Indonesia, an entity organized under the laws of Indonesia ("PT
Kinerja"), for an exclusive, world-wide license to use and commercially
exploit certain KinderjaPay technology and intellectual property. The
licensing agreement requires a 1% royalty on sales generated by Solarflex.
Cancellation of Previous Agreement
On November 10, 2015, the Asset
Purchase Rescission Agreement with IEC effectively cancelled the Patent Sale
Agreement whereby the Company acquired all of the rights, title and interest
in the patent known as the "Solar element and method of manufacturing the
same". In consideration of the rescission the Company is released from all
terms and is no longer obligated to pay any royalties under that agreement
and has returned all related equipment.
7. Going Concern
The accompanying financial statements have been prepared in conformity
with accounting principles generally accepted in the United States of
America, which contemplate continuation of the Company as a going concern.
The Company has not established any source of revenue to cover its 2016
operating costs, and as such, has incurred an operating loss since
inception. Further, as of December 31, 2015, the cash resources of the
Company were insufficient to meet its current business plan. These and other
factors raise substantial doubt about the Company's ability to continue as a
going concern. The accompanying financial statements do not include any
adjustments to reflect the possible future effects on the recoverability and
classification of assets or the amounts and classification of liabilities
that may result from the possible inability of the Company to continue as a
going concern.
8. Subsequent Events
As of January 20, 2016 the full minimum subscription proceeds of $500,000
were received. Upon reaching the minimum the company is obligated to
implement a reverse split of the issued and outstanding shares of common
stock on a 1 for 30 basis and execute a name change to KinerjaPay Corp.
These corporate actions will not become effective until the Corporation
receives approval from FINRA.
Page 49
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
PLAN OF OPERATIONS
The following plan of operation provides information which management
believes is relevant to an assessment and understanding of our results of operations and
financial condition. The discussion should be read along with our financial statements and
notes thereto. This section includes a number of forward-looking statements that reflect
our current views with respect to future events and financial performance. Forward-looking
statements are often identified by words like believe, expect, estimate, anticipate,
intend, project and similar expressions, or words which refer to future
events. These
forward-looking statements are subject to certain risks and uncertainties that could cause
actual results to differ materially from our predictions.
Plan of Operations
The Company was incorporated in Delaware on February 12, 2010 under the
name Solarflex Corp. for the purpose of developing, manufacturing and
selling a solar photovoltaic element, a device that converts light into
electrical flow (also known as a photovoltaic cell) based on certain
proprietary technology to enable an increase in solar energy conversion and
provide energy at a lower cost. We did not generate any revenues from the sale of any solar
photovoltaic element, nor did we successfully manufacturer or construct a
working prototype. We
determined during the 4th quarter of 2015 to evaluate potential business
opportunities.
On December 1, 2015, the Company entered into a license agreement (the
"License Agreement") with PT Kinerja Indonesia, an entity organized under
the laws of Indonesia and controlled by Mr. Ng ("PT Kinerja"), for an
exclusive, world-wide license to use and commercially exploit certain
technology and intellectual property (the "KinerjaPay IP") and its website,
KinerjaPay.com. Pursuant to the License Agreement, the Company was granted
the exclusive, world-wide rights to the KinerjaPay IP, an e-commerce
portal.
In connection with the License Agreement, we agreed to: (i) change the name
of the Company from Solarflex Corp to KinerjaPay Corp.; (ii) implement a
reverse split of our common stock on a one-for-thirty (1:30) basis; and
raise equity capital in the minimum offering amount of $500,000 and the
maximum offering amount of $2,500,000 through the offering of units at a
price of $0.50, each Unit, each consisting of 1 share of common stock
(post-reverse) and 1 class A warrant exercisable for a period of 24 months
to purchase 1 additional share of common stock (post-reverse) at $1.00. The
Unit Offering was made only to "accredited investors" who are not U.S.
Persons in reliance upon Regulation S promulgated by the SEC under the
Securities Act of 1933, as amended (the "Act"). On January 20, 2016, the
Company closed the Minimum Offering after it received subscription proceeds
in excess of $500,000. To date, we have raised $905,000 under the Unit
Offering, while the Unit Offering is continuing.
As of March 10, 2016, the Company's name change to KinerjaPay Corp.
and its one-for-thirty reverse stock split became effective. The Company's
shares of common stock are subject to quotation on the OTCQB market under
the symbol KPAY.
Our principal products and services are (i) our
electronic payment service (the "EPS"); and (ii) our virtual marketplace
(the "Marketplace") both of which
are available on our portal under the domain name KinerjaPay.com (the
"Portal").
Our Android-based mobile app not only
serves as an extension of desktop or laptop access to our website, but has additional
in-app services that cater to mobile users, such as social engagement and
digital entertainment (the "Mobile App").
We believe that in
combining our EPS function
("PAY") with the ability to buy and sell products via our
virtual marketplace ("Buy") enhanced by a
gamification component ("Play")
our customers and merchants increase their loyalty to our
services.
Indonesia, the world's fourth most-populous country, having a population
estimated to be 255 million people, is becoming an economic
power in the Southeast Asia region. Over 50% of its population is below the
age of 30 and we believe that the young Indonesian population is highly adaptive to
new technology. The rise of Smartphones and tablets that sell for less than US$100 is rapidly
broadening internet access and pushing the Indonesian e-commerce
market toward a critical point in terms of scale and profitability, in spite
of significant challenges due to poor infrastructure and payment systems. The number of internet users is excepted to double to
125 million by 2017 and Smartphone ownership is to rise from 20 per cent to
52 per cent in the same period,
the
highest percentage compared to other Southeast Asian countries,
according to Redwing, an advisory group.
Our Portal was launched in
February 2015 but has already achieve significant market
acceptance evidenced by more than 13,000 users/customers and
approximately 78,000
e-commerce transactions in 2015.
Notwithstanding
our belief that our Portal represents a significant advance as compared to other
Indonesian portals, there are a number of potential difficulties that we might face,
including the following:
We may not be able to raise sufficient additional funds
to fully implement our business plan and grow our business;
To date, we raised $905,000 in equity capital and we may be expected to require up to an additional $2.5 million
in capital during the next 12 months to
fully implement
our business plan and fund our operations.
Page 50
Results of Operations during the three months
ended March 31, 2016 as compared
to the three months ended March 31, 2015
During the three months ended March 31, 2016, we had operating expenses related to general and administrative expenses being a public company and interest expenses.
During
the three months ended March 31, 2016
, we incurred a net loss of $1,359,157 due to general and administrative expenses of $1,350,151, interest expenses of $3
and a loss on conversion of debt of $9,003.
During
the three months ended March 31, 2015
, we incurred a net loss of
$28,438 due to general and administrative expenses
of $9,148, interest expenses of $3,315 and
expenses related to amortization of debt discount of $15,975
.
The significant increase in net loss during the three month ended March 31,
2106 as compared to the same period in the prior year was mainly due to
increased professional fees and non-cash compensation expenses.
Results of Operations during the year ended December 31, 2015 as compared
to the year ended December 31, 2014
During 2015, we had operating expenses related to general and administrative expenses being a public company and interest expenses. During 2015, we incurred a net loss of $293,104 due to general and administrative expenses of $44,932, interest expenses of $11,809, expenses related to amortization of debt discount of $37,058
and a loss of $199,305 due to extinguishment of debt.
During 2014, we incurred a net loss of
$188,265 due to general and administrative expenses
of $108,240, interest expenses of $9,161 and
expenses related to amortization of debt discount of $70,864
.
The significant increase in net loss in 2015 was mainly due to the loss
in connection with the extinguishment of debt.
Liquidity and Capital Resources
On March 31, 2016, we had $578,956 in current assets
represented by cash in the same amount.
On December 31, 2015, we had $250,194 in current assets consisting of
$81 in cash and $250,113 in restricted cash.
As of
March 31, 2016, we had total current liabilities of $12,500 representing
accounts payable.
As of December 31, 2015, we had total current liabilities of $274,467
consisting of $15 in accrued interest, $250,013 in unissued stock
subscriptions and $24,439 in short-term notes payable. We had no long-term liabilities
as of March 31, 2016 and December 31, 2015.
We used $137,536 in our operating activities during the three months ended March
31, 2016, which was
due to a net loss of $1,359,157 offset by non-cash compensation charges of $1,200,133, an increase in
accounts payable and accrued liabilities of $12,485 and loss on debt conversion
of $9,003
We used $11,148 in our operating activities during the
three months ended March 31, 2015, which was
due to a net loss of $28,438 offset by an increases in amortization of debt
discount of $15,975 and an increase in
accounts payable and accrued liabilities of $1,315.
We financed our negative cash flow from operations during the
period ended March 31, 2016 through the issuance of common stock of $474,987
reduced by payments of $8,689 related to principal payments on debt.
We financed our negative cash flow from
operations during the period ended March 31, 2015 through proceeds of $20,000
from debt issuance.
We had no investing activities during the three
months ended March 31, 2016 and 2015.
Availability of Additional Capital
Notwithstanding our success in raising over $905,000 from the private
sale of equity securities in January 2016 and our expectation that we will
be successful in raising up to an additional $1.6 million during 2016, there can be no assurance that we will continue to be
successful in raising equity capital and have adequate capital resources to
fund our operations or that any additional funds will be available to us
on favorable
terms or in amounts required by us.
If we determine that it is necessary to raise additional funds, we may
choose to do so through public or private equity or debt financing, a bank
line of credit, or other arrangements.
If we are unable to obtain adequate
capital resources to fund operations, we may be required to delay, scale
back or eliminate some or all of our plan of operations, which may have a
material adverse effect on our business, results of operations and ability
to operate as a going concern.
Any additional equity financing may be dilutive
to our stockholders, new equity securities may have rights, preferences or
privileges senior to those of existing holders of our shares of common
stock. Debt or equity financing may subject us to restrictive covenants and
significant interest costs.
Capital Expenditure Plan During the Next
Twelve Months
To date, we raised $905,000 in equity capital
and we may be expected to require up to an additional $1.6 million in
capital during the next 12 months to fully implement our business plan and
fund our operations. Our plan is to utilize the equity capital that we
raise, together with anticipated cash flow from operations, to fund a very
significant investment in sales and marketing, concentration principally on
online advertising and incentivizing existing customers for the introduction
of new customers, among other strategies. However, there can be no assurance
that: (i) we will continue to be successful in raising equity capital in
sufficient amounts and/or at terms and conditions satisfactory to the
Company; or (ii) we will generate sufficient revenues from operations, to
fulfill our plan of operations. Our revenues are expected to come from the
sale of our portal services. As a result, we will continue to incur
operating losses unless and until we are able to generate sufficient cash
flow to meet our operating expenses and fund our planned sales and market
efforts. There can be no assurance that the market will adopt our portal or
that we will generate sufficient cash flow to fund our enhanced sales and
marketing plan. In the event that we are not able to successfully: (i) raise
equity capital and/or debt financing; or (ii) market and significantly
increase the number of portal users and revenues from such users, our
financial condition and results of operations will be materially and
adversely affected and we will either have to delay or curtail our plan for
funding our sales and marketing efforts."
Page 51
Going Concern Consideration
Our registered independent auditors have issued an opinion on our financial statements which includes a statement describing our going concern status. This means that there is substantial doubt that we can continue as an on-going business for the next
twelve months unless we obtain additional capital to pay our bills and meet our other financial obligations. This is because we have not generated any revenues and no revenues are anticipated until we begin marketing the product. Accordingly, we must raise capital from sources other than the actual sale of the product. We must raise capital to implement our project and stay in business.
Off-Balance
Sheet Arrangements
As
of December 31, 2015 and 2014, we did not have any off-balance sheet arrangements as defined in Item 303(a)(4)(ii) of
Regulation S-K promulgated under the Securities Act of 1934.
Contractual
Obligations and Commitments
As
of December 31, 2015 and 2014, we did not have any contractual obligations.
Critical
Accounting Policies
Our
significant accounting policies are described in the notes to our financial statements for the year ended December 31, 2015, and
are included elsewhere in this prospectus.
Page 52
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
There have been no changes in or disagreements with accountants on
accounting or financial disclosure matters.
DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
Our
directors were elected to serve until the next annual meeting of shareholders and until his respective successors will have been
elected and will have qualified. The following table sets forth the name, age and position held with respect to our present executive
officers and directors:
Edwin Witarsa Ng, 34,
was appointed to the Board
of Directors, with the position of Chairman, on November 15, 2015. In 2007,
Mr. Ng founded PT Kinerja, an Information Technology company organized under
the laws of Indonesia with offices located in Medan, Indonesia and
operations throughout Indonesia. PT Kinerja operates through the following
units, among others: (i) KinerjaHosting, which is engaged in the business of
providing data hosting to Companies and/or individuals, as well as website
domains and VPS services; (ii) KinerjaNet, which is engaged in the business
of Internet Service Provider by providing internet connectivity to corporate
offices, households, and internet cafes; and (iii) Kinerja Technology, which
is engaged in the business of Application Development, mobile app
development, website development, and Software implementation such as ERP
and CRM Software. PT Kinerja also partnered with IBM to build the first Tier
2+ Data Center in Medan City (KDC Medan). In February 2015, Mr. Ng started
the business of KinerjaPay, an e-commerce payment gateway with marketplace
platform. In 2007, Mr. Ng founded and to present has served as CEO and
president of PT. Stareast Sejahtera Group, a Real Estate Development company
with operations in Medan, Pekanbaru, and Bintan Island , Indonesia. Since
2007, the company has built and opened hotels and apartment complexes, and
conducted extensive development operations in Indonesia. In 2012, Mr. Ng
established PT. Graha Pecatu Sejahtera, a Real Estate Development company
for which he has served as CEO & President, and built a four star rated
Condotel in BALI. Mr. Ng has other business interests engaged in asset
management, tire distribution, marketing consultancy and hospitality.
Mr. Ng intends to devote 20% of his professional time
to the business affairs of the Registrant.
Mr. Ng received his undergraduate degree from the
University of Southern California (USC) School of Engineering, Los Angeles,
CA in 2002 with a major in Management Information Systems and a Minor in SAP
Implementation Systems and his post-graduate degree from the University of
Toronto in 2004 with a major in Information Science.
Budi Sidarta Pranata, 49,
a Certified Public Accountant and Certified
Financial Analyst, has over twenty-five years of experience as
a CFO and/or finance director working for firms involved in the
manufacturing and retail industries, both in multinational and regional,
with expertise in the areas of financial reporting, budgeting and financial
forecasting, system development, cash management, cost accounting, corporate
accounting and tax matters, among other areas.
During the past five years, Mr. Pranata has served in
the following positions: (i) from January 2014 to May 2016, he served as CFO
and Service Director of Zalora, Asia's leading Online Fashion retailer with
operations in Indonesia, Malaysia, Singapore, Hong Kong, Brunei, Taiwan,
Philippines, Thailand, Vietnam, Australia and New Zealand; and (ii) from
September 2009 to December 2011, he served as Finance Director of Yupi Indo
Candy, a candy manufacturer with world-wide distribution in Asia, North
America, Europe and the Middle East.
Mr. Pranata intends to devote 20% of his professional time to the
business affairs of the Registrant.
Mr. Pranata received his
Doctoral degree in Management from Kaizen School of Business Management,
Mumbai, India in 2010, his MBA degree from Institute Management Newport
Indonesia in 1994 and his Bachelor's degree in Accounting from the
University of Indonesia.
Deny Rahardjo, 45,
Chief Executive
Officer of P.T. Kinerja Pay Indonesia since April 2016, has over twenty five years of
experience in information technology (IT) management, with responsibilities
including IT strategies, operations, planning and budgeting, service
management and project management. From November 2013 until August 2015, Mr. Rahardjo served as Vice President of Information Technology - Pacnet at
Telstra Global PTE LTD ("Telstra"), an international telecom and IT company
based in Singapore with world-wide offices, including the United States. Mr.
Rahardjo's duties at Telstra included the establishment of IT department
goals, objectives, and operating procedures and the implementation of
enterprise IT systems. From 2011 through November 2013, Mr. Rahardjo served
as CIO (Senior Director) of Asia Pacific & China Polycom Asia Pacific PTE
LTD, a Singapore-based IT services company, with duties including IT
deployment for regional and national IT solutions to a diverse client base.
Mr. Deny Rahardjo received his Master of Business
Administration (MBA Degree) in 1997 from Indonusa Esa Unggul University,
Jakarta, Indonesia, with a major in Finance and his Bachelor Degree in
Computer Science from STMIK Nina Nusantara, Jakarta, Indonesia in 1993.
Mr. Rahardjo intends to devote 70% of his professional time to the
business affairs of the Registrant's wholly-owned subsidiary P.T.
Kinerja Pay Indonesia.
The Board of Directors has concluded that
Mr. Ng should serve as Director because of his extensive and diverse
experience working with development teams and managing development
efforts, which experiences they each gained while working at and managing
the above-referenced entities.
Page 53
Each Director of the Company serves for a term of one
year or until the successor is elected at the Company's annual shareholders'
meeting and is qualified, subject to removal by the Company's shareholders.
Our executive officer serves at the pleasure of the Board of Directors, for
a term of one year and until the successor is elected at the annual or other
meeting of the Board of Directors and is qualified.
We do not compensate our director. We do not have any standing
committees at this time.
Our
director, officers or affiliates have not, within the past ten years, filed any bankruptcy petition, been convicted in or been
the subject of any pending criminal proceedings, or is any such person the subject or any order, judgment or decree involving
the violation of any state or federal securities laws.
Section 16(a) Compliance.
Section 16(a) of the Securities and Exchange Act of 1934 requires that
directors
and executive officers, and persons who own beneficially more than ten percent (10%) of the Registrant's Common Stock, to
file reports of ownership and changes of ownership with the Securities and Exchange Commission. Copies of all filed reports are
required to be furnished to the Registrant pursuant to Section 16(a). Based solely on the reports received by the Registrant and
on written representations from reporting persons, the Registrant was informed that our CEO has filed reports as required under Section 16(a). Based solely on the
reports received by the Registrant and on written representations from reporting
persons, the Registrant was informed that our CFO has not filed reports as required
under Section 16(a).
NASDAQ
Rule 4200.
