EXHIBIT 10.20
REGISTRATION RIGHTS AGREEMENT, dated May 30, 2005 between PPOL, Inc., a
California corporation (the "Corporation"), and the INVESTORS (as herein
defined).
The Investors own or have the right to purchase or otherwise acquire shares of
the Common Stock (as hereinafter defined) of the Corporation. The Corporation
and the Investors deem it to be in their respective best interests to set forth
the rights of the Investors in connection with public offerings and sales of the
Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, the Corporation and the Investors hereby
agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
"COMMISSION" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"COMMON STOCK" means the common stock of the Corporation.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 or any
successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect
from time to time.
"INVESTORS" means each entity who shall execute a counterpart signature
page hereto, and includes any successor to, or assignee or transferee
of, any such person who or which agrees in writing to be treated as an
Investors hereunder and to be bound by the terms and comply with all
applicable provisions hereof.
"OTHER SHARES" means at any time those shares of Common Stock which do
not constitute Primary Shares or Registrable Shares.
"PRIMARY SHARES" means at any time the authorized but unissued shares
of Common Stock and shares of Common Stock held by the Corporation in
its treasury.
"REGISTRABLE SHARES" means Restricted Shares which constitute Common
Stock.
"RESTRICTED SHARES" means shares of Common Stock held by the Investors.
As to any particular Restricted Shares, once issued, such Restricted
Shares shall cease to be Restricted Shares when (i) they have been
registered under the Securities Act, the registration statement in
connection therewith has been declared effective and they have been
disposed of pursuant to such effective registration statement or (ii)
they shall have ceased to be outstanding.
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"REGISTRATION DATE" means the date upon which the registration
statement pursuant to which the Corporation shall have initially
registered shares of Common Stock under the Securities Act for sale to
the public shall have been declared effective.
"RULE 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto or any complementary rule thereto (such as Rule
144A).
"SECURITIES ACT" means the Securities Act of 1933 or any successor
Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
2. PIGGYBACK REGISTRATION. If the Corporation at any time proposes for any
reason to register Primary Shares or Other Shares under the Securities
Act (other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto), it shall promptly give
written notice to the Investors of its intention to so register such
Primary Shares or Other Shares and, upon the written request delivered
to the Corporation within 30 days after delivery of any such notice by
the Corporation, of the Investors to include in such registration
Registrable Shares (which request shall specify the number of
Registrable Shares proposed to be included in such registration), the
Corporation shall use its best efforts to cause all such Registrable
Shares to be included in such registration on the same terms and
conditions as the securities otherwise being sold in such registration;
PROVIDED, HOWEVER, that if the managing underwriter advises the
Corporation that the inclusion of all Registrable Shares requested to
be included in such registration would interfere with the successful
marketing (including pricing) of the Primary Shares or Other Shares
proposed to be registered by the Corporation, then the number of
Primary Shares, Registrable Shares and Other Shares proposed to be
included in such registration shall be included in the following order:
(a) if the Corporation proposes to register Primary
Shares:
(i) first, the Primary Shares; and
(ii) second, the Registrable Shares and Other
Shares requested to be included in such
registration (or, if necessary, PRO RATA
among the holders thereof based upon the
number of Registrable Shares requested to be
registered by each such holder).
(b) if the Corporation proposes to register Other Shares
pursuant to a request for registration by the holders
of such Other Shares pursuant to a demand
registration right:
(i) first, the Other Shares held by the parties
demanding such registration;
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(ii) second, the Registrable Shares and Other
Shares (other than shares registered
pursuant to Section 2 (b)(i) hereof)
requested to be registered by the holders
thereof (or, if necessary, pro rata among
the holders thereof based on the number of
Registrable Shares and Other Shares
requested to be registered by each such
holder); and
(iii) third, the Primary Shares.
3. HOLDBACK AGREEMENT. If the Corporation at any time shall register
shares of Common Stock under the Securities Act (including any
registration pursuant to Section 2 hereof) for sale to the public, the
Investors shall not sell publicly, make any short sale of, grant any
option for the purchase of, or otherwise dispose publicly of, any
shares of Common Stock (other than those shares of Common Stock
included in such registration pursuant to Section 2 hereof) without the
prior written consent of the Corporation, for a period designated by
the Corporation in writing to the Investors, which period shall begin
not more than 10 days prior to the effectiveness of the registration
statement pursuant to which such public offering shall be made and
shall not last more than 180 days after the effective date of such
registration statement. The Corporation shall obtain the agreement of
any person permitted to sell shares of stock pursuant to contractual
registration rights to be bound by and to comply with this Section 3 as
if such person was an Investor hereunder.