The NASDAQ Rule 4200, which sets forth several tests to determine whether a director of a listed company
is independent. Rule 4200 provides that a director would not be considered independent if the director or an immediate family
member accepted any compensation from the listed company in excess of $120,000 during any period of 12 consecutive months within
the three years preceding the determination of independence (excluding compensation for board or board committee service, compensation
paid to an immediate family member as a non-executive employee, benefits paid under a tax-qualified retirement plan and non-discretionary
compensation).
Director
Independence.
In determining whether or not our directors are considered independent, the Company used the definition
of independence as defined in NASDAQ Rule 4200. We therefore believe that our
director Edwin Witarsa Ng is
not an independent director.
Directors'
Term of Office.
Our directors are elected to serve until the next annual meeting of shareholders and until their respective
successors will have been elected and will have qualified.
Audit
Committee and Financial Expert, Compensation Committee, Nominations Committee.
We do not have any of the above mentioned
standing committees because our corporate financial affairs and corporate governance are simple in nature at this stage of development
and each financial transaction is approved by our sole officer or director.
Potential
Conflicts of Interest
.
Since we do not have an audit or compensation committee comprised of independent Directors,
the functions that would have been performed by such committees are performed by our Board of Directors. Thus, there is a potential
conflict of interest in that our Directors have the authority to determine issues concerning management compensation, in essence
their own, and audit issues that may affect management decisions. We are not aware of any other conflicts of interest with any
of our Executives or Directors.
Board's
Role in Risk Oversight.
The Board assesses on an ongoing basis the risks faced by the Company. These risks include financial,
technological, competitive, and operational risks. In addition, since the Company does not have an Audit Committee, the Board
is also responsible for the assessment and oversight of the Company's financial risk exposures.
Involvement
in Certain Legal Proceedings.
We are not aware of any material legal proceedings that have occurred within the past ten years
concerning any Director or control person which involved a criminal conviction, a pending criminal proceeding, a pending or concluded
administrative or civil proceeding limiting one's participation in the securities or banking industries, or a finding of
securities or commodities law violations.
The
following table depicts the total compensation that we have paid or that has accrued on behalf of our
chief executive officer and other executive officers during the fiscal years ending December 31, 2015, 2014 and 2013.
Long
Term
Annual
Compensation
Compensation
Awards
Salary
Bonus
Year
($)
($)
($)
($)
($)
($)
(1) Sergei Rogov
resigned as officer and director of the Registrant on April 1, 2016.
Page 54
We do not compensate our director.
Outstanding Equity Awards
None of our Directors or executive officers holds stock that has not vested or equity incentive plan awards.
PT Kinerja Indonesia, an affiliate and controlled by our CEO, owns 1,333,333
shares, which do not vest until August 19, 2017.
Option Grants
There
were no individual grants of stock options to purchase our Common Stock made to
our executive officers
Aggregated
Option Exercises and Fiscal Year-End Option Value
There
were no stock options exercised during the year ending December 31, 2015 and
2014 by the executive officers named in the Summary Compensation
Table.
Long-Term
Incentive Plan ("LTIP") Awards
There
were no awards made to a named executive officers in the last completed fiscal year under any LTIP.
Certain
Relationships and Related Party Transactions and Director Independence
On December 1, 2015, the Company entered into an agreement with PT Kinerja
Indonesia, an entity organized under the laws of Indonesia ("PT Kinerja"), for an exclusive, world-wide license to use and commercially
exploit certain KinderjaPay technology and intellectual property. Mr. Ng
is the control person of PT Kinerja and a controlling
shareholder, CEO and Chairman of the Company.
Indebtedness of Management
No
officer, director or security holder known to us to own of record or beneficially more than 5% of our Common Stock or any member
of the immediate family or sharing the household (other than a tenant or employee) of any of the foregoing persons is indebted
to us in the years 2015 and 2014.
Disclosure
of Commission Position on Indemnification of Securities Act Liabilities
Our
directors and officers are indemnified as provided by the Delaware corporate law and our Bylaws. We have agreed to indemnify each
of our directors and certain officers against certain liabilities, including liabilities under the Securities Act of 1933, as
amended. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended may be permitted to our
directors, officers and controlling persons pursuant to the provisions described above, or otherwise, we have been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities
Act of 1933, as amended and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than our payment of expenses incurred or paid by our director, officer or controlling person in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
We
have been advised that in the opinion of the Securities and Exchange Commission indemnification for liabilities arising under
the Act is against public policy as expressed in the Act, and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities is asserted by one of our directors, officers, or controlling persons in connection with the securities
being registered, we will, unless in the opinion of our legal counsel the matter has been settled by controlling precedent, submit
the question of whether such indemnification is against public policy to a court of appropriate jurisdiction. We will then be
governed by the court's decision.
Page 55
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table lists the number of shares of Common Stock of our Company
as of May 11, 2016 that are beneficially owned by (i) each person or entity
known to our Company to be the beneficial owner of more than 5% of the
outstanding Common Stock; (ii) each officer and director of our Company; and
(iii) all officers and directors as a group. Information relating to beneficial
ownership of Common Stock by our principal stockholders and management is based
upon information furnished by each person using "beneficial ownership" concepts
under the rules of the Securities and Exchange Commission. Under these rules, a
person is deemed to be a beneficial owner of a security if that person has or
shares voting power, which includes the power to vote or direct the voting of
the security, or investment power, which includes the power to vote or direct
the voting of the security. The person is also deemed to be a beneficial owner
of any security of which that person has a right to acquire beneficial ownership
within sixty (60) days. Under the rules of the SEC, more than one person may be
deemed to be a beneficial owner of the same securities, and a person may be
deemed to be a beneficial owner of securities as to which he/she may not have
any pecuniary beneficial interest. Except as noted below, each person has sole
voting and investment power. As of July 6, 2016, the Company had 7,467,013 shares of Common Stock
outstanding.
(1) Does not include 1,333,333 held by PT Kinerja
Indonesia. Mr. Ng, an Indonesian resident and citizen, exercises the sole voting and dispositive powers with respect to these
shares. The 1,333,333 shares owned by PT Kinerja Indonesia were issued in connection
with a services agreement dated will not vest until August 19, 2017, 18
months from the February 19, 2016 date of the agreement. Mr. Ng, our CEO and
Chairman, owns directly 1,666,667 shares that are fully-vested.
Page 56
TRANSACTIONS WITH RELATED PERSONS, PROMOTERS AND CERTAIN CONTROL PERSONS
Certain
Related Party Transactions
On December 1, 2015, the Company entered into an agreement with PT Kinerja
Indonesia, an entity organized under the laws of Indonesia ("PT Kinerja"), for an exclusive, world-wide license to use and commercially
exploit certain KinderjaPay technology and intellectual property. Pursuant
to the License Agreement and in consideration for the payment of royalties,
the Company has been granted the exclusive, world-wide rights to the
KinerjaPay IP, an e-commerce platform that provides users with the
convenience of e-commerce services for bill transfer and online shopping. Mr. Ng
is the control person of PT Kinerja and a controlling
shareholder, CEO and Chairman of the Company.
On February 19, 2016, we issued 44,4445 shares
of our common stock to Mr. Ng, our CEO, sole director and control person.
Mr. Ng is the sole officer and directors and contol person of PT Kinerja,
the other party to this agreement, as payment for services as
part of a service agreement resulting from the license agreement. The shares
were valued at the closing price as of the date of the agreement ($0.9001)
and resulted in full recognition of $1,200,133 in consulting services expense.
The services provided and to be provided under this
service agreement are as follows:
In consideration for the Services to be provided, the
Company shall pay or compensate the Service Company as follows:
Indebtedness
of Management
No
officer, director or security holder known to us to own of record or beneficially more than 5% of our Common Stock or any member
of the immediate family or sharing the household (other than a tenant or employee) of any of the foregoing persons is indebted
to us in the years 2015 and 2014.
Page 57
KINERJAPAY CORP.
1,450,000 SHARES OF COMMON STOCK
PROSPECTUS
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR THAT WE HAVE
REFERRED YOU TO. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS
DIFFERENT. THIS PROSPECTUS IS NOT AN OFFER TO SELL COMMON STOCK AND IS NOT SOLICITING AN
OFFER TO BUY COMMON STOCK IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Until _____________, all dealers that effect transactions in these securities whether
or not participating in this Offering may be required to deliver a Prospectus. This is in
addition to the dealer's obligation to deliver a Prospectus when acting as
underwriters.
The Date of This Prospectus is July __, 2016
Page 58
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
All amounts are estimates other than the Commission's registration
fee. We are paying all expenses of the Offering listed above. No portion of these expenses
will be borne by the Selling Shareholders. The Selling Shareholders, however, will pay any
other expenses incurred in selling their Common Stock, including any brokerage commissions
or costs of sale.
Item 14. Indemnification of Directors and Officers
Our directors and officers are indemnified as provided by the Delaware
corporate law and our Bylaws. We have agreed to indemnify each of our directors and
certain officers against certain liabilities, including liabilities under the Act. Insofar
as indemnification for liabilities arising under the Act may be permitted to our
directors, officers and controlling persons pursuant to the provisions described above, or
otherwise, we have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against such
liabilities (other than our payment of expenses incurred or paid by our director, officer
or controlling person in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities
being registered, we will, unless in the opinion of our counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
We have been advised that in the opinion of the Securities and Exchange
Commission indemnification for liabilities arising under the Act is against public policy
as expressed in the Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities is asserted by one of our directors, officers, or
controlling persons in connection with the securities being registered, we will, unless in
the opinion of our legal counsel the matter has been settled by controlling precedent,
submit the question of whether such indemnification is against public policy to a court of
appropriate jurisdiction. We will then be governed by the court's decision.
Section 102 of the Delaware General Corporation Law permits a
corporation to eliminate the personal liability of its directors or its stockholders for
monetary damages for a breach of fiduciary duty as a director, except where the director
breached his or her duty of loyalty, failed to act in good faith, engaged in intentional
misconduct or knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law or obtained an improper personal
benefit. Our by-laws provides that no director shall be personally liable to us or our
stockholders for monetary damages for any breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability, except to the extent that
the Delaware General Corporation Law prohibits the elimination or limitation of liability
of directors for breaches of fiduciary duty.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of the
corporation and certain other persons serving at the request of the corporation in related
capacities against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlements actually and reasonably incurred by the person in connection with an
action, suit or proceeding to which he or she is party or is threatened to be made a party
by reason of such position, if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful, except that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any claim, issue or
matter as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or other adjudicating court
determines that, despite the adjudication of liability but in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnification for such expenses which the Court of Chancery or such other court shall
deem proper.
Page 59
Item 15. Recent Sales of Unregistered Securities
Sale of Unregistered Securities
The
following sets forth all securities of the
Registrant
issued and sold within the past three years which were not registered under the Act.
(1) The principal of L & L Holdings S.R.L. is
Ruiz Diaz Rolon
Rosa, a resident of Argentina.
In November 2015, the Registrant issued restricted
shares upon the conversion of convertible notes to the accredited investors set
forth below.
The Registrant
issued the original fourteen convertible notes totaling the principal amount of
$122,000 and accrued interest of $21,609 between July 2013 and
October 2015 for a total of $143,604. The notes were converted at a price of $0.01 per share. Each of the
individuals listed in the table represented to the Registrant their
status as "accredited investors."
On the dates set forth in the table below, the Registrant issued and sold
restricted securities to the individuals and entities in the table below in
reliance upon the exemptions provided in Section 4(2) of the Securities Act
of 1933, as amended (the "Act") and in reliance upon Regulation S or, in the
instance of one individual, Regulation D, promulgated by the United States
Securities and Exchange Commission under the Act. The shares of the
Registrant's common stock, par value $0.0001 (the "Shares") issued pursuant
to the Subscription Agreements were pursuant to a Unit Offering, each
consisting of one Share and one Class A Warrant exercisable to purchase one
additional Share at $1.00 for a period of 24 months.
(1)
The 1,333,333 Shares issued to PT Kinerja Indonesia
pursuant to a Services Agreement dated February 19, 2016, a copy of which is
filed as an exhibit 10.7 to the Company's Form 8-K on March 23, 2016, do not vest until eighteen months
from that date but do have voting rights on all matters submitted to the
vote of the Registrant's shareholders.
Page 60
Item 16. Exhibits and Financial Statement Schedules
(a) The
following documents are filed as exhibits to this report on Form 8-K or incorporated
by reference herein. Any document incorporated by reference is identified by a parenthetical
reference to the SEC filing that included such document.
Page 61
(a) The undersigned registrant hereby undertakes:
(5) That, for the purpose of determining liability of
the registrant under the Securities Act of 1933 to any purchaser in the
initial distribution of the securities:
Page 62
SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, as amended, the registrant has duly
caused this registration statement on Form S-1/A to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Medan, Indonesia, on
July 19, 2016.
KINERJAPAY CORP.
By:
/s/
Edwin Witarsa Ng
Pursuant to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates indicated.
ordinary
brokerage transactions and transactions in which the broker-dealer solicits the purchaser;
block trades
in which the broker-dealer will attempt to sell the shares as agent but may position and
resell a portion of the block as principal;
facilitate the transaction;
purchases by
a broker-dealer as principal and resale by the broker-dealer for its account;
an exchange
distribution in accordance with the rules of the applicable exchange;
privately negotiated
transactions;
broker-dealers
may agree with the Selling Shareholders to sell a specified number of such shares at a
stipulated price per share;
through the writing of options
on the shares
a combination of any such
methods of sale; and
any other method permitted
pursuant to applicable law.
As a result, the Registrant did not generate any
revenues from operations during the first quarter of 2016 and through April
11, 2016. The Company commenced each of its services as described below
during the 2nd quarter od 2016. From December 1, 2015, the date of the
License Agreement, until after the establishment of its Subsidiary on April
11, 2016, our generated e-commerce revenues in the approximate amount of
$66,900 were paid to PT Kinerja Indonesia. Since April 11, 2016 to date, the
Registrant has generated revenues of approximately $22,868.
- volume of transactions and price and selection of goods;
- trust in our electronic payment service;
- customer service;
-
website, Mobile App and application ease-of-use and accessibility;
-
reliability and security of our technology and system;
- reliability of
payment; and
- level of service fees.
Our stock transfer agent is Transfer Online, Inc.,
with offices located at 512 SE Salmon Street, Portland, OR 97214. Their
telephone number is (503) 227 2950, their fax number is (503) 227 6874, and
their website is transferonline.com.
Date
Title
Shares Issued
Persons
Consideration
02/05/2013
Common Stock
388,889
Isaac Berezovski
Subscription at $0.09 per share pursuant to Reg S.
02/07/2013
Common Stock
55,556
Amir Uziel
Subscription at $0.09 per share pursuant to Reg S.
03/27/2013
Common Stock
388,889
Amir Uziel
Subscription at $0.09 per share pursuant to Reg S.
03/27/2013
Common Stock
166,667
L & L Holding Ltd. (1)
Subscription at $0.09 per share pursuant to Reg S.
04/04/2013
Common Stock
166,667
Common Market Development
Ltd. (2)
Subscription at $0.09 per share pursuant to Reg S.
04/09/2013
Common Stock
111,112
Lavi Krasney
Subscription at $0.09 per share pursuant to Reg S.
04/09/2013
Common Stock
111,112
Isaac Beresovski
Subscription at $0.09 per share pursuant to Reg S.
04/07/2014
Common Stock
8,334
Ten West Holding Ltd. (3)
For services provided valued
at $0.39 per share, Section 4(2).
05/14/2014
Common Stock
2,000,000
Int. Executive Consulting
SPRL. (4)
For equipment valued
at $180,000, Section 4(2).
(2) The principal of Common Market Development Ltd. is Mr. Isaac Berezovski, a resident of
Argentina.
(3) The principal of
Ten West Holding Ltd is Marc Spitzer, a US resident.
(4) The principal of International Executive Consulting SPRL. is Mr. Leib
Zadenberg, a resident of
Belgium.
(5) The principal of IMWT
Holdings Ltd. is John Shafat, a resident Austria.
(6) The principal of Tena Holdings GmbH. is Mrs. Luba Varhaft, a resident of Austria.
Name
Date of
Conversion
Conversion
Rate
Common Stock
Issued
Amir Uziel
11/05/2015
$0.30
98,246
Dana Beresovski
11/05/2015
$0.30
140,717
Lavi Krasney
11/05/2015
$0.30
57,140
Common Market Development Ltd. (2)
11/05/2015
$0.30
20,629
Galia Zadenberg
11/05/2015
$0.30
40,216
IMWT Holdings Ltd. (5)
11/05/2015
$0.30
38,736
Asher Mediouni
11/05/2015
$0.30
36,500
Zikri Zusa
11/05/2015
$0.30
36,227
Tena Holdings GmbH (6)
11/05/2015
$0.30
10,270
Name
of Issuee
Date of Transaction
Number of Shares
Consideration/Valued (2)
Bases for Issuance
PT Kinerja Indonesia
03/21/2016
1,333,333
(1)
Services
PT Stareast Asset Management
12/29/2015
500,000
$0.50 per unit
Subscription Agreement
PT Stareast Asset Management
01/11/2016
140,000
$0.50 per unit
Subscription Agreement
Firman Eddy Limas
01/11/2016
140,000
$0.50 per unit
Subscription Agreement
Christopher Danil
01/20/2016
20,000
$0.50 per unit
Subscription Agreement
Eric Wibowo
01/19/2016
40,000
$0.50 per unit
Subscription Agreement
Henful Pang
01/19/2016
40,000
$0.50 per unit
Subscription Agreement
Hendro Tjahjono
12/31/2015
20,000
$0.50 per unit
Subscription Agreement
Jusuf Budianto
01/13/2016
20,000
$0.50 per unit
Subscription Agreement
Lau Kin Harn
01//13/2016
20,000
$0.50 per unit
Subscription Agreement
Stephanus Titus Widjaja
01/19/2016
20,000
$0.50 per unit
Subscription Agreement
Stephen Kurniadi
12/31/2015
20,000
$0.50 per unit
Subscription Agreement
Andy Litansen
01/19/2016
30,000
$0.50 per unit
Subscription Agreement
Djoahan Farida
02/02/2016
150,000
$0.50 per unit
Subscription Agreement
Silvia Silvia
02/02/2016
50,000
$0.50 per unit
Subscription Agreement
Alfred Herman Goenawan
02/26/2016
200,000
$0.50 per unit
Subscription Agreement
Jeffrey Nah Kim Boon
03/21/2016
20,000
$0.50 per unit
Subscription Agreement
Daniel Yohansha
03/01/2016
20,000
$0.50 per unit
Subscription Agreement
Syahid Liga Li
05/19/2016
200,000
$0.50 per unit
Subscription Agreement
Peter Paschal Korompis
05/05/2016
100,000
$0.50 per unit
Subscription Agreement
P.T. Stareast Asset Management
01/16/2016
140,000
$0.50 per unit
Subscription Agreement
Nicholas Augustinus Budiman
05/19/2016
20,000
$0.50 per unit
Subscription Agreement
Iskandar Tanuseputra
05/19/2016
20,000
$0.50 per unit
Subscription Agreement
Total Shares Issued
2,643,162
Disclose commissions payable to the broker-dealer and our registered representatives and
current bid and offer quotations for the securities;
Send monthly statements disclosing recent price information pertaining to the penny
stock held in a customer's account, the account's value and information regarding the
limited market in penny stocks; and
Make a special written determination that the penny stock is a suitable investment for
the purchaser and receive the purchaser's written agreement to the transaction, prior to
conducting any penny stock transaction in the customer's account.