4. PREPARATION AND FILING. If and whenever the Corporation is under an
obligation pursuant to the provisions of this Agreement to use its best
efforts to effect the registration of any Registrable Shares, the
Corporation shall, as expeditiously as practicable:
(a) use its best efforts to cause a registration
statement that registers such Registrable Shares to
become and remain effective for a period of 90 days
or until all of such Registrable Shares have been
disposed of (if earlier) (it being understood that
the Corporation may discontinue pursuant to Section 2
any registration);
(b) furnish, at least five business days before filing a
registration statement that registers such
Registrable Shares, a prospectus relating thereto or
any amendments or supplements relating to such a
registration statement or prospectus, to the
Investors' counsel, copies of all such documents
proposed to be filed (it being understood that such
five business-day period need not apply to successive
drafts of the same document proposed to be filed so
long as such successive drafts are supplied to the
Investors' counsel in advance of the proposed filing
by a period of time that is customary and reasonable
under the circumstances);
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(c) prepare and file with the Commission such amendments
and supplements to such registration statement and
the prospectus used in connection therewith as may be
necessary to keep such registration statement
effective for at least a period of 90 days or until
all of such Registrable Shares have been disposed of
(if earlier) and to comply with the provisions of the
Securities Act with respect to the sale or other
disposition of such Registrable Shares (it being
understood that the Corporation may discontinue
pursuant to Section 2 any registration);
(d) notify in writing the Investors' counsel promptly (i)
of the receipt by the Corporation of any notification
with respect to any comments by the Commission with
respect to such registration statement or prospectus
or any amendment or supplement thereto or any request
by the Commission for the amending or supplementing
thereof or for additional information with respect
thereto, (ii) of the receipt by the Corporation of
any notification with respect to the issuance by the
Commission of any stop order suspending the
effectiveness of such registration statement or
prospectus or any amendment or supplement thereto or
the initiation or threatening of any proceeding for
that purpose and (iii) of the receipt by the
Corporation of any notification with respect to the
suspension of the qualification of such Registrable
Shares for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purposes;
(e) use its best efforts to register or qualify such
Registrable Shares under such other securities or
blue sky laws of such jurisdictions as the Investors
reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable
to enable the Investors to consummate the disposition
in such jurisdictions of the Registrable Shares owned
by the Investors; PROVIDED, HOWEVER, that the
Corporation will not be required to qualify generally
to do business, subject itself to general taxation or
consent to general service of process in any
jurisdiction where it would not otherwise be required
to do so but for this paragraph (e) or to provide any
material undertaking or make any changes in its
By-laws or Certificate of Incorporation which the
Board of Directors determines to be contrary to the
best interests of the Corporation;
(f) furnish to the Investors such number of copies of a
summary Prospectus, if any, or other prospectus,
including a preliminary prospectus, in conformity
with the requirements of the Securities Act, and such
other documents as the Investors may reasonably
request in order to facilitate the public sale or
other disposition of such Registrable Shares;
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(g) use its best efforts to cause such Registrable Shares
to be registered with or approved by such other
governmental agencies or authorities as may be
necessary by virtue of the business and operations of
the Corporation to enable the Investors to consummate
the disposition of such Registrable Shares;
(h) notify the Investors on a timely basis at any time
when a prospectus relating to such Registrable Shares
is required to be delivered under the Securities Act
within the appropriate period mentioned in
subparagraph (a) of this Section 4, of the happening
of any event as a result of which the prospectus
included in such registration statement, as then in
effect, includes an untrue statement of a material
fact or omits to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading in the light of the
circumstances then existing and, at the request of
the Investors, prepare and furnish to the Investors a
reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so
that, as thereafter delivered to the offerees of such
shares, such prospectus shall not include an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading in the light of the circumstances then
existing;
(i) subject to the execution of confidentiality
agreements in form and substance satisfactory to the
Corporation, make available upon reasonable notice
and during normal business hours, for inspection by
the Investors, any underwriter participating in any
disposition pursuant to such registration statement
and any attorney, accountant or other agent retained
by the Investors or underwriter (collectively, the
"Inspectors"), all pertinent financial and other
records, pertinent corporate documents and properties
of the Corporation (collectively, the "Records"), as
shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and
cause the Corporation's officers, directors and
employees to supply all information (together with
the Records, the "Information") reasonably requested
by any such Inspector in connection with such
registration statement. Any of the Information which
the Corporation determines in good faith to be
confidential, and of which determination the
Inspectors are so notified, shall not be disclosed by
the Inspectors unless (i) the disclosure of such
Information is necessary to avoid or correct a
misstatement or omission in the registration
statement, (ii) the release of such Information is
ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or (iii) such
Information has been made generally available to the
public; the Investors agrees that it will, upon
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learning that disclosure of such Information is
sought in a court of competent jurisdiction, give
notice to the Corporation and allow the Corporation,
at the Corporation's expense, to undertake
appropriate action to prevent disclosure of the
Information deemed confidential;
(j) use its best efforts to obtain from its independent
certified public accountants "cold comfort" letters
in customary form and at customary times and covering
matters of the type customarily covered by cold
comfort letters; use its best efforts to obtain from
its counsel an opinion or opinions in customary form;
(k) provide a transfer agent and registrar (which may be
the same entity and which may be the Corporation) for
such Registrable Shares;
(l) issue to any underwriter to which the Investors may
sell shares in such offering certificates evidencing
such Registrable Shares;
(m) list such Registrable Shares on any national
securities exchange on which any shares of the Common
Stock are listed or, if the Common Stock is not
listed on a national securities exchange, use its
best efforts to qualify such Registrable Shares for
inclusion on the automated quotation system of the
National Association of Securities Dealers, Inc. (the
"NASD"), or such other national securities exchange
as the holders of a majority of such Registrable
Shares shall reasonably request;
(n) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission
and make available to its security holders, as soon
as reasonably practicable, earnings statements (which
need not be audited) covering a period of 12 months
beginning within three months after the effective
date of the registration statement, which earnings
statements shall satisfy the provisions of Section
11(a) of the Securities Act; and
(o) use its best efforts to take all other steps
necessary to effect the registration of such
Registrable Shares contemplated hereby.
Each holder of the Registrable Shares, upon receipt
of any notice from the Corporation of any event of
the kind described in Section 4(h) hereof, shall
forthwith discontinue disposition of the Registrable
Shares pursuant to the registration statement
covering such Registrable Shares until such holder's
receipt of the copies of the supplemented or amended
prospectus contemplated by Section 4(h) hereof, and,
if so directed by the Corporation, such holder shall
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deliver to the Corporation all copies, other than
permanent file copies then in such holder's
possession, of the prospectus covering such
Registrable Shares at the time of receipt of such
notice.
5. EXPENSES. All expenses (other than underwriting discounts and
commissions relating to the Registrable Shares, as provided in the last
sentence of this Section 5) incurred by the Corporation in complying
with Section 4, including, without limitation, all registration and
filing fees (including all expenses incident to filing with the NASD),
fees and expenses of complying with securities and blue sky laws,
printing expenses, fees and expenses of the Corporation's counsel and
accountants and reasonable fees and expenses of the Investors' counsel,
shall be paid by the Corporation; PROVIDED, HOWEVER, that all
underwriting discounts and selling commissions applicable to the
Registrable Shares and Other Shares shall be borne by the holders
selling such Registrable Shares and Other Shares, in proportion to the
number of Registrable Shares and Other Shares sold by each such holder.
6. INDEMNIFICATION.
(a) In connection with any registration of any Registrable Shares
under the Securities Act pursuant to this Agreement, the
Corporation shall indemnify and hold harmless the holders of
Registrable Shares, each underwriter, broker or any other
person acting on behalf of the holders of Registrable Shares
and each other person, if any, who controls any of the
foregoing persons within the meaning of the Securities Act
against any losses, claims, damages or liabilities, joint or
several (or actions in respect thereof), to which any of the
foregoing persons may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or allegedly untrue
statement of a material fact contained in the registration
statement under which such Registrable Shares were registered
under the Securities Act, any preliminary prospectus or final
prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any
document incident to registration or qualification of any
Registrable Shares, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading or, with respect to any
prospectus, necessary to make the statements therein in the
light of the circumstances under which they were made not
misleading, or any violation by the Corporation of the
Securities Act or state securities or blue sky laws applicable
to the Corporation and relating to action or inaction required
of the Corporation in connection with such registration or
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qualification under such state securities or blue sky laws;
and shall reimburse the holders of Registrable Shares, such
underwriter, such broker or such other person acting on behalf
of the holders of Registrable Shares and each such controlling
person for any legal or other expenses reasonably incurred by
any of them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED,
HOWEVER, that the Corporation shall not be liable in any such
case to the extent that any such loss, claim, damage,
liability or action (including any legal or other expenses
incurred) arises out of or is based upon an untrue statement
or allegedly untrue statement or omission or alleged omission
made in said registration statement, preliminary prospectus,
final prospectus, amendment, supplement or document incident
to registration or qualification of any Registrable Shares in
reliance upon and in conformity with written information
furnished to the Corporation specifically for use in the
preparation thereof; PROVIDED FURTHER, however, that the
foregoing indemnity agreement is subject to the condition
that, insofar as it relates to any untrue statement, allegedly
untrue statement, omission or alleged omission made in any
preliminary prospectus but eliminated or remedied in the final
prospectus (filed pursuant to Rule 424 of the Securities Act),
such indemnity agreement shall not inure to the benefit of any
Investors, underwriter, broker or other person acting on
behalf of holders of the Restricted Shares from whom the
person asserting any loss, claim, damage, liability or expense