KINERJAPAY CORP.
(formerly Solarflex Corp.)
Balance Sheets
As of
March 31, 2016 (Unaudited) and December 31, 2015
Back to Table of Contents
March 31, 2016
(Unaudited)
December 31, 2015
Current assets:
Cash
$
578,956
$
81
Restricted cash
-
250,113
Total current assets
578,956
250,194
Total Assets
$
578,956
$
250,194
Current liabilities:
Accounts payable - trade
$
12,500
-
Accrued
interest
-
15
Unissued stock
subscriptions
-
250,013
Notes payable
-
24,439
Total current liabilities
12,500
274,467
Total liabilities
12,500
274,467
Stockholders'
Deficit:
Preferred stock, par value
$0.0001 per share; 10,000,000 shares authorized; none issued
-
-
Common
stock, par value $0.0001 per share; 500,000,000 shares authorized;
7,467,013 shares issued and outstanding at March 31, 2016
and
4,653,680 shares issued and outstanding at December 31, 2015
746
465
Additional
paid-in capital
2,812,698
863,093
Accumulated deficit
(2,246,988)
(887,831)
Total stockholders' deficit
566,456
(24,273)
Total Liabilities and Stockholders' Deficit
$
578,956
$
250,194
See notes
to unaudited interim financial statements.
KINERJAPAY CORP.
(formerly Solarflex Corp.)
Statements of Operations
For the Three Months Ended March 31, 2016 and 2015
(Unaudited)
Back to Table of Contents
For the
For the
Three Months Ended
Three Months Ended
March 31, 2016
March 31, 2015
Revenue
$
-
$
-
Expenses:
General and administrative
1,350,151
9,148
Total general and
administrative expenses
1,350,151
9,148
(Loss) from operations
(
1,350,151
)
(
9,148
)
Other income (expense):
Interest expense
(3)
(3,315)
Loss on
conversion of debt
(9,003)
(3,315)
Amortization of debt
discount
-
(15,975)
Total costs and expenses
(
1,359,157
)
(28,438)
Net loss before income taxes
(1,359,157)
(28,438)
Income taxes
-
-
Net loss
$
(1,359,157)
$
(28,438)
Basic and diluted per share amounts:
Basic and diluted net loss
$
(0.21)
$
(0.00)
Weighted average shares
outstanding (basic and diluted)
6,412,325
4,508,333
See notes
to unaudited interim financial statements.
KINERJAPAY CORP.
(formerly Solarflex Corp.)
Statements of Cash
Flows
For the Three Months Ended March 31, 2016 and 2015
(Unaudited)
Back to Table of Contents
For
the
For
the
Three
Months Ended
Three
Months Ended
March 31, 2016
March 31, 2015
Cash flows from operating activities:
Net loss
$
(1,359,157)
$
(28,438)
Adjustments required to
reconcile net loss to cash used in operating activities:
Amortization of debt discount
-
15,975
Common stock issued for services
1,200,133
-
Changes in net assets and liabilities:
Increase (decrease) in
accounts payable and accrued liabilities
12,485
1,315
Net cash used in operating activities
(137,536)
(11,148)
Cash flows from
financing activities:
Proceeds from issuance of common stock
474,987
-
Proceeds from debt
-
20,000
Principal
payments made on debt
(8,689)
-
Net cash provided by financing activities
466,298
20,000
Change in cash
328,762
8,852
Cash - Beginning of period
250,194
1,824
Cash - End of
period
$
578,956
$
10,676
See notes to unaudited interim financial
statements.
Supplemental Cash Flow Disclosure:
Debt discount
attributable to beneficial conversion feature
$
-
$
13,333
Stock issued to settle
debt
$
15,750
$
-
Settlement of
restricted cash with common stock issuance
$
250,013
$
-
See notes
to unaudited interim financial statements.
(formerly Solarflex Corp.)
Back to Table of Contents
-
Quoted prices for identical or similar assets or liabilities in inactive
markets;
- Inputs other than quoted prices that are observable for the
asset or liability;
- Inputs that are derived principally from or
corroborated by observable market data by correlation or other means.
KinerjaPay Corp. (formerly
Solarflex Corp.)
www.mkacpas.com
Houston, Texas
February
11, 2016
KINERJAPAY CORP.
(formerly Solarflex Corp.)
Balance Sheets
As of December 31, 2015 and 2014
Back to Table of Contents
December 31, 2015
December 31, 2014
Current assets:
Cash
$
81
$
1,824
Restricted cash
250,113
-
Total current assets
250,194
1,824
Total Assets
$
250,194
$
1,824
Current liabilities:
Accrued
expenses
$
-
4,150
Accrued
interest
15
9,810
Unissued stock
subscriptions
250,013
-
Notes payable
24,439
-
Convertible notes
payable, net of discount of $0 and $21,725, respectivly.
-
77,275
Total current liabilities
274,467
91,235
Total liabilities
274,467
91,235
Stockholders'
Deficit:
Common
stock, par value $0.0001 per share; 500,000,000 shares authorized;
139,610,386 shares issued and outstanding at December 31, 2015
and
135,249,990 shares issued and outstanding at December 31, 2014
13,961
13,525
Additional
paid-in capital
849,597
491,791
Accumulated deficit
(887,831)
(594,727)
Total stockholders' deficit
(24,273)
(89,411)
Total Liabilities and Stockholders' Deficit
$
250,194
$
1,824
The accompanying notes to financial statements are an
integral part of these financial statements.
KINERJAPAY CORP.
(formerly Solarflex Corp.)
Statements of
Operations
For the Years ended December 31, 2015 and 2014
Year Ended
Year Ended
December 31, 2015
December 31, 2014
Revenue
$
-
$
-
Expenses:
General and administrative
44,932
108,240
Total
general and administrative expenses
44,932
108,240
(Loss) from
operations
(44,932)
(108,240)
Other income
(expense)
Interest expense
(11,809)
(9,161)
Amortization of debt discount
(37,058)
(70,864)
Loss of extinguishment of debt
(199,305)
-
Total
expense
(293,104)
(188,265)
Provision
for income taxes
-
-
Net
(loss)
$
(293,104)
$
(188,265)
(Loss) per common
share:
(Loss) per common
share - basic and diluted
$
(0.00)
$
(0.00)
Weighted
average number of common shares outstanding (basic and diluted)
136,275,147
135,183,552
The accompanying notes to financial statements are
integral part of these financial statements.
KINERJAPAY CORP.
(formerly Solarflex Corp.)
Statement of Changes in Stockholders' Equity (Deficit)
For the
Years Ended December 31, 2015 and 2014
Back to Table of Contents
Additional
Accumulated
Balance at December 31, 2013
134,999,990
$
13,500
$
381,316
$
(406,462)
$
(11,646)
Beneficial conversion feature
-
-
78,000
-
78,000
Stock issued for services
250,000
25
32,475
-
32,500
Net loss for the period
-
-
-
(188,265)
(188,265)
Balance at December 31, 2014
135,249,990
$
13,525
$
491,791
$
(594,727)
$
(89,411)
Beneficial conversion feature
-
-
15,333
-
15,333
Loss of debt extinguishment
-
-
199,305
-
199,305
Stock issued to settle debt and accrued interest
14,360,396
1,436
142,168
-
143,604
Cancelled shares
(10,000,000)
(1,000)
1,000
-
-
Net loss for the period
-
-
-
(293,104)
(293,104)
Balance at December 31, 2015
139,610,386
$
13,961
$
849,597
$
(887,831)
$
(24,273)
The accompanying notes to financial statements are
integral part of these financial statements.
KINERJAPAY CORP.
(formerly Solarflex Corp.)
Statements of Cash
Flows
For the years ended December 31, 2015 and 2014
Year Ended
Year Ended
December 31, 2015
December 31, 2014
Cash flows from
operating activities:
Net
loss
$
(293,104)
$
(188,265)
Adjustments
required to reconcile net (loss) to net cash (used in) operating activities:
Amortization of debt discount
37,058
70,864
Loss on extinguishment of debt
199,305
-
Common stock issued for services
-
32,500
Changes in net
assets and liabilities:
Increase (decrease) in accounts payable and accrued liabilities
7,659
6,754
Net cash used in operating activities
(49,082)
(78,147)
Cash flows from
financing activities:
Proceeds of debt
47,439
79,000
Proceeds from restricted common stock offering
250,013
-
Net cash provided by financing activities
297,452
79,000
Net (decrease)
increase in cash
248,370
853
Cash - Beginning
of period
1,824
971
Cash
- End of period
$
250,194
$
1,824
Supplemental
Disclosure of Non-Cash Transactions:
Debt discount attributable to beneficial conversion feature
$
15,333
$
78,000
Stock issued to settle debt and accrued interest
$
143,604
$
-
Stock returned to treasury
$
1,000
$
-
The accompanying notes to financial statements are
integral part of these financial statements.
(formerly Solarflex Corp.)
Notes to Financial Statements
Back to Table of Contents
- Quoted
prices for similar assets or liabilities in active markets;
- Quoted
prices for identical or similar assets or liabilities in inactive markets;
- Inputs other than quoted prices that are observable for the asset or
liability;
- Inputs that are derived principally from or corroborated by
observable market data by correlation or other means.
If the asset or
liability has a specified (contractual) term, the level 2 input must be
observable for substantially the full term of the asset or liability.
Future tax benefit
arising from net operating loss carryover
166,948
114,025
Competitors may develop
alternatives that render our Portal services redundant or
unnecessary;
Our
proprietary technology may be shown to have characteristics that may render
it insufficient for our business;
Our
Portal may not become widely accepted by consumers and merchants; and
Strict,
new government regulations and
inappropriate e-commerce policies, especially in an emerging economy such as
Indonesia, may
hinder the growth of the e-commerce market.
Name
Age
Title
Edwin Witarsa Ng,
34
CEO and
Chairman
Budi Sidarta Pranata
49
CFO
Deny Rahardjo
45
CEO of P.T. Kinerja Pay Indonesia
Other
Restricted
Securities
Annual
Stock
Underlying
All Other
Compensation
Award(s)
Options
Compensation
Name and
Principal Position
Sergei Rogov, former CEO,
CFO, Director (1)
2015
0
0
0
0
0
0
2014
0
0
0
0
0
0
2013
0
0
0
0
0
0
Jonathan
Beresovsky, former CFO (2)
2013
0
0
0
0
0
0
(2) Jonathan Beresovsky was the
Company's CFO since inception and resigned on June 11, 2013 as an officer.
Name and Address of
Beneficial Owner
Number of Shares of Common
Stock Beneficially
Owned
Percent of
Common
Stock Beneficially Owned (3)
Edwin Witarsa Ng,
CEO and Chairman (1)
1,666,667
22.32%
Jl. Multatuli, No.8A
Medan, 20151, Indonesia
Budi Sidarta Pranata,
CFO
0
0%
Jl. Multatuli, No.8A
Medan, 20151, Indonesia
Sergei Rogov,
former CEO, CFO and Director
400,000
5.35%
12 Abba Hiller Silver Street, 11th Floor
Ramat Gan, Israel
P.T. Starest Asset Management (2)
640,000
8.57%
JI Gurindam 12 Lagoi RT. 003 RW. 001, Desa Sebong Lagoi Kec. Teluk Sebong
Bintan
Kepulauan Riau, Indonesia
Total Officers (2 people)
3,000,000
22.32%
(2) Wendy Teoh, an Indonesian resident and
citizen, exercises the sole voting and dispositive powers with respect to these
shares.
(3) Applicable percentage ownership is based on 7,467,013 shares of Common
Stock outstanding as of July 18, 2016. Beneficial ownership is determined in
accordance with the rules of the Securities and Exchange Commission and
generally includes voting or investment power with respect to securities. Shares
of Common Stock that are currently exercisable or exercisable within 60 days of
July 19, 2016 are deemed to be beneficially owned by the person holding such
securities for the purpose of computing ownership of such
person, but are not treated as outstanding for the purpose of computing the
percentage ownership of any other person.
(a) The Service Company shall
provide the Company and the Subsidiary with the following services
during a term of three (3) years from the date first set forth above
(the "Services"), for which the Subsidiary shall pay the Service
Company.
(i) General Business Services: which shall include
personnel, office facilities and equipment, utilities, and related
overhead and operational expenses and shall be provided under the
direction and control of a designated project manager; and
(ii)
Technical Services: which shall include, but not be limited to, Web
Hosting, Web Maintenance, Web Updates and System Upgrades, from
time-to-time, which Technical Services will be fulfilled by a minimum of
five (5) experienced computer engineers / programmers, one (1) algorithm
specialist and two (2) trained technical engineers who shall maintain
the servers provided by the Service Company and support the Subsidiary's
full time operations. In addition, the Service Company, in support of
the Technical Services, shall guarantee ninety-nine point nine-nine
(99.99%) percent uptime of the Company's domains and applications, and
provide all requisite support for the traffic to the Company's domains
with unlimited bandwidth and scalable uplink whenever the traffic to the
domains increases, from time-to-time; and
(iii) R&D Services: which
shall include, but not be limited to, the development of new features,
products, or services related to the KinerjaPay IP and KinerjaPay.com.
In connection with the R&D Services, the Parties acknowledge that all
new KinerjaPay IP that is developed or for which enhancements are
created for KinerjaPay IP already in existence at the date of this
Agreement ("Additional IP") shall belong exclusively to the Company and
its Subsidiary. The Parties further agree that in each instance, they
will, in "good faith," negotiate and execute separate, supplemental
addendums to this Agreement to address the Services to be provided by
the Service Company with respect to the Additional IP.
(b) The
Subsidiary shall responsible for the following:
(i) Sales and
Marketing: PT. KinerjaPay Indonesia shall cover and be directly
responsible for all sales and marketing activities and expenses
associated with the commercial exploitation of the License for the
KinerjaPay IP; and
(ii) Billing and Collections: PT. KinerjaPay
Indonesia shall be responsible for all billing and collections and book
all revenues generated by and from commercial exploitation of the
License; and
(iii) Advertising and Sales Reps: PT. KinerjaPay
Indonesia shall at all times maintain a staff of at least three (3)
sales reps;
(iv) Office and Administration: PT. KinerjaPay Indonesia
shall retain at least one (1) person to provide
office/administrative/accounting services to fulfill the duty of
Subsidiary in Section 1B(ii) above.
(i)
The Company shall issue to the Service Company 1,333,333 restricted. The
restricted shares shall not be deemed fully-paid and non-assessable
until eighteen (18) months from the date first set forth above; and
(ii) The Subsidiary, on a quarterly basis, shall pay the Service Company
for the services, facilities and personnel provided by the Service
Company be at the rate set forth in Appendix A attached hereto; and
(iii) The Subsidiary, on a quarterly basis, shall pay the Service
Company royalties equal to one (1%) percent of the net revenues
generated from the commercial exploitation of the License; and
(iv)
The Service Company shall be paid a one-time set-up fee of $55,000
within three (3) business days of the execution of this Agreement.
Securities
and Exchange Commission registration fee
$
112
Accounting
fees and expenses
$
2,000
Legal fees
and expense
$
30,000
Total
$
32,112
Date
Title
Shares Issued
Persons
Consideration
02/05/2013
Common Stock
388,889
Isaac Berezovski
Subscription at $0.09 per share pursuant to Reg S.
02/07/2013
Common Stock
55,556
Amir Uziel
Subscription at $0.09 per share pursuant to Reg S.
03/27/2013
Common Stock
388,889
Amir Uziel
Subscription at $0.09 per share pursuant to Reg S.
03/27/2013
Common Stock
166,667
L & L Holding Ltd. (1)
Subscription at $0.09 per share pursuant to Reg S.
04/04/2013
Common Stock
166,667
Common Market Development
Ltd. (2)
Subscription at $0.09 per share pursuant to Reg S.
04/09/2013
Common Stock
111,112
Lavi Krasney
Subscription at $0.09 per share pursuant to Reg S.
04/09/2013
Common Stock
111,112
Isaac Beresovski
Subscription at $0.09 per share pursuant to Reg S.
04/07/2014
Common Stock
8,334
Ten West Holding Ltd. (3)
For services provided valued
at $0.39 per share, Section 4(2).
05/14/2014
Common Stock
2,000,000
Int. Executive Consulting
SPRL. (4)
For equipment valued
at $180,000, Section 4(2).
(2) The principal of Common Market Development Ltd. is Mr. Isaac Berezovski, a resident of
Argentina.
(3) The principal of
Ten West Holding Ltd is Marc Spitzer, a US resident.
(4) The principal of International Executive Consulting SPRL. is Mr. Leib
Zadenberg, a resident of
Belgium.
(5) The principal of IMWT
Holdings Ltd. is John Shafat, a resident Austria.
(6) The principal of Tena Holdings GmbH. is Mrs. Luba Varhaft, a resident of Austria.
Name
Date of
Conversion
Conversion
Rate
Common Stock
Issued
Amir Uziel
11/05/2015
$0.30
98,247
Dana Beresovski
11/05/2015
$0.30
140,717
Lavi Krasney
11/05/2015
$0.30
57,141
Common Market Development Ltd. (2)
11/05/2015
$0.30
618,873
Galia Zadenberg
11/05/2015
$0.30
20,630
IMWT Holdings Ltd. (5)
11/05/2015
$0.30
38,736
Asher Mediouni
11/05/2015
$0.30
36,501
Zikri Zusa
11/05/2015
$0.30
36,227
Tena Holdings GmbH (6)
11/05/2015
$0.30
10,270
Name
of Issuee
Date of Transaction
Number of Shares
Consideration/Valued (2)
Bases for Issuance
PT Kinerja Indonesia
03/21/2016
1,333,333
(1)
Services
PT Stareast Asset Management
12/29/2015
500,000
$0.50 per unit
Subscription Agreement
Firman Eddy Limas
01/11/2016
140,000
$0.50 per unit
Subscription Agreement
Christopher Danil
01/20/2016
20,000
$0.50 per unit
Subscription Agreement
Eric Wibowo
01/19/2016
40,000
$0.50 per unit
Subscription Agreement
Henful Pang
01/19/2016
40,000
$0.50 per unit
Subscription Agreement
Hendro Tjahjono
12/31/2015
20,000
$0.50 per unit
Subscription Agreement
Jusuf Budianto
01/13/2016
20,000
$0.50 per unit
Subscription Agreement
Lau Kin Harn
01/13/2016
20,000
$0.50 per unit
Subscription Agreement
Stephanus Titus Widjaja
01/19/2016
20,000
$0.50 per unit
Subscription Agreement
Stephen Kurniadi
12/31/2015
20,000
$0.50 per unit
Subscription Agreement
Andy Litansen
01/19/2016
30,000
$0.50 per unit
Subscription Agreement
Djoahan Farida
02/02/2016
150,000
$0.50 per unit
Subscription Agreement
Silvia Silvia
02/02/2016
50,000
$0.50 per unit
Subscription Agreement
Alfred Herman Goenawan
02/26/2016
200,000
$0.50 per unit
Subscription Agreement
Jeffrey Nah Kim Boon
03/21/2016
20,000
$0.50 per unit
Subscription Agreement
Daniel Yohansha
03/01/2016
20,000
$0.50 per unit
Subscription Agreement
Syahid Liga Li
05/19/2016
200,000
$0.50 per unit
Subscription Agreement
Peter Paschal Korompis
05/05/2016
100,000
$0.50 per unit
Subscription Agreement
P.T. Stareast Asset Management
01/16/2016
140,000
$0.50 per unit
Subscription Agreement
Nicholas Augustinus Budiman
05/19/2016
20,000
$0.50 per unit
Subscription Agreement
Iskandar Tanuseputra
05/19/2016
20,000
$0.50 per unit
Subscription Agreement
Total Shares Issued
2,643,162
Exhibit
Description
3.1
Original Certificate of
Incorporation of the Company, filed herewith.
3.1(i)
Certificate of Amendment to the Certificate of
Incorporation, filed herewith.
3.1(ii)
Certificate of Amendment to the Certificate of
Incorporation, filed herewith.
3.2
Bylaws of the Company,
filed herewith.
3.3
Form of Common Stock Certificate of the Company,
incorporated by reference and
attached to the Registration Statement on Form S1,
filed on February 8, 2012.
3.3
Form of Common Stock Certificate of the Company,
incorporated by reference and
attached to the Registration Statement on Form S1,
filed on February 8, 2012.
5.1
Opinion of Thomas J. Craft,
Jr., Esq.,
incorporated by reference and
attached to the Registration Statement on Form S1,
filed on May 11, 2016.
10.1
Patent Assignment Agreement,
incorporated by reference and
attached to the Registration
Statement on Form S1, filed on February 8,
2012.
10.2
Assets
Purchase Agreement between the Company and International Executive
Consulting SPRL,
incorporated by reference and
filed with the Company's Form 8-K on May 20,
2013.
10.3
Asset
Purchase Rescission Agreement dated November 10, 2015,
incorporated by reference and
filed with
the Company's Form 8-K on November 17, 2015.
10.4
Memorandum of Understanding dated November 15, 2015,
incorporated by reference and
filed with
the Company's Form
8-K on November 17, 2015.
10.5
License
Agreement between the Registrant and PT Kinerja dated December 1,
2015
,
incorporated by reference and
filed with the
Company's Form 8-K on December 2, 2015.
10.6
Amendment
to License Agreement between the Registrant and PT Kinerja dated
December 29, 2015,
incorporated by reference and
filed with
the Company's Form 8-K on January
4, 2016.
10.7
Service Agreement between the
Registrant's wholly-owned subsidiary PT Kinerja Pay Indonesia and PT Kinerja Indonesia,
incorporated by reference and
filed
with the Company's Form 8-K on March 23, 2016.
10.8
Reg S Subscription Agreement
between the Company and P.T. Stareast Asset Management, filed
herewith.
10.9
Reg S Subscription Agreement
between the Company and Ferman Eddy Limas, filed herewith.
10.10
Reg S Subscription Agreement
between the Company and Christopher Danil, filed herewith.
10.11
Reg S Subscription Agreement
between the Company and Eric Wibowo, filed herewith.
10.12
Reg S Subscription Agreement
between the Company and Henful Pang, filed herewith.
10.13
Reg S Subscription Agreement
between the Company and Hendro Tjahjono, filed herewith.
10.14
Reg S Subscription Agreement
between the Company and Jusuf Budianto, filed herewith.
10.15
Reg S Subscription Agreement
between the Company and Lan Kim Harn, filed herewith.
10.16
Reg S Subscription Agreement
between the Company and Stephanus Titus Widjaja, filed herewith.
10.17
Reg S Subscription Agreement
between the Company and Stephen Kurniadi, filed herewith.
10.18
Reg S Subscription Agreement
between the Company and Andy Litausen, filed herewith.
10.19
Reg S Subscription Agreement
between the Company and Djoahan Farida, filed herewith.
10.20
Reg S Subscription Agreement
between the Company and Silvia Silvia, filed herewith.
10.21
Reg S Subscription Agreement
between the Company and Alfred Herman Goenawan, filed herewith.
10.22
Reg S Subscription Agreement
between the Company and Jeffrey Nah Kim Boon, filed herewith.
10.23
Reg S Subscription Agreement
between the Company and Daniel Yohansha, filed herewith.
10.24
Reg S Subscription Agreement
between the Company and Syahid Liga Li, filed herewith.
10.25
Reg S Subscription Agreement
between the Company and Peter Paschal Korompis, filed herewith.
10.26
Reg S Subscription Agreement
between the Company and P.T
Stareast Asset Management, filed herewith.
10.27
Reg S Subscription Agreement
between the Company and Nickolas Augustinus Budiman, filed herewith.
10.28
Reg S Subscription Agreement
between the Company and Iskandar Tanuseputra, filed herewith.
21
List of Subsidiaries, filed herewith.
17.1
Letter of Resignation of Sergei Rogov dated April 1, 2016,
incorporated by reference and
filed with the Company's Form 8-K on
April 4, 2016.
23
Consent of Independent
Registered Public Accounting Firm, filed herewith.
(1)
To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(iii) To include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness.
Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such date of first use.
(b) Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of
the SEC such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
The undersigned registrant
undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to
such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be filed
pursuant to Rule 424 (Section 230.424 of this chapter);
(ii) Any free
writing prospectus relating to the offering prepared by or on behalf of
the undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about the
undersigned registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any other communication that is an
offer in the offering made by the undersigned registrant to the
purchaser.
Edwin Witarsa Ng
Chief Executive Officer
(Principal Executive Officer)
Signature
Title
Date
/s/
Edwin Witarsa Ng
Chairman of the Board
July 19,
2016
Edwin Witarsa Ng
/s/
Edwin Witarsa Ng
Chief Executive Officer
(Principal Executive Officer)
July 19,
2016
Edwin Witarsa Ng
/s/ Budi Sidarta Pranata
Chief Financial Officer
(Principal Financial and Principal Accounting Officer)
July 19,
2016
Budi Sidarta Pranata
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF
INCORPORATION
OF
SOLARFLEX CORP.
Solarflex Corp., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Company”), does hereby certify:
Article I. The Board of Directors of the Company (the “Board”), acting by written consent in accordance with Section 141(f) of the General Corporation Law of the State of Delaware, adopted a resolution authorizing the Company to effect a ten-for-one (10:1) forward stock split of the Common Stock, par value $0.0001, whereby every one (1) issued and outstanding share of the Company’s Common Stock (including each share of treasury stock), shall automatically and without any action on the part of the holder thereof be split into ten (10) fully paid and nonassessable shares of Common Stock of the Company (the “Common Stock”) and to file this Certificate of Amendment:
Article FOURTH of the Certificate of Incorporation of the Company is hereby deleted in its entirety and amended and restated as follows:
“The Corporation shall be authorized to issue two billion (2,000,000,000) shares of capital stock, of which one billion nine hundred and eighty million (1,980,000,000) shares shall be shares of common stock, par value $0.0001 per share (“Common Stock”) and twenty million (20,000,000) shares shall be shares of preferred stock, par value of $0.0001 per share, which may be issued in one or more series (“Preferred Stock”). The Board of Directors of the Corporation is authorized to fix the powers, preferences, rights, qualifications, limitations or restrictions of the Preferred Stock and any series thereof pursuant to Section 151 of the Delaware General Corporation Law; and the 13,500,000 shares of Common Stock that are issued and outstanding shall be subject to a forward split on a ten-for-one (10:1) basis."
Article II. That in lieu of a meeting and vote of stockholders, the holders of a majority in interest of record of the issued and outstanding shares of Common Stock have given Written Consent to said amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.
Article III. That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Section 242 of the General Corporation Law of the State of Delaware.
[Signature page follows]
IN WITNESS WHEREOF, said Solarflex Corp. has caused this certificate to be signed by Sergey Rogov, its Chief Executive Officer & Chairman of the Board, this 20th day of September 2013.
SOLARFLEX CORP.
By: Sergey Rogov, CEO and Chairman
Dated: September 20, 2013
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Solarflex Corp., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That at a meeting of the Board of Directors of Solarflex Corp. (the "Corporation") resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said Corporation, declaring said amendment to be advisable and based upon the written consent of stockholders of said Corporation holding a majority of the outstanding shares of common stock for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this Corporation be amended by changing the Article thereof numbered "FIRST" and "FOURTH" so that, as amended, said Articles shall be and read as follows:
"FIRST: The name of the Corporation is: KinerjaPay Corp."
"FOURTH: The Corporation shall be authorized to issue five hundred and ten million (510,000,000) shares of capital stock, of which five hundred million (500,000,000) shares shall be shares of common stock, par value $0.0001 per share ("Common Stock") and ten million (10,000,000) shares shall be shares of preferred stock, par value of $0.0001 per share, which may be issued in one or more series ("Preferred Stock"). The Board of Directors of the Corporation is authorized to fix the powers, preferences, rights, qualifications, limitations or restrictions of the Preferred Stock and any series thereof pursuant to Section 151 of the Delaware General Corporation Law; and the 139,610,386 shares of Common Stock that are issued and outstanding shall be subject to a reverse stock split of one-for-thirty (1:30) basis."
SECOND: That thereafter, pursuant to resolution of its Board of Directors, and based upon the written consent of holders of a majority of the shares of common of said Corporation in accordance with Section 228 of the General Corporation Law of the State of Delaware, the necessary number of shares as required by statute, were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed this 15th day of January 2016.
By:
/s/ Sergei Rogov
Name: Sergei Rogov
Title: Chief Executive Officer, Chief Financial Officer and Director
By: /s/:
Edwin Witarsa Ng
Name: Edwin Witarsa Ng
Title: Chairman
TABLE OF CONTENTS
Article Subject
ARTICLE I OFFICES
Section 1 Principal Office
Section 2 Other Office
ARTICLE II MEETINGS OF STOCKHOLDERS
Section 1 Place of Meetings
Section 2 Time and Notice of Annual Meetings
Section 3 Special Meeting
Section 4 Quorum
Section 5 Waiver of Notice for Meetings
Section 6 Record Date and Cumulative Voting
Section 7 Proxies
Section 8 Validity of Proxies
ARTICLE III BOARD OF DIRECTORS
Section 1 Exercise of corporate Powers
Section 2 Authorized Number
Section 3 Election and Term of Office
Section 4 Vacancies
Section 5 Compensation
Section 6 Advisory Directors
Section 7 Resignations
ARTICLE IV MEETINGS OF DIRECTORS
Section 1 Place of Meetings
Section 2 Time of Meetings
Section 3 Special Meetings
Section 4 Quorum
Section 5 Waiver of Notice
S
ection 6 Action Without a Meeting
Section 7 Committees
ARTICLE V OFFICERS
Section 1 Officers
Section 2 Chairman of the Board
Section 3 President
Section 4 Vice Presidents
Section 5 Secretary
Section 6 Assistant Secretary
Section 7 Chief Financial Officer
Section 9 Assistant Treasurer
Section 9 Chief Operating Officer
ARTICLE VI AMENDMENTS
Section 1 Amendment to By-Laws
ARTICLE VII INDEMNIFICATION OF DIRECTORS AND OFFICER
Section 1 Right to Indemnification
Section 2 Right of Claimant to Sue
Section 3 Non-Exclusivity of Rights
Section 4 Insurance
ARTICLE VIII SHARES
Section 1 Forms of Stock Certificate
Section 2 Transfer of Certificates
Section 3 Record Date for Annual Meeting or Dividend
Section 4 Stock Register Closure
BY-LAWS
OF
KINERJA PAY CORP.
ARTICLE I
Corporate Offices
Section 1. The principal executive office for the transaction of the business of the corporation is hereby fixed and located at Jl. Multatuli, No.8A, Medan, 20151 Indonesia by board of directors may change said principal executive office from one location to another.
Section 2. Branch or subordinate offices may be established by the board of directors at any place or places where the corporation is qualified to do business.
ARTICLE II
Meetings of Stockholders
Section 1. All meetings of the stockholders shall be held at any place within or without the State of Delaware, which may be designated by the board of directors or by the written consent of a majority of all stockholders entitled to vote thereat and not present at the meeting, given either before or after the meeting and filed with the secretary of the corporation. In the absence of any such designation all stockholders' meetings shall be held at the principal executive office of the corporation.
Section 2. The board of directors shall determine the time and date of the annual meeting of stockholders. At the meeting, directors shall be elected and any other proper business may be transacted which is within the powers of the stockholders. Written notice of each annual meeting shall be given to each stockholder entitled to vote either personally or by first-class mail or other means of written communication (which includes, without limitation and wherever used in these bylaws, telegraphic and facsimile communication), charges prepaid, addressed to each stockholder at his address appearing on the books of the corporation or given by him to the corporation for the purpose of notice. If any notice or report addressed to the stockholder at the address of such stockholder appearing on the books of the corporation is returned to the corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice or report to the stockholder at such address, all future notices or reports shall be deemed to have been duly given without further mailing if the same shall be available for the stockholder upon written demand of the stockholder at the principal executive office of the corporation for a period of one year from the date of the giving of the notice or report to all other stockholders. If no address of a stockholder appears on the books of the corporation or is given by the stockholder to the corporation, notice is duly given to him if sent by mail or other means of written communication addressed to the place where the principal executive office of the corporation is located. All such notices shall be given to each stockholder entitled thereto not less than ten (10) days nor more than sixty (60) days before each annual meeting. Any such notice shall be deemed to have been given at the time when delivered personally or deposited in the United States mail or delivered to a common carrier for transmission to the recipient or actually transmitted by the person giving the notice by electronic means to the recipient or sent by other means of written communication.
Such notices shall state:
a. the place, date and hour of the meeting;
b. those matters which the board, at the time of the mailing of the notice, intends to
present for action by the stockholders;
c. if directors are to be elected, the names of nominees intended at the time of the
notice to be presented by management for election; and
d. such other matters, if any, that may be expressly required by statute or, if
applicable, any matters set forth in Section 6 herein.
Section 3. Special meetings of the stockholders for the purpose of taking any action permitted to be taken by the stockholders under the Delaware General Corporation Law and the Certificate of Incorporation at this corporation may be called by the chairman of the board or the president, or by any vice president, or by the board of directors, or by the holders of shares entitled to cast not less than ten percent (10%) of the votes at the meeting. Except in special cases where other express provision is made by statute, notice of such special meetings shall be given in the same manner and contain the same statements as required for annual meetings of stockholders. Notice of any special meeting shall also specify the general nature of the business to be transacted, and no other business may be transacted at such meeting.
Section 4. The presence in person or by proxy of the holders of one third of the shares entitled to vote at any meeting shall constitute a quorum for the transactions of business. The stockholders present at a duly called or held meeting at which a quorum, if present may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum, it any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum. In the absence of a quorum, any meeting of stockholders may be adjourned from time to time by the vote of a majority of the shares represented either in person or by proxy, but no other business may be transacted except as provided in the preceding sentence.
Section 5. Any action required or permitted to be taken by the stockholders, may be taken without a meeting, if a majority of the outstanding shares shall consent in writing to such action. Such written consent or consents, shall be filed with the minutes of the proceedings of stockholders. Such action by written consent shall have the same force and effect as action approved by a majority vote of the stockholders at a duly noticed and called stockholders meeting.
Section 6. Only persons in whose names shares are registered on the books of the corporation are entitled to vote on the record date for voting purposes fixed by the board of directors pursuant to Article X, Section 3 of these bylaws, or, if there be no such date so fixed, on the record dates given below, shall be entitled to vote at such meeting.
If no record date is fixed then:
a. The record date for determining stockholders entitled to notice of, or to vote at a meeting of stockholders shall be the close of business on the business day next preceding the day an which notice is given or, if notice is waived, that the close of business on the business day next preceding the day on which the meeting is held.
b. The record date for determining the stockholders entitled to give consent to corporate actions in writing without a meeting, when no prior action by the board of directors is necessary, shall be the day on which the first written consent.
c. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating hereto, or the 60th day prior to the date of such other action whichever is later.
Section 7. Every person entitled to vote shares may authorize another person or persons to act by proxy with respect to such shares by filing a written proxy executed by such person or his or her duly authorized agent, with the secretary of the corporation.
Section 8. A proxy shall not be valid after the expiration of eleven (11) months from the date thereof unless otherwise provided in the proxy. Every proxy continues in full force and effect until revoked by the person executing it prior to the vote pursuant hereto.
ARTICLE III
Board of Directors
Section 1. Subject to the provisions of the Delaware General Corporation Law and any limitation in the Certificate of Incorporation and these bylaws as to action to be authorized or approved by the stockholders, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the board of directors. Without prejudice to such general powers, but subject to the same limitations, it is hereby expressly declared that the board of directors shall have the following powers, to wit:
First: To conduct, manage and control the affairs and business of the corporation and to make such rules and regulations therefor, nor, inconsistent with law or with the Certificate of Incorporation or with the bylaws, as they may deem best;
Second: To elect and remove at pleasure the officers, agents and employees of the corporation, prescribe their duties and fix their compensation;
Third: To authorize the issuance of shares of stock of the corporation from time to time upon such terms as may be lawful; and
Fourth: To borrow money and incur indebtedness for the purposes of the corporation and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecation or other evidences of debt and securities therefor.
Section 2. The authorized number of directors shall be not less than one (1), nor more than seven (7).
Section 3. The directors shall be elected at each annual meeting of stockholders, but if any such annual meeting is not held or the directors are not elected thereat, the directors may be elected at any special meeting of stockholders held for that purpose. Each director, including a director elected to fill a vacancy, shall hold office until his successor is elected, except as otherwise provided by statute.
Section 4. Vacancies in the board of directors, except for a vacancy created by the removal of a director, may be filled by a majority of the directors then in office, whether or not less than a quorum, or by a sole remaining director.
Section 5. Directors, as such, shall not receive any stated salary for their services, but by resolution of the board of directors a fixed sum and expense of attendance, it any, may be allowed for attendance at each regular and special meeting of the board; provided that nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving compensation therefor.
Section 6. The board of directors from time to time may elect one more person to be advisory director who shall not by such appointment be members of the board of directors. Advisory directors shall be available from time to time to perform special assignments specified by the president, to attend meetings of the board of directors upon invitation and to furnish consultation to board. The period during which the title shall be held may be prescribed by the board of directors. It no period is prescribed, the title shall be held at the pleasure of the board.
Section 7. Any director may resign effective upon giving written notice to the chairman of the board, the president, the secretary or the board of directors of the corporation, unless the notice specifies a later time for effectiveness of such resignation. If the resignation is effective at a future time, a successor may be elected to take office when the resignation becomes effective.
ARTICLE IV
Meetings of Directors
Section 1. Regular meetings of the board of directors shall be held at any place, within or without the state of Delaware that has been designated from time to time by the board of directors. In the absence of such designation, regular meetings shall be held at the principal executive office of the corporation, except as provided in Section 2. Special meetings of the board of directors may be held at any place within or without the state of Delaware which has been designated in a notice of the meeting, or, it not designated in the notice or if there is no notice, at the principal executive office of the corporation.
Section 2. Immediately following each annual meeting of the shareholders there shall be a regular meeting of the board of directors of the corporation at the place of said annual meeting or at such other place as shall have been designated by the board of directors for the purpose of organization, election of officers and the transaction of other business. Other regular meetings of the board of directors shall be held without call on such date and time as may be fixed by the board of directors; provided, however, that should any such day fall on a legal holiday, then said meeting shall be held at the same time on the next day thereafter. Notice of regular meetings of the directors is hereby dispensed with and no notice whatever of any such meeting need by given, provided that notice of any change in the time or place of regular meetings shall he given to all or the directors in the same manner as notice for special meetings of the board of directors.
Section 3. Special meetings of the board of directors for any purpose or purposes may be called at any time by the chairman of the board or president or, if both the chairman the board and the president are absent or are unable or refuse to act, by any vice president or by any two directors. Notice of the time and place of special meetings shall be delivered personally or by telephone to each director, or sent by first-class mail or telegram or facsimile transmission, charges prepaid, addressed to him at his address as it appears upon the records of the corporation, or, if it is not so shown on the records and is not readily ascertainable, at the place at which the meetings of the directors are regularly held. In case such notice is mailed, it shall be deposited in the United States mail at least four (4) days prior to the time of the holding of the meeting. In case such notice is telegraphed or sent by facsimile transmission, it shall be delivered to a common carrier for transmission to the director or actually transmitted by the person giving the notice by electronic means to the director at least forty-eight (48) hours prior to the time of the holding of the meeting. In case such notice is delivered personally or by telephone at above provided, it shall be so delivered at least twenty-four (24) hours prior to the time of the holding of the meeting. Any notice given personally or by telephone may be communicated to either or the director or to a person at the office of the director whom the person giving the notice has reason to believe will promptly communicate it to the director. Such deposit in the mail, delivery to a common carrier, transmission by electronic means or delivery, personally or by telephone, as above provided, shall be due, legal and personal notice to such directors. The notice need not specify the place of the meeting it the meeting is to be held at the principal executive office of the corporation, and need not specify the purpose of the meeting.
Section 4. Presence of a majority of the authorized number of directors at a meeting of the board of directors constitutes a quorum for the transaction of business, except as hereinafter provided. Members of the board may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, provided that any action taken is approved by at least a majority of the required quorum for such meeting. A majority of the directors present, whether or not a quorum is present, may adjourn any meeting to another time and place, if the meeting is adjourned for more than twenty-four (24) hours, notice of any adjournment to another time or place shall be given prior to the time of the adjourned meeting to the director who were not present at the time of the adjournment.
Section 5. The transactions of any meeting of the board of directors, however called or noticed or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum is present, and if, either before or after the meeting, each of the directors not present signs a written waiver of notice, or a consent to holding such meeting, or an approval of the minutes thereof. All such waivers consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Notice of a meeting shall also be deemed duly given to any director who attends the meeting without protesting prior thereto or at its commencement, the lack of notice to such director.
Section 6. Any action required or permitted to be taken by the board of directors, may be taken without a meeting if all members of the board shall individually or collectively consent in writing to such action and each written consent or consents, shall be filed with the minutes of the proceedings of the board. Such action by written consent shall have the same force and affect as a unanimous vote of such directors.
Section 7. The provisions of this Article IV shall also apply, with necessary change in points of detail, to committees of the board of directors, if any, and to actions by such committees (except for the first sentence of Section 2 of Article IV, which shall not apply, and except that special meetings of a committee may also be called at any time by any two members of the committee, unless otherwise provided by these bylaws or by the resolution of the board of directors designating such committees. For such purpose, and except as set forth herein, references to "the board" or "the other board of directors" shall be deemed to refer to each such committee and references to "directors" and "members of the board" shall be deemed to refer to members of the committee. Committees of the board of directors may be designated, and shall be subject to the limitations on their authority, as provided in section 141 of the Delaware General Corporation Law.
ARTICLE V
Officers
Section 1. The officers of the corporation shall be designated from time to time by the board of directors. Any number of offices may he bold by the same person. The officers shall be elected by the board of directors and shall hold office at the pleasure of the board.
Chairman of the Board
Section 2. The chairman of the board shall, if present, preside at all meetings of the board of directors and exercise and perform such other powers and duties as may be from time to time assigned to him by the board of directors or prescribed by the bylaws. If there is not a president, the chairman of the board shall, in addition, be the general manager and chief executive officer of the corporation and shall have the powers and duties prescribed in Section 3 of this Article V of these bylaws.
President
Section 3. Subject to such powers and duties, it any, as may be prescribed by these bylaws or the board of directors for the chairman of the board, if there be such officer, the president shall be the general manager and chief executive officer of the corporation and shall, subject to the control of the board of directors, have general supervision, direction and control of the business and officers of the corporation. He shall preside at all meetings of the stockholders and, in the absence of the chairman of the board, or if there be none, at all meetings of the board of directors. He shall have all of the powers and shall perform all of the duties which are ordinarily inherent in the office of the president, and he shall have such further powers and shall perform such further duties as may be prescribed for him by the board of directors.
Vice President
Section 4. In the absence of disability, or refusal to act of the president, the vice presidents, if any, the vice president designated by the president or the board of directors, shall perform all of the duties of the president and when so acting shall have all the powers of and be subject to all the restrictions upon the president. The vice presidents shall have such powers and perform such other duties as from time to time may be prescribed for them, respectively, by the board of directors or the bylaws.
Secretary
Section 5. The secretary shall keep or cause to be kept at the principal executive office of the corporation or such other place as the board of directors may order, a book of minutes of all proceedings of the stockholders, the board of directors and committees of the board, with the time and place of holding, whether regular or special, and if special how authorized, the notice thereof given, the names of those present at directors' and committee meetings, and the number of shares present or represented at stockholders' meetings. The secretary shall keep or cause to be kept at the principal executive office or at the office of the corporation's transfer agent a record of stockholders or a duplicate record of stockholders having the names of the stockholders and their addresses, the number of shares and classes of shares held by each, the number and date of certificates issued for the same and the number and date of cancellation of every certificate for cancellation. The secretary or an assistant secretary, or, if they are absent or unable or refuse to act, any other officer of the shall give or cause to be given notice of all the meetings of the stockholders, the board of directors and committees of the board required by the bylaws or by law to be given, and shall keep the seal of the corporation, if any, in safe custody and shall have such other powers and perform such other duties as may be prescribed by the board of directors or by the bylaws.
Section 6. It shall be the duty of the assistant secretary, if any, to assist the secretary in the performance of the duties of the office of secretary and generally to perform such other duties as may be delegated to him/her by the board of directors.
Chief Financial Officer
Section 7. The chief financial officer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of account of the corporation. He shall receive and deposit all moneys and other valuables belonging to the corporation in the name and to the credit of the corporation and disburse the same only in such manner as the board of directors or the appropriate officer of the corporation may from time to time determine, shall render to the president and the board of directors, whenever they request it, an account of all his transactions as treasurer, and of the financial condition of the corporation, and he shall perform such further duties as the board of directors may require.
Section 8. It shall be the duty of the assistant treasurer, if any, to assist the chief financial officer in the performance of his duties and generally to perform such other duties as may be delegated to him/her by the board of directors.
Section 9. The chief operating officer shall be responsible for overseeing and directing the scientific operations and personnel of the corporation, and shall perform such further duties as the board of directors may require.
ARTICLE VI
Amendments
Section 1. New bylaws may be adopted or these bylaws may be amended or repealed by the board of directors.
ARTICLE VII
Indemnification of Directors and Officers
Section 1. Right to Indemnification. Each person who was or is made a party to or witness or other participant in or is threatened to be made a party to or witness or other participant in or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative, investigative or other (hereinafter a "Proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of the proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than said Law permitted the corporation to provide prior to such amendment), against all expenses, liability and loss (including, without limitation, attorneys' fees, judgments, fines, ERISA excise taxes or penalties, amounts paid or to be paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of such expanse, liability and loss) (hereinafter collectively "expenses") reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, offices, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that except as provided in Section 2 of this Article VII, the corporation shall indemnity any such person seeking indemnification in connection with a Proceeding (or part thereof) initiated by such person only if such Proceeding (or part thereof) was authorized by the board of directors of the corporation.
The right to indemnification conferred in this Article IX shall be a contract right and shall include the right to be paid by the corporation the expenses incurred in connection with any proceeding in advance of its final disposition; provided, however, that if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding shall be made only upon delivery to the corporation of an undertaking by or an behalf of such director on officer to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article IX or otherwise. The corporation may, by action of its board of directors, provide indemnification to employees and agents of corporation with the same scope and effect as the foregoing indemnification of directors officers.
Section 2. Right of Claimant to Bring Suit. If a claim under Section 1 of this Article IX is not paid in full by the corporation within thirty days after a written claim has been received by the corporation, the claimants may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its fiscal disposition where the required undertaking, if any is required, has been tendered to the corporation) that the claimant has not met the standard of conduct which make it permissible under the Delaware General Corporation Law for the corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the corporation (including its board of directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
Section 3. Non-Exclusivity of Rights. The right to indemnification and the payment of Expenses incurred in a proceeding in advance of its final disposition conferred in this Article IX shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise.
Section 4. Insurance. The corporation may maintain insurance, at its expense, to protect itself and any person who is or was a director, officer, employee, agent or fiduciary of the corporation or who is or was serving at the request of the corporation as a director, officer, employee, agent or fiduciary of another corporation or of a partnership, joint venture, trust or other enterprise against any expenses incurred in a proceeding, whether or not the corporation, would have the power to indemnify such person against such expenses under the Delaware General Corporation Law.
ARTICLE VIII
Shares
Section 1. The corporation shall issue certificates for its shares when fully paid. Certificates of stock shall be issued in numerical order, and state the name of the recordholder of the shares represented thereby; the number, designation, if any, and class or series at shares represented thereby; and contain any statement or summary required by law. Every certificate for shares shall be signed in the name of the corporation by the chairman or vice-chairman or the board of directors or other executive officers, the president or vice-president, and the chief financial officer, the treasurer, the secretary or an assistant secretary, of, in their absence and with their written delegation, Registrant specifically appointed for the purpose.
Section 2. Upon surrender to the secretary or transfer agent of the corporation of a certificate for shares when fully paid. Certificates of stock duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Secretary of the corporation to issue a new certificate to the person entitled thereto, cancel the old and record the transaction upon its share register.
Section 3. The board of directors may fix a time in the future at a record date for the determination of the stockholders entitled to notice of and to vote at any meeting of stockholders or entitled to receive payment of any dividend or distribution, or any allotment of rights, or to exercise rights in respect to any other lawful action. The record date no fixed shall not be more than sixty (60) nor less than ten (10) days prior to the date of the meeting or event for the purpose for which it is fixed. When a record data is so fixed, only stockholders of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution, or allotment of rights, or to exercise any rights as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.
Section 4.. The board of directors may close the books of the corporation against transfers of shares during the whole or any part of a period of not more than sixty (60) days prior to the date of a stockholder's meeting, the date when the right to any dividend, distribution, or allotment of rights vests, or the effective date of any change, conversion or exchange of shares.
CERTIFICATE OF SECRETARY
KNOW ALL PERSONS BY THESE PRESENTS:
The undersigned does hereby certify that the undersigned is the Secretary of Kinder Holding Corp., a Corporation duly organized and existing under and by virtue of the laws of the State of Delaware; that the above and foregoing By-laws of said corporation were duly and regularly adopted and subsequently amended by the board of directors of said corporation; and that the above and foregoing By-laws are now in full force and affect.
Dated: July 1, 2016
/s/ Edwin Ng
_________________________________
Edwin Ng, Secretary
KINERJAPAY CORP.
DATED: December 29, 2015
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 29th day of December, 2015.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$2500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, PT. Stareast Management, organized under the laws of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 500,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 025000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 29th day of December, 2015.
Amount of Investment: $250,000.00
# of Units: 500,000
INVESTOR: PT. Stareast Management
/s/: Wendy, Director
Signature and Title of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 29th day of December, 2015.
Amount of Investment: $250,000.00
# of Units: 500,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 500,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$250,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: December 29, 2015
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of December 29, 2015, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and PT. Stareast Management, organized under the laws of Indonesia (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated December 29, 2015 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 50005
If to the Warrant Holder, then to:
PT. Stareast Management
Attn: Wendy, Director
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
PT. Stareasy Management
/s/: Wendy
By: Wendy, Director
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that PT. Stareast Management, organized under the laws of Indonesia (the "Warrant Holder"), is the registered holder of 500,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of December 29, 2015. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: December 29, 2015
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: January 11, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 11th day of January, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$700,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Firman Eddy Limas, a resident of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 140,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021400021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 11th day of January, 2016.
Amount of Investment: $70,000.00
# of Units: 140,000
INVESTOR: Firman Eddy Limas
/s/: Firman Eddy Limas
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 11th day of January, 2016.
Amount of Investment: $70,000.00
# of Units: 140,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 140,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$70,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: January 11, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of January 11, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Firman Eddy Limas, a resident of Indonesia (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated January 11, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 14005
If to the Warrant Holder, then to:
Firman Eddy Limas
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Firman Eddy Limas
By: Firman Eddy Limas
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Firman Eddy Limas, a resident of Indonesia (the "Warrant Holder"), is the registered holder of 140,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of January 11, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: January 11, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: March 1, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 2nd day of February, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Christopher Danil, a resident of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 20,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 1st day of March, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
INVESTOR: Christopher Danil
/s/: Christopher Danil
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 1st day of March, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 20,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$10,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: March 1, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of March 1, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Christopher Danil, a resident of Indonesia (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated March 1, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Christopher Danil
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Christopher Danil
By: Christopher Danil
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Christopher Danil (the "Warrant Holder"), is the registered holder of 20,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of March 1, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: February 2, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: January 19, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 19th day of January, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Eric Wibowo, a resident of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 40,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 19th day of January, 2016.
Amount of Investment: $20,000.00
# of Units: 40,000
INVESTOR: Eric Wibowo
/s/: Eric Wibowo
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 19th day of January, 2016.
Amount of Investment: $20,000.00
# of Units: 40,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 40,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$20,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: January 19, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of January 19, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Eric Wibowo, a resident of Indonesia (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated January 19, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Eric Wibowo
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Eric Wibowo
By: Eric Wibowo
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Eric Wibowo (the "Warrant Holder"), is the registered holder of 40,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of January 19, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: January 19, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: January 19, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 19th day of January, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Henful Pang, a resident of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 40,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 19th day of January, 2016.
Amount of Investment: $20,000.00
# of Units: 40,000
INVESTOR: Henful Pang
/s/: Henful Pang
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 19th day of January, 2016.
Amount of Investment: $20,000.00
# of Units: 40,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 40,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$20,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: January 19, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of January 19, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Henful Pang, a resident of Indonesia (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated January 19, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Henful Pang
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Henful Pang
By: Henful Pang
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Henful Pang (the "Warrant Holder"), is the registered holder of 40,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of January 19, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: January 19, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: December 31, 2015
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 15th day of Feburary, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Hendro Tjahjono, a resident of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 20,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 31st day of December, 2015.
Amount of Investment: $10,000.00
# of Units: 20,000
INVESTOR: Hendro Tjahjono
/s/: Hendro Tjahjono
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 31st day of December, 2015.
Amount of Investment: $10,000.00
# of Units: 20,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 20,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$10,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: December 31, 2015
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of December 31, 2015, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Hendro Tjahjono, a resident of Indonesia (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated December 31, 2015 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Hendro Tjahjono
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Hendro Tjahjono
By: Hendro Tjahjono
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Hendro Tjahjono (the "Warrant Holder"), is the registered holder of 20,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of December 31, 2015. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: December 31, 2015
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: January 13, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 13th day of January, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Jusuf Budianto, a resident of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 20,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 13th day of January, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
INVESTOR: Jusuf Budianto
/s/: Jusuf Budianto
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 13th day of January, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 20,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$10,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: January 13, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of January 13, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Jusuf Budianto, a resident of Indonesia (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated January 13, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Jusuf Budianto
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Jusuf Budianto
By: Jusuf Budianto
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Jusuf Budianto (the "Warrant Holder"), is the registered holder of 20,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of January 13, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: January 13, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: January 13, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 13th day of January, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Lau Kim Ham and Goh Pie Ham, a resident of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 20,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 13th day of January, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
INVESTOR: Lau Kim Ham and Goh Pie Ham
/s/: Lau Kim Ham and Goh Pie Ham
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 13th day of January 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 20,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$10,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: January 13, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of January 13, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Lau Kim Ham and Goh Pie Ham, residents of Singapore(, collectively, the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated January 13, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Lau Kim Ham and Goh Pie Ham
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Lau Kim Ham and Goh Pie Ham
By: Lau Kim Ham and Goh Pie Ham
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Lau Kim Ham and Goh Pie Ham (collectively, the "Warrant Holder"), is the registered holder of 20,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of January 13, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: January 13, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: January 19, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 19th day of January, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Stephanus Titus Widjaja, a resident of Singapore (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 20,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 19th day of January, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
INVESTOR: Stephanus Titus Widjaja
/s/: Stephanus Titus Widjaja
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 19th day of January, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 20,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$10,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: January 19, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of January 19, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Stephanus Titus Widjaja, a resident of Singapore (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated January 19, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Stephanus Titus Widjaja
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Stephanus Titus Widjaja
By: Stephanus Titus Widjaja
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Stephanus Titus Widjaja (the "Warrant Holder"), is the registered holder of 20,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of January 19, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: January 19, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: December 30, 2015
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 30th day of December, 2015.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Stephen Kurniadi, a resident of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 20,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 30th day of December, 2015.
Amount of Investment: $10,000.00
# of Units: 20,000
INVESTOR: Stephen Kurniadi
/s/: Stephen Kurniadi
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 30th day of December, 2015.
Amount of Investment: $10,000.00
# of Units: 20,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 20,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$10,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: December 30, 2015
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of December 30, 2015, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Stephen Kurniadi, a resident of Indonesia (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated December 30, 2015 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Stephen Kurniadi
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Stephen Kurniadi
By: Stephen Kurniadi
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Stephen Kurniadi (the "Warrant Holder"), is the registered holder of 20,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of December 30, 2015. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: December 30, 2015
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: March 1, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 2nd day of February, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Andy Litansen, a resident of Singapore (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 30,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 1st day of March, 2016.
Amount of Investment: $15,000.00
# of Units: 30,000
INVESTOR: Andy Litansen
/s/: Andy Litansen
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 1st day of March, 2016.
Amount of Investment: $15,000.00
# of Units: 30,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 30,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$15,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: March 1, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of March 1, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Andy Litansen, a resident of Singapore (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated March 1, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Andy Litansen
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Andy Litansen
By: Andy Litansen
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Andy Litansen (the "Warrant Holder"), is the registered holder of 30,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of March 1, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: February 2, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: February 2, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 2nd day of February, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$750,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Djohan Farida, a resident of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 150,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021500021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 2nd day of February, 2016.
Amount of Investment: $75,000.00
# of Units: 150,000
INVESTOR: *
/s/: Djohan Farida
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 2nd day of February, 2016.
Amount of Investment: $75,000.00
# of Units: 150,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 150,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$75,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: February 2, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of February 2, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Djohan Farida, a resident of Indonesia (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated February 2, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 15005
If to the Warrant Holder, then to:
Djohan Farida
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Djohan Farida
By: Djohan Farida
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Djohan Farida, a resident of Indonesia (the "Warrant Holder"), is the registered holder of 150,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of February 2, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: February 2, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: DECEMBER 30, 2015
AS AMENDED
FEBRUARY 2, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 2nd day of February, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, SILVIA, a resident of Indonesia, with an address located at JI. Bogor No. 16 Medan Indonesia (the "Investor"),intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 50,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities. 4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States
relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 2nd day of February, 2016.
Amount of Investment: $25,000.00 # of Units: 50,000
INVESTOR: SILVIA
Investor
/s/:Silvia
Signature of Investor
Address: J1. Bogor No. 16 Medan Indonesia
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 50,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$25,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: February 2nd, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of February 2, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation with an address at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), and SILVIA, a resident of Indonesia and having an address located at J1. Bogor No. 16 Medan Indonesia "Warrant Holder"), is bei ng executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated February 2, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
SILVIA
J1. Bogor No. 16
Medan Indonesia
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicthle
bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
By: Edwin Ng, Chairman
/s/:Edwin Witarsa Ng
WARRANT HOLDER
By: SILVIA
/s/: Silvia
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that SILVIA (the "Warrant Holder"), is the registered holder of 50,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of February 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
WITNESS the signature of the duly authorized signatory of the Company.
Dated: February 2nd, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
REGULATION D UNIT OFFERING
SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT
DATED: FEBRUARY 15, 2016
_____________________________
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG D SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION D PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG D SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION D UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SHARES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering .
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg D Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 2nd day of February, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of 1,000,000 Units, with total proceeds of US$500,000 (the "Minumum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on Janaury 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons who are "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum Offering was completed on January 20, 2016, were required to be be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Richard Rubin, Esq. Upon successful achievement of the Minimum Offering, the Offering Proceeds shall be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions .
2.1 The undersigned , Alfred Herman Goenawan, a resident of the State of Virginia, with an address located at 653 Stonewall Drive, Harrisonburg, VA 22801 (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg D Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 200,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Special Account as set forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December 30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FINRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of March 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation D promulgated by the SEC under the Act ("Reg D") only to persons who are, and the Company will only accept subscriptions from, "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg D Subscription Agreement, the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing . The closing (the "Closing") of the purchase and sale of the Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg D Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties . The undersigned investor hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg D Subscription Agreement, the execution and delivery of this Reg D Subscription Agreement has been duly authorized and this Reg D Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) an "accredited investor" as defined in Rule 501 of Reg D; (ii) is experienced in making investments of the kind described in this Reg D Subscription Agreement and the related documents; and (iii) is able, by reason of his/her/its business and financial experience and professional advisors, if any and who are not affiliated with or compensated in any way by the Company or any of its affiliates, to protect his/her/its own interests in connection with the transactions described in this Reg D Subscription Agreement, and the related documents; and (iv) able to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to be exempt from registration under the Act, based upon the exemption provided under Regulation D promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment in the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended and acknowledges that the Company is current in its reporting obligations Exchange Act Reports under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal, financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company, or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from registration afforded by Regulation D promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance on an exemption from the registration requirements of United States federal securities laws under Regulation D promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company in determining to invest in the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports.
4.20 The undersigned further understands that there is a substantial risk of further dilution on his/her/its investment in the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company . The Company represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg D Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg D Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Directors is required.
5.4 This Reg D Subscription Agreement has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation D. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its obligations under, this Reg D Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg D Subscription Agreement by the Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg D Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg D Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg D Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous .
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers, directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg D Subscription Agreement nor any provisions hereof shall be modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required, or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg D Subscription Agreement may be executed through the use of separate signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg D Subscription Agreement shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg D Subscription Agreement and the documents referenced herein contain the entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg D Subscription Agreement is not transferable or assignable by the undersigned.
6.8 This Reg D Subscription Agreement shall be governed by and construed in accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg D Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
(Signatures on Following Page)
IN WITNESS WHEREOF , the undersigned has executed this Reg D Subscription Agreement on the 15th day of February, 2016.
Amount of Investment: $100,000
# of Units: 200,000
INVESTOR:
Alfred Herman Goenawan
Name of Investor 9; 9;
/s/:________________________
Signature of Investor
Address:
653 Stonewall Drive
Harrisonburg, VA 22801
SSN : 641-62-5159
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized signatory, hereby accepts the Subscription by the Investor for 200,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$100,000, paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By :/s/______________________________
Name: Edwin Ng
Title: Chairman
Dated: February __, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of February __, 2016, by and between KinerjaPay Corp., a Delaware corporation with an address at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), and Alfred Herman Goenawan, a resident of the State of Virginia, and having an address located at 653 Stonewall Drive, Harrisonburg, VA 22801 (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg D Subscription Agreement dated February 15, 2016 (the "Reg D Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, an "accredited investor" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Securities Act of 1933, as amended (the "Act") in Section 2.3 of the attached Reg D Subscription Agreement, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg D Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The Class A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or in the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business in the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder 200,000 Class A Warrants. Each Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 - Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer:
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth in the securities laws of the United States, Regulation D promulgated by the SEC under the Act and the express provisions of the Reg D Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates:
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company''s receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Exercise: Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 - Form of Election to Purchase hereto, specifying the number of Class A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
B. Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
C. Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
D. Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A Class A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares Issuable Upon Exercise of a Class A Warrant and Adjustment of Exercise Price:
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment in accordance with the terms of the Class A Warrants, (ii) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares:
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment:
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder:
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof.
C. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder in reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation D promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder:
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests:
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certificates that evidence fractional shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to :
KinerjaPay Corp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
Attn: Richard Rubin, Esq.
If to the Warrant Holder, then to :
Alfred Herman Goenawan
653 Stonewall Drive
Harrisonburg, VA 22801
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers:
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns:
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio .
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction:
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries:
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings:
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement:
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg D Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses:
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg D Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg D Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties:
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i) execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation D promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's representations set forth in Section 12 of this Class A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results in creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP.
By:___________________________
Edwin Ng, Chairman
WARRANT HOLDER
By: _________________
Name: Alfred Herman Goenawan
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP.
This Warrant Certificate certifies that Alfred Herman Goenawan (the "Warrant Holder"), is the registered holder of 200,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of February __, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the offices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate a like number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
WITNESS the signature of the duly authorized signatory of the Company.
Dated: February __, 2016
KINERJAPAY CORP.
By: _________________________
Edwin Ng, Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise _________ of the Class A Warrants evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of __________, a Person who is not a U.S. Person as that term is defined in Rule 902 of Regulation D, and whose address is _________________ and that such certificate be delivered to _________________, not a U.S. Person, and whose address is _________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of , not a U.S. Person and whose address is and that such Warrant Certificate be delivered to , not a U.S. Person and whose address is .
Dated: ,
Name of Holder of Warrant Certificate:
_________________________
By:
(Please Print Name and Title, if applicable)
Address:
Signature:
Note: The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: March 21, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 21st day of March 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Jeffrey Nah Kim Boon, a resident of Singapore (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 20,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 15th day of Feburary, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
INVESTOR: Jeffrey Nah Kim Boon
/s/: Jeffrey Nah Kim Boon
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 21st day of March 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 20,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$10,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: March 21, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of March 21, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Jeffrey Nah Kim Boon, a Resident of Singapore (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated March 21, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Jeffrey Nah Kim Boon
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Jeffrey Nah Kim Boon
By: Jeffrey Nah Kim Boon
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Jeffrey Nah Kim Boon(the "Warrant Holder"), is the registered holder of 20,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of March 21, 2016, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: March 21, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: March 1, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 2nd day of February, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Daniel Yohansha, a resident of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 20,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 1st day of March, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
INVESTOR: Daniel Yohansha
/s/: Daniel Yohansha
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 1st day of March, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 20,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$10,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: March 1, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of March 1, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Daniel Yohansha, a resident of Indonesia (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated March 1, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Daniel Yohansha
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Daniel Yohansha
By: Daniel Yohansha
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Daniel Yohansha (the "Warrant Holder"), is the registered holder of 20,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of March 1, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: February 2, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: May 19, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 19th day of May, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Syahid Liga Lie, a resident of Singapore (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 200,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 19th day of May, 2016.
Amount of Investment: $100,000.00
# of Units: 200,000
INVESTOR: Syahid Liga Lie
/s/: Syahid Liga Lie
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 19th day of May, 2016.
Amount of Investment: $100,000.00
# of Units: 200,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 200,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$100,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: May 5, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of May 5, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Syahid Liga Lie, a Resident of Singapore (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated May 5, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Syahid Liga Lie
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Syahid Liga Lie
By: Syahid Liga Lie
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Syahid Liga Lie (the "Warrant Holder"), is the registered holder of 200,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of May 5, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: May 5, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: May 5, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 5th day of May, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Peter Paschal Korompis, a resident of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 100,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 5th day of May, 2016.
Amount of Investment: $50,000.00
# of Units: 100,000
INVESTOR: Peter Paschal Korompis
/s/: Peter Paschal Korompis
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 5th day of May, 2016.
Amount of Investment: $50,000.00
# of Units: 100,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 100,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$50,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: May 5, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of May 5, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Peter Paschal Korompis, a resident of Indonesia (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated May 5, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Peter Paschal Korompis
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Peter Paschal Korompis
By: Peter Paschal Korompis
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Peter Paschal Korompis (the "Warrant Holder"), is the registered holder of 100,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of May 5, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: May 5, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: January 11, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 11th day of January, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$700,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, PT. Stareast Management, organized under the laws of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 140,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021400021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 11th day of January, 2016.
Amount of Investment: $70,000.00
# of Units: 140,000
INVESTOR: PT. Stareast Management
/s/: Wendy, Director
Signature and Title of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 11th day of January, 2016.
Amount of Investment: $70,000.00
# of Units: 140,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 140,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$70,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: January 11, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of January 11, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and PT. Stareast Management, organized under the laws of Indonesia (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated January 11, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 14005
If to the Warrant Holder, then to:
PT. Stareast Management
Attn: Wendy, Director
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
PT. Stareasy Management
/s/: Wendy
By: Wendy, Director
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that PT. Stareast Management, organized under the laws of Indonesia (the "Warrant Holder"), is the registered holder of 140,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of January 11, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: January 11, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: May 19, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 19th day of May, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Nicholas Agustinus Budiman, a resident of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 20,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 19th day of May, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
INVESTOR: Nicholas Agustinus Budiman
/s/: Nicholas Agustinus Budiman
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 19th day of May, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 20,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$10,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: May 19, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of May 19, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Nicholas Agustinus Budiman, a Resident of Singapore (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated May 19, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Nicholas Agustinus Budiman
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Nicholas Agustinus Budiman
By: Nicholas Agustinus Budiman
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Nicholas Agustinus Budiman(the "Warrant Holder"), is the registered holder of 20,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of May 19, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: May 19, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
KINERJAPAY CORP.
DATED: May 19, 2016
THIS SUBSCRIPTION AND INVESTOR'S REPRESENTATION AGREEMENT (THE "REG S SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING BY KINERJAPAY CORP., A DELAWARE CORPORATION, OF UNITS AS DEFINED BELOW IN A TRANSACTION PURSUANT TO REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE UNITS THAT ARE SUBJECT TO THE OFFERING (THE "UNIT OFFERING") PURSUANT TO THIS REG S SUBSCRIPTION AGREEMENT (THE "UNITS") CONSIST OF: (i) ONE (1) SHARE OF COMMON STOCK, PAR VALUE $0.0001 (THE "SHARES"); AND (ii) ONE (1) CLASS A COMMON STOCK PURCHASE WARRANT (THE "CLASS A WARRANTS") EXERCISABLE TO PURCHASE ONE (1) ADDITIONAL SHARE. THE SHARES AND CLASS A WARRANTS ARE SOMETIMES HEREINAFTER REFERRED TO COLLECTIVELY, AS THE "SECURITIES."
THE SHARES, CLASS A WARRANTS AND THE SHARES UNDERLYING THE CLASS A WARRANTS SUBJECT TO THE UNIT OFFERING HAVE NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREINBELOW) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THE SECURITIES SUBJECT TO THIS REG S SUBSCRIPTION AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING, OR THE ACCURACY OR ADEQUACY OF THE DISCLOSURE IN THIS SUBSCRIPTION AGREEMENT. ANY SUCH REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Section 1: The Unit Offering.
1.1 KinerjayPay Corp., f/k/a Solarflex Corp., a Delaware corporation with offices located at J1. Multatuli, No. 8A, Medan Indonesia 20151 (the "Company"), is offering units as defined below (the "Unit Offering") pursuant to this Reg S Unit Offering Subscription and Investor's Representation Agreement (the "Reg S Subscription Agreement") dated as of this 19th day of May, 2016.
1.2 The units subject to this Unit Offering (the "Units") consists of one (1) share of the
Company's common stock, par value $0.0001 (the "Shares") and one (1) class A warrant (the "Class A Warrant"), exercisable to purchase one (1) additional Shares (the "Warrant Shares") at a price of $1.00 (the "Exercise Price"), during a period commencing on the effective date of the reverse split of the Company's Shares (the "Effective Date"), on a one-for thirty (1:30) basis as described below (the "Reverse Split") for a period of twenty-four (24) months. The Class A Warrant Agreement, Warrant Certificate and Notice of Exercise are attached hereto as Exhibits A.1, A.2 and A.3, respectively.
1.3 The Unit Offering, which commenced in December 2015, is for a minimum of
1,000,000 Units, with total proceeds of US$500,000 (the "Minimum Offering") and a maximum of 5,000,000 Units, with total proceeds of US$2,500,000 (the "Maximum Offering"), from the date first set forth above for a period of one hundred and twenty (120) days, subject to one extension for an additional sixty (60) days (the "Offering Period). The Company successfully concluded the Minimum Offering on January 20, 2016.
1.4 The Unit Offering is being made by the Company only to persons: (i) who are not
"U.S. Persons," as defined in Rule 902 of Regulation S ("Reg S") promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "Act"); and (ii) to "accredited investors" as that term is defined in Rule 501 promulgated by the SEC under Rule 501 of Regulation D.
1.5 The proceeds of the Unit Offering (the "Offering Proceeds"), until the Minimum
Offering was completed on January 20, 2016, were required to be payable to and held in a special account of the Company (the "Special Account"), maintained for the Company's benefit at JP Morgan Chase Bank, New York, NY by the Company's counsel, Office of Richard Rubin. Upon successful achievement of the Mini mum Offering, the Offering Proceeds shall I be released to the Company from the Special Account at the direction of the Company.
Section 2: Subscriptions.
2.1 The undersigned, Iskandar Tanuseputra, a resident of Indonesia (the "Investor"), intending to be legally bound pursuant to the terms and conditions of the Reg S Subscription Agreement, hereby irrevocably subscribes for and agrees to purchase 20,000 Units offered by the Company, at a price of US$0.50 per Unit (the "Unit Offering Purchase Price"), payable by the Investor by wire transfer to the Escrow Account asset forth in Section 2.4 below.
2.2 The undersigned understands that while the Unit Offering commenced on December
30, 2015, the certificates evidencing the Shares and Class A Warrants will not be issued until the Effective Date of the Reverse Split which is defined as the date the Reverse Split is approved by FlNRA. On February 2, 2016, the Company's application for approval of the Reverse Split was filed and the Company reasonably expects that it will be completed by or before the end of February 2016.
2.3 The undersigned further understands that: (i) the Company's Shares, Class A Warrants
and Warrant Shares (sometimes referred to collectively, as the "Securities") that are the subject of this Unit Offering are being offered in a transaction pursuant to the exemption provided by Regulation S promulgated by the SEC under the Act ("Reg 5") to non "U.S. Persons" as defined in Rule 902 of Reg S; and (ii) the Unit Offering is only being made to and the Company will only accept subscriptions from "accredited investors" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
2.4 The undersigned understands and acknowledges that the Offering Price remitted to
the Company in payment for the Units must be received by the Company by wire transfer to the Special Account, as follows:
Bank: JP Morgan Chase Bank, New York, NY
SWIFT: CHASUS33
ABA: 021000021
for credit to: KinerjaPay Corp.
Account#: 786621503
2.5 Simultaneous with the execution and delivery of this Reg S Subscription Agreement,
the undersigned shall deliver to the Company the aforementioned Unit Offering Purchase Price multiplied by the number of Units subscribed for (the "Offering Proceeds") by wire transfer of immediately available funds as set forth above.
2.6 The undersigned understands and agrees that the Company reserves the right, in its
sole discretion, to accept or reject the subscription for the Units for any reason whatsoever, at any time prior to acceptance by the Company.
2.7 The undersigned understands and agrees that its subscription for the Units is
irrevocable on the part of the undersigned Investor, subject to the right and obligation of the Company to cause the return of the Offering Proceeds in full, without interest or deduction, in the event that: (i) the Minimum Offering is not completed during the Offering Period; and/or (ii) the Company is not granted the License, as more fully-described in Section 5.2 below.
Section 3: The Closing. The closing (the "Closing") of the purchase and sale of the
Units shall occur simultaneously with the acceptance by the Company of the undersigned's subscription, as evidenced by the Company's counter-signing this Reg S Subscription Agreement. Notwithstanding the foregoing, the undersigned understands, acknowledges and agrees that if the Company accepts the undersigned's subscription, in the event that the Minimum Offering is not completed during the Offering Period, all of the Offering Proceeds will be returned in full, without interest or deduction as provided in Section 2.7 above. Further, the undersigned Investor understands that certificates evidencing the Shares and the Class A Warrants will not be delivered until the Effective Date of the Reverse Split.
Section 4: Investor's Representations and Warranties. The undersigned
hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
4.1 The undersigned is acquiring the Units, including the Shares and Class Warrants for
his/her/its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities or any portion thereof. Further, the undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities for which the undersigned is subscribing or any part of the Securities.
4.2 The undersigned has full power and authority to enter into this Reg S Subscription
Agreement, the execution and delivery of this Reg S Subscription Agreement has been duly authorized and this Reg S Subscription Agreement constitutes a valid and legally binding obligation of the undersigned.
4.3 The undersigned is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investments generally.
4.4 The undersigned understands that, except as otherwise expressly provided herein, the
Investor does not have "demand registration rights" nor is the Company under any obligation to register the Shares, Class A Warrants or Warrant Shares under the Act upon the written or other demand of the Investor.
4.5 The undersigned is: (i) not a "U.S. Person" as that term is defined in Rule 902 of
Reg S; (ii) an "accredited investor" as defined in Rule 501 of Reg D; (iii) is experienced in making investments of the kind described in this Reg S Subscription Agreement and the related documents and is able, by reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates), to protect his/her/its own interests in connection with the transactions described in this Reg S Subscription Agreement, and the related documents; and (iv) is to afford the entire loss of his/her/its investment in the Securities.
4.6 The undersigned acknowledges his understanding that the Unit Offering is intended to
be exempt from registration under the Act, based upon the exemption provided under Regulation S promulgated by the SEC under the Act.
4.7 In furtherance thereof, in addition to the other representations and warranties of the
undersigned made herein, the undersigned further represents and warrants to and agrees with the Company as follows: (i) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the undersigned is acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise; (ii) The undersigned has the financial ability to bear the economic risk of his/her/its investment i n the Securities, has adequate means for providing for his/her/its current needs and contingencies and has no need for liquidity with respect to its investment in the Units offered by the Company; (iii) The undersigned, either individually or by its officers and principals, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities; (iv) The undersigned, if an entity and not a "natural person," represents it has not been organized for the purpose of acquiring the Securities; (v) The undersigned has been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the Unit Offering, the Company and all other information the undersigned deems relevant, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (vi) The undersigned has carefully reviewed all of the Company's filings (the "Exchange Act Reports") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and acknowledges that the Company is current in its reporting obligations (the "Exchange Act Reports") under the Exchange Act.
4.8 The undersigned is not relying on the Company, or its affiliates or agents, with respect
to economic considerations involved in his/her/its investment in the Securities and the undersigned has relied solely on his/her/its own financial expertise and/or that of his/her/its legal , financial and investment advisors. if any.
4.9 No representations or warranties have been made to the undersigned by the Company,
or any officer, director, employee, agent, affiliate or representative of the Company, other than the representations made by the Company in writing as contained herein and, in subscribing for purchase of the Units, the undersigned is not relying upon any representations other than those contained herein.
4.10 Any resale of the Securities shall only be made in compliance with exemptions from
registration afforded by Regulation S promulgated by the SEC under the Act. Further, any such sale of the Securities will be made in full compliance with the federal securities laws of the United States.
4.11 The undersigned understands that the Securities are being offered and sold in reliance
on an exemption from the registration requirements of United States federal securities laws under Regulation S promulgated by the SEC under the Act and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the undersigned set forth herein in order to determine the availability of such exemptions and the suitability of the undersigned to acquire the Securities.
4.12 The undersigned is an "accredited investor" as that term is defined in Rule 501 of
Regulation D under the Act.
4.13 The undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his/her/its entire investment.
4.14 The undersigned's overall commitment to investments which are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
4.15 The undersigned has reviewed and/or has had the opportunity to review all Exchange
Act Reports and other documents filed by the Company with the SEC.
4.16 The undersigned represents and warrants to the Company that all information that the
undersigned has provided to the Company, including, without limitation, the representations and warranties provided herein or previously provided to the Company are true, correct and complete in all material respects as of the date hereof and will be as of the Closing.
4.17 Other than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company i n determining to invest i n the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned's own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his/her/its investment in the Securities is suitable and appropriate for the undersigned.
4.18 The undersigned is aware that no federal or state agency has: (i) made any finding or
determination as to the fairness of this investment; (ii) made any recommendation or endorsement of the Securities or the Company; or (iii) guaranteed or insured any investment in the Securities or any investment made in or by the Company.
4.19 The undersigned understands that the Unit Offering Purchase Price does not
necessarily bear any relation to the assets, book value or net worth of the Company and was determined arbitrarily by the Company and its management after taking into consideration, among other things, the recent trading range of the Company's Shares on the OTCQB, the Company's new business direction and the Company's new license agreement, as reported in the Company's recent Exchange Act Reports
4.20 The undersigned further understands that there is a substantial risk of further dilution
on his/her/its investment i n the Company as a result of the issuance and sale of additional Securities by the Company.
Section 5: Representations and Warranties of the Company. The Company
represents and warrants to the undersigned Investor as follows:
5.1 The Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
5.2 The Company has the requisite corporate power and authority to enter into and perform its obligations under this Reg S Subscription Agreement and to issue the Securities, subject to the conditions precedent that the Company has executed and delivered the Exclusive License Agreement by and between the Company and PT Kinerja Indonesia, pursuant to which the Company has been granted the exclusive, world-wide license (the "License") to commercially exploit IP technology of PT Kinerja's wholly-owned entity, KinerjaPay.
5.3 The execution and delivery of this Reg S Subscription Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Di rectors is required.
5.4 This Reg S Subscription Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application.
5.5 To the best of Company's knowledge, the Company has not provided to the
undersigned any information that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company, but which has not been so disclosed.
5.6 As of their respective dates, the Company's Exchange Act Reports have complied in
all material respects with the disclosure requirements of the Exchange Act and other federal and state securities laws, the rules and regulations promulgated by the SEC under the Act and the Exchange Act, and none of Exchange Act Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the Exchange Act Reports comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
5.7 The Unit Offering, issuance and sale by the Company of the Units and the underlying
Securities, in accordance with the terms and on the bases of the representations and warranties of the undersigned set forth herein, shall be properly issued by the Company to the undersigned pursuant to Section 4(2) and Regulation S. When issued and paid for as herein provided, the Units and the Shares issuable upon the subscription by the undersigned shall be duly and validly issued, fully-paid and nonassessable.
5.8 Neither the sale of the Units pursuant to, nor the Company's performance of its
obligations under, this Reg S Subscription Agreement shall: (i) result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Units or any of the assets of the Company; or (ii) entitle the other holders of the Company's securities to preemptive or other rights to subscribe to or acquire the capital stock or other securities of the Company.
5.9 Neither the Company nor any of its affiliates nor any person acting on its or their
behalf: (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Units; or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities offered hereby under the Act.
5.10 The execution, delivery and performance of this Reg S Subscription Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Shares and the Class A Warrants and any underlying Warrant Shares, do not and will not: (i) result in a violation of the Certificate of Incorporation or By-Laws of the Company; (ii) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument or provision of any agreement to which the Company is a party or is otherwise bound; or (iii) result in a violation of any federal, state, local or foreign law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or assets of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a material adverse effect on the business, operations, properties, prospects or condition (financial or otherwise) of the Company) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing.
5.11 The Company is not required under the federal or state securities laws, rule or
regulations to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Reg S Subscription Agreement or issue and sell the Securities in accordance with the terms hereof (other than the obligation to file a Form 8-K with disclosure under Item 3.02 with respect to the sale of unregistered securities); provided however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the undersigned Investor herein.
5.12 The Company has no liabilities or obligations that are material, individually or in the
aggregate, and that are not disclosed in its Exchange Act Reports, other than those incurred in the ordinary course of the Company's business and which, individually or in the aggregate, do not or would not have a material adverse effect on the Company.
5.13 No event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition, that, under applicable law, rule or regulation, requires public disclosure or announcement prior to the date hereof by the Company but which has not been so publicly announced or disclosed in the Exchange Act Reports.
5.14 Neither the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, other than pursuant to this Reg S Subscription Agreement.
5.15 The Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Units, if any, in connection with the transactions contemplated by this Reg S Subscription Agreement, have not made, at any time, any written or oral communication in connection with the offer or sale of the same which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
Section 6: Miscellaneous.
6.1 The undersigned agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, representatives and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
6.2 Neither this Reg S Subscription Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.3 Any notice, demand or other communication which any party hereto may be required,
or may elect, to give to anyone interested hereunder shall be sufficiently given if set to each parties address first set forth above and if: (i) deposited, postage prepaid, in a government mail letter box, registered or certified mail, return receipt requested, or the equivalent, addressed to such address as first set forth above; (ii) delivered personally at such address; (iii) sent by overnight courier such as Federal Express, DHL, UPS or the equivalent; or (iv) via email, provided that confirmation of receipt of such email communication can be verified by the sender.
6.4 This Reg S Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts and by facsimile, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Signatures may be facsimiles.
6.5 Except as otherwise provided herein, this Reg S Subscription Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
6.6 This Reg S Subscription Agreement and the documents referenced herein contain the
entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
6.7 This Reg S Subscription Agreement is not transferable or assignable by the
undersigned.
6.8 This Reg S Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, where the Company maintains its: (i) banking relationships; (ii) transfer agent relationships; and (iii) legal representation, among other United States relationships, without giving effect to conflicts of law principles and any dispute under this Reg S Subscription Agreement or the transactions contemplated hereby shall be before a court of competent jurisdiction in New York County, State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 19th day of May, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
INVESTOR: Iskandar Tanuseputra
/s/: Iskandar Tanuseputra
Signature of Investor
IN WITNESS WHEREOF, the undersigned has executed this Reg S Subscription Agreement on the 19th day of May, 2016.
Amount of Investment: $10,000.00
# of Units: 20,000
ACCEPTANCE OF SUBSCRIPTION
(to be completed and countersigned by the Company)
The Company, by its duly authorized officer, hereby accepts the Subscription by the Investor for 20,000 Units at a Unit Offering Purchase Price of $0.50, for total Offering Proceeds of US$10,000.00 paid by wire transfer pursuant to instructions in Section 2.4 above.
KINERJAPAY CORP.
By: Edwin Witarsa Ng
Name: Edwin Ng Title: Chairman
Dated: May 19, 2016
Exhibit A.1
KINERJAPAY CORP.
CLASS A WARRANT AGREEMENT
This Warrant Agreement ("Class A Warrant Agreement") dated as of May 19, 2016, by and between KinerjaPay Corp., f/k/a Solarflex Corp. Delaware corporation (the "Company"), and Iskandar Tanuseputra, a resident of Indonesia (the "Warrant Holder"), is being executed and delivered for good and valuable consideration, the receipt of which is hereby acknowledged by the Company, in connection with the Warrant Holder's execution and delivery of the Company's Reg S Subscription Agreement dated May 19, 2016 (the "Reg S Subscription Agreement").
Pursuant to this Class A Warrant Agreement, the Company hereby grants and issues to the Warrant Holder, a "Person" who is not a "U.S. Person" as those terms are defined in Section 1 below, a Class A Warrant (the "Class A Warrant") exercisable to purchase one (1) share of the Company's common stock (the "Warrant Shares") for each Unit subscribed for in the Reg S Subscription Agreement, at an exercise price of US$1.00 per Warrant Share. The CI ass A Warrant is exercisable during the period of twenty-four (24) months from the date of the Class A Warrant Agreement. The Company and the Warrant Holder are sometimes referred to collectively, as the "Parties" and individually, as a "Party."
In consideration of the mutual terms, conditions, representations, warranties and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Section 1. Definitions :
Unless the context otherwise requires, the terms defined in this Section 1, whenever used in this Class A Warrant Agreement shall have the respective meanings hereinafter specified and words in the singular or i n the plural shall each include the singular and the plural:
"Act" shall mean the Securities Act of 1933, as amended, and any reference to a particular section of such Act shall include a reference to the comparable section, if any, of such successor federal statute;
"Business Day" shall mean any day on which banking institutions are generally open for business i n the United States;
"Class A Warrant" has the meaning set forth in Section 2 hereof;
"Exercise Price" shall be the price of US$1.00 per Warrant Share to which Warrant Holder is entitled to purchase one (1) Warrant Share for each Unit subscribed for upon exercise of the Class A Warrants in accordance with Section 8 below and subject to adjustment as provided in Section 9 below;
"Person" shall mean any corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual, government or political subdivision thereof or governmental body;
"SEC" means the United States Securities and Exchange Commission.
"U.S. Person" has the meaning as defined in Rule 902 of Regulation S promulgated by the SEC under the Act;
"Warrant Certificates" has the meaning set forth in Section 3 hereof;
"Warrant Commencement Date" shall mean the date of this Class A Warrant Agreement;
"Warrant Expiration Date" shall mean a date twenty-four (24) months from the Warrant Commencement Date; and
"Warrant Shares" means the shares of common stock of the Company, par value $0.0001 per share, which are issuable upon exercise of the Class A Warrant;
Section 2. Issuance of Class A Warrants:
The Company hereby issues and grants to Warrant Holder Class A Warrants. Each
Class A Warrant shall grant to the holder thereof the right to purchase one (1) Warrant Share, exercisable commencing on the Warrant Commencement Date and terminating on the Warrant Expiration Date. The Warrant Holder shall have the right, subject to the satisfaction of the exercise conditions set forth in Section 8 of this Class A Warrant Agreement, to purchase one (1) Warrant Share per each Class A Warrant at the Exercise Price. The number of Warrant Shares issuable on exercise of each Class A Warrant and the Exercise Price are all subject to adjustment pursuant to Section 9 of this Class A Warrant Agreement.
Section 3. Form of Warrant Certificates:
Promptly after the execution and delivery of this Class A Warrant Agreement, the Company may, in its sole and absolute discretion, cause to be executed and delivered to Warrant Holder one or more certificates evidencing the Class A Warrants (the "Warrant Certificates"). Each Warrant Certificate delivered hereunder shall be substantially in the form set forth in Exhibit 1 Warrant Form, attached hereto and may have such identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Class A Warrant Agreement or as may be required by applicable law, rule or regulation. Each Warrant Certificate shall be dated the date of execution of this Class A Warrant Agreement.
Section 4. Execution of Warrant Certificates:
Each Warrant Certificate delivered hereunder shall be signed on behalf of the Company by an executive officer of the Company and such signature may be in the form of a facsimile thereof and may be imprinted or otherwise reproduced on the Warrant Certificates. If any executive officer of the Company who signed any Warrant Certificate ceases to be an executive officer before the signed Warrant Certificate shall have been delivered by the Company, such Warrant Certificate nevertheless may be delivered as though such person had not ceased to be an executive officer of the Company.
Section 5. Registration of Ownership and Transfer :
Warrant Certificates shall be issued in registered form only. The Company will keep or cause to be kept books for registration of ownership and transfer of each Warrant Certificate issued pursuant to this Class A Warrant Agreement. Each Warrant Certificate issued pursuant to this Class A Warrant Agreement shall be numbered by the Company and shall be registered by the Company in the name of the Warrant Holder. The Company may deem and treat the registered Warrant Holder of any Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. No Transfers:
No Class A Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise disposed of without the prior written consent of the Company, which consent will not be unreasonably withheld. Notwithstanding the forgoing, any sale, pledge, hypothecation, assignment, conveyance, transfer or disposition will be subject to the limitations set forth i n the securiti es I aws of the United States, Regulation S promulgated by the SEC under the Act and the express provi si ons of the Reg S Subscription Agreement.
Section 7. Mutilated or Missing Warrant Certificates :
If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall issue, upon surrender and cancellation of any mutilated Warrant Certificate, or in lieu of and substitution for any lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor and representing an equal number of Class A Warrants. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction and, if requested, an indemnity or bond reasonably satisfactory to the Company.
Section 8. Exercise of Class A Warrants:
Subject to the terms and conditions set forth in this Section 8, Class A Warrants may be exercised, in whole or in part (but not as to any fractional part), at any time or from time to time on and after the Warrant Commencement Date and on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date. In order to exercise any Class A Warrant, the Warrant Holder shall deliver to the Company at its office referred to in Section 15 of this Warrant Agreement the following: (i) a written notice of such Warrant Holder's election to exercise the Class A Warrants in the form of the Election to Purchase attached as Exhibit A.2 Form of Election to Purchase hereto, specifying the number of CI ass A Warrants being exercised; (ii) the Warrant Certificate(s), if any, evidencing the Class A Warrants being exercised; and (iii) payment of the aggregate Exercise Price by wire transfer payable to an account designated by the Company in writing.
All rights of the Warrant Holder with respect to any Class A Warrants that have not been exercised, on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date, shall immediately cease and such Class A Warrants shall be automatically cancelled and be deemed null and void.
Payment of Exercise Price: Payment of the Exercise Price with respect to Class A Warrants being exercised hereunder shall be made by the payment to the Company by wire transfer, of an amount equal to the Exercise Price multiplied by the number of Class A Warrants then being exercised.
Payment of Taxes: The Company shall be responsible for paying any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on exercise of a Class A Warrant. Notwithstanding anything contained herein to the contrary, the Warrant Holder shall be responsible for all taxes that may be due and payable by the Warrant Holder as a result of the issuance of this Class A Warrant to the Warrant Holder or as a result of the issuance of the Warrant Shares upon due exercise hereof.
Delivery of Warrant Shares: Upon receipt by the Company of the Form of Election to Purchase, the Warrant Certificate(s) and the payment referenced in Section 8.A above, the Company shall, as promptly as practicable, cause its transfer agent to issue a certificate(s) evidencing the number of Warrant Shares to be exercised in the name of Warrant Holder or Warrant Holder's designee, a stock certificate or stock certificates representing the number of Warrant Shares issuable upon exercise of the Class A Warrant(s). The certificates issued to Warrant Holder or its designee shall bear any restrictive legend required under applicable law, rule or regulation. The stock certificate(s) so delivered shall be registered in the name of Warrant Holder or such other name as shall be designated in said notice. A
CIass A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such Form of Election to Purchase, together with payment of the aggregate Exercise Price and the Warrant Certificate(s) evidencing the Class A Warrants to be exercised, is received by the Company. If the Class A Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates evidencing the Warrant Shares, deliver to the Warrant Holder a new Warrant Certificate evidencing the Class A Warrants that were not exercised or surrendered, which shall in all respects (other than as to the number of Class A Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Class A Warrants shall be canceled by the Company.
Section 9. Adjustment of Number of Warrant Shares I ssuable Upon Exercise of a Class
A Warrant and Adjustment of Exercise Price :
A. Adjustment for Stock Splits, Stock Dividends, Recapitalizations. The number
of Warrant Shares issuable upon exercise of each Class A Warrant and the Exercise Price shall each be proportionately adjusted to reflect any stock dividend, stock split, reverse stock split, recapitalization or the like affecting the number of outstanding shares of Common Stock that occurs after the date hereof.
Adjustments for Reorganization, Consolidation, Merger. If after the date hereof, the Company (or any other entity, the stock or other securities of which are at the time receivable on the exercise of the Class A Warrants), consolidates with or merges into another entity or conveys all or substantially all of its assets to another entity, then, in each such case, Warrant Holder, upon any permitted exercise of a Class A Warrant (as provided in Section 8), at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise of the Class A Warrant prior to such consummation, the stock or other securities or property to which such Warrant Holder would have been entitled upon the consummation of such reorganization, consolidation, merger or conveyance if such Warrant Holder had exercised the Class A Warrant immediately prior thereto, all subject to further adjustment as provided in this Section 8. The successor or purchasing entity in any such reorganization, consolidation, merger or conveyance (if other than the Company) shall duly execute and deliver to Warrant Holder a written acknowledgment of such entity's obligations under the Class A Warrants and this Class A Warrant Agreement.
B. Notice of Certain Events. Upon the occurrence of any event resulting in an adjustment in the number of Warrant Shares (or other stock or securities or property) receivable upon the exercise of the Class A Warrants or the Exercise Price, the Company shall promptly thereafter (i) compute such adjustment i n accordance with the terms of the Class A Warrants, (i i ) prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, and (iii) mail copies of such certificate to Warrant Holder.
Section 10. Reservation of Shares :
The Company shall, at all times, reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, or its authorized and issued Common Stock held in its treasury, the aggregate number of the Warrant Shares deliverable upon the exercise of all outstanding Class A Warrants held by all of the respective Warrant Holders, for the purpose of enabling the Company to satisfy its obligation to issue the Warrant Shares upon the due and punctual exercise of the Class A Warrants, through 5:00 p.m., Eastern time, on the Warrant Expiration Date.
Section 11. No Impairment :
The Company shall not, by amendment of its certificate of incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issuance or sale of securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the observance or performance of any of the terms of the Class A Warrants or this Class A Warrant Agreement. The Company shall, at all times and in good faith, assist in the carrying out of all terms and, in the taking of all such actions as may be necessary or appropriate, in order to protect the rights of Warrant Holder under the Class A Warrants and this Class A Warrant Agreement against wrongful impairment. Without limiting the generality of the foregoing, the Company: (i) shall not set or increase the par value of any Warrant Shares above the Exercise Price payable upon exercise; and (ii) shall take all actions that are necessary or appropriate in order that the Company may validly and legally issue fully-paid and nonassessable Warrant Shares upon the exercise of the Class A Warrants.
Section 12. Representations and Warranties of the Warrant Holder :
The Warrant Holder represents and warrants to the Company that, on the date hereof and on any date the Warrant Holder exercises the Class A Warrant, either in whole or in part, pursuant to the terms of this Class A Warrant Agreement:
A. The Warrant Holder understands that, at the date of this Class A Warrant
Agreement, the Class A Warrants and the Warrant Shares have not been registered under the Act and acknowledges that the Class A Warrants and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration becomes available.
B. The Warrant Holder is acquiring the Class A Warrants for the Warrant Holder's own account for investment and not with a view to, or for sale in connection with, any distribution thereof. The Warrant Holder understands that the Class A Warrants and the Warrant Shares are being offered and sold to the Warrant Holder i n reliance on an exemption from the registration requirements of United States federal and state securities laws under Section 4(2) under the Act and Regulation S promulgated by the SEC under the Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Warrant Holder set forth herein in order for the Company to reasonably determine the applicability and availability of such exemptions and the suitability of the Warrant Holder to acquire the Class A Warrants and Warrant Shares. The Warrant Holder consents to the Company making a notation on its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on transfer of the Class A Warrants and Warrant Shares set forth in this Section 12.
Section 13. No Rights or Liabilities as Stockholder :
No holder of any Warrant Certificate shall be entitled to vote, receive dividends or be deemed the holder of Common Stock which may at any time be issuable on the exercise of the Class A Warrants represented thereby for any purpose whatever, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon the holder of any Warrant Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance or otherwise), or to receive notice of meetings or other actions affecting stockholders or to receive dividend or subscription rights, or otherwise, until such Warrant Certificate shall have been exercised in accordance with the provisions hereof and the receipt and collection of the Exercise Price and any other amounts payable upon such exercise by the Company. No provision hereof, in the absence of affirmative action by Warrant Holder to exercise to exercise the Class A Warrants purchase Warrant Shares shall give rise to any liability of such holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
Section 14. Fractional Interests :
The Company shall not be required to issue fractional shares of Common Stock upon exercise of the Class A Warrants or to distribute certif icates that evidence tract onal shares of Common Stock. If any fraction of a Warrant Share would, except for the provisions of this Section 14, be issuable on the exercise of a Class A Warrant, the number of Warrant Shares to be issued by the Company shall be rounded up to the nearest whole number.
Section 15. Notices:
All notices, consents, requests, waivers or other communications required or permitted under this Class A Warrant Agreement (each a "Notice") shall be in writing and shall be sufficiently given (a) if hand delivered, (b) if sent by nationally recognized overnight courier, or (c) if sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company, then to:
KinerjaPayCorp.
J1. Multatuli, No. 8A
Medan Indonesia 20151
Attn: Edwin Ng, Chairman
With a copy to:
Office of Richard Rubin
40 Wall Street -28th Floor
New York, NY USA 10005
If to the Warrant Holder, then to:
Iskandar Tanuseputra
_______________
_______________
or such other address(es) as shall be furnished by any of the Parties hereto in a Notice. Any Notice shall be deemed given upon receipt.
Section 16. Supplements, Amendments and Waivers :
This Class A Warrant Agreement may be supplemented or amended only by a subsequent writing signed by each of the Parties hereto (or their successors or permitted assigns), and any provision hereof may be waived only by a written instrument signed by the Party charged therewith.
Section 17. Successors and Assigns :
Except as otherwise provided herein, the provisions of this Class A Warrant Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the Parties hereto. Class A Warrants issued under this Class A Warrant Agreement may be assigned by the Warrant Holder only to the extent such assignment satisfies the restrictions on transfer set forth in this Class A Warrant Agreement; any attempted assignment of Class A Warrants in violation of the terms hereof shall be void ab initio.
Section 18. Termination:
This Class A Warrant Agreement (other than Sections 8C, 12, and Sections 15 through 26, inclusive, and all related definitions, all of which shall survive such termination) shall terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date on which all Class A Warrants have been exercised by the Warrant Holder.
Section 19. Governing Law; Jurisdiction :
A. Governing Law. This Class A Warrant Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable herein.
B. Submission to Jurisdiction. Each Party to this Class A Warrant Agreement hereby irrevocably and unconditionally submits, for itself and its property, to a court or proper jurisdiction in and for the State of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement or the Warrant Certificates and Class A Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the Parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
C. Venue. Each Party hereto irrevocably and unconditionally waives, to the fullest extent that he/she/it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Class A Warrant Agreement, the Warrant Certificates, the Class A Warrants and/or the Warrant Shares to be issued pursuant hereto, in any court referred to in this Subsection B above. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court and waives any other right to which it may be entitled on account of its place of residence or domicile.
Section 20. Third Party Beneficiaries :
Each Party intends that this Class A Warrant Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the Parties hereto and their successors and permitted assigns.
Section 21. Headings :
The headings in this Class A Warrant Agreement are for convenience only and shall not affect the construction or interpretation of this Class A Warrant Agreement.
Section 22. Entire Agreement :
This Class A Warrant Agreement, together with the Warrant Certificates and Exhibits, and the Reg S Subscription Agreement, dated of even date herewith, by and between the Company and the Warrant Holder, constitute the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and shall supersede any prior agreements and understandings between the Parties hereto with respect to such subject matter.
Section 23. Expenses :
Each of the Parties hereto shall pay its own expenses and costs incurred or to be incurred in negotiating, closing and carrying out this Class A Warrant Agreement and in consummating the transactions contemplated herein, except as otherwise expressly provided for herein.
Section 24. Neutral Construction:
The Parties to this Class A Warrant Agreement agree that this Class A Warrant Agreement and the related Reg S Subscription Agreement were negotiated fairly between them at arm's length and that the final terms of this Class A Warrant Agreement and the Reg S Subscription Agreement are the product of the Parties' negotiations. Each Party represents and warrants that he/she/it has sought and received legal counsel of his/her/its own choosing with regard to the contents of this Class A Warrant Agreement and the rights and obligations affected hereby. The Parties agree that this Class A Warrant Agreement shall be deemed to have been jointly and equally drafting by them, and that the provisions of this Class A Warrant Agreement therefore should not be construed against a Party or Parties on the grounds that such Party or Parties drafted or was more responsible for the drafting of any such provision(s).
Section 25. Representations and Warranties :
The Company hereby represents and warrants to the Warrant Holder that:
A. The Company has all requisite corporate power and authority to: (i)
execute and deliver this Class A Warrant Agreement; and (ii) issue the certificates evidencing the Warrant Shares upon the exercise of the A Warrants and carry out provisions of this Class A Warrant Agreement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Class A Warrant Agreement, the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance), sale and issuance of the Common Stock to be sold hereunder has been taken or will be taken prior to the date hereof;
B. This Class A Warrant Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to application affecting enforcement of creditor's rights generally; and (ii) as limited by laws relating to the availability of specific performance, injunctive relief of other equitable remedies;
C. The Warrant Shares issuable upon the exercise of the Class A Warrants
purchased hereunder, when issued and delivered in accordance with the terms of this Class A Warrant Agreement, will be duly and validly issued, fully-paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under applicable state and federal securities laws including Regulation S promulgated by the SEC under the Act;
D. Subject, in part, to the truth and accuracy of the Warrant Holder's
representations set forth in Section 12 of this CI ass A Warrant Agreement, the offer, sale and issuance of the Warrant Shares issuable upon the exercise thereof, as contemplated by this Class A Warrant Agreement, are exempt from the registration requirements of the Act and the qualification or registration requirements of any state securities or other applicable blue sky laws; and
E. The execution, delivery and performance of this Class A Warrant Agreement
and the consummation of the transactions contemplated hereby will not result in any violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision or an event that results i n creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonremoval of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
Section 26. Counterparts:
This Class A Warrant Agreement may be executed in counterparts and by facsimile and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
I N WITNESS WHEREOF , the Parties hereto have caused this Class A Warrant Agreement to be duly executed as of the day and year first above written.
KINERJAPAY CORP .
/s/:Edwin Witarsa Ng
By: Edwin Ng, Chairman
WARRANT HOLDER
/s/: Iskandar Tanuseputra
By: Iskandar Tanuseputra
Exhibit A.2
CLASS A WARRANTS
WARRANT FORM
THE SECURITIES REPRESENTED BY THIS CLASS A WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS A WARRANT AGREEMENT BETWEEN ZAXIS INTERNATIONAL INC AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.
CLASS A WARRANTS
Form of Class A Warrant Certificate
KINERJAPAY CORP
.
This Warrant Certificate certifies that Iskandar Tanuseputra (the "Warrant Holder"), is the registered holder of 20,000 Class A Warrants (the "Class A Warrants") exercisable to purchase shares of Common Stock, par value $0.0001 (the "Warrant Shares") of KinerjaPay Corp., a Delaware corporation (the "Company"). Each Class A Warrant entitles the holder, subject to the satisfaction of the conditions to exercise set forth in Section 8 of the Class A Warrant Agreement referred to herein, to purchase from the Company at any time or from time to time on and after the date of the Class A Warrant Agreement and terminate on or prior to 5:00 p.m., Eastern time, on a date twenty-four (24) months from the date of the Class A Warrant Agreement (the "Warrant Expiration Date"), one (1) fully paid and non-assessable Warrant Share at the Exercise Price set forth in the Class A Warrant A Agreement, which is $1.00 per Warrant Share. The number of Warrant Shares for which each Class A Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Class A Warrant Agreement.
The Class A Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Class A Warrants to purchase Warrant Shares and are issued pursuant to the above-referenced Class A Warrant Agreement, dated as of May 19, 2016. The Warrant Holder hereby acknowledges full knowledge and understanding of the rights, limitation of rights, obligations, duties, immunities and other terms in the Class A Warrant Agreement , whether of the Company or the Warrant Holder, which Class A Warrant Agreement is hereby incorporated by reference in and made a part of this instrument.
The Warrant Holder may exercise the Class A Warrants, in whole or in part, by surrendering this Warrant Certificate, with the Form of Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the off ices of the Company specified in Section 14 of the Class A Warrant Agreement. If, upon any exercise of Class A Warrants evidenced hereby, the number of Class A Warrants exercised shall be less than the total number of Class A Warrants evidenced hereby, there shall be issued to the Warrant Holder hereof or his/her/its assignee a new Warrant Certificate evidencing the number of Class A Warrants not exercised.
This Warrant Certificate, when surrendered according to the terms set forth herein, may be exchanged in the manner and subject to the limitations provided in the Class A Warrant Agreement, for one or more other Warrant Certificates of like tenor evidencing in the aggregate alike number of Class A Warrants.
The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.
(Signatures on Following Page)
WITNESS the signature of the duly authorized signatory of the Company.
Dated: May 19, 2016
KinerjaPay Corp.
/s/: Edwin Witarsa Ng
By: Edwin Ng, CEO and Chairman
Exhibit A.3
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise of the Class A Warrants
evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders (or is concurrently tendering) payment in the amount of $1.00 for each such Warrant Share in an amount determined in accordance with the terms of the Class A Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of , a Person
who is not a U.S. Person as that term is defined in Rule 902 of Regulation S, and whose address is:
______________________ and that such certificate be delivered to ________________, not a U.S. Person, and whose address is:___________________.
If said number of Class A Warrants is less than the number of Class A Warrants evidenced by the Warrant Certificate, as calculated pursuant to the Class A Warrant Agreement, the undersigned requests that a new Warrant Certificate evidencing the number of Class A Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of _________________, not a U.S. Person and whose address is: ______________________ and that such Warrant Certificate be delivered to _____________________, not a U.S. Person and whose address is: ______________________
Dated:
Name of Holder of Warrant Certificate: ______________________
By: ______________________
(Please Print Name and Title, if applicable)
______________________
Address: ______________________
Signature: ______________________
Note : The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Class A Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed.
List of the Registrant's Subsidiaries
1. P.T. Kinerja Pay Indonesia, the Registrant's Indonesian subsidiary.
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the inclusion in this Registration Statement on Form S-1/A of our report dated February 11, 2016, of KinerjaPay Corp. (formerly Solarflex Corp.) relating to the audit of the financial statements for the period ending December 31, 2015 and the reference to our firm under the caption "Experts" in the Registration Statement.
/s/ M&K CPAS, PLLC
www.mkacpas.com
Houston, Texas
July 19, 2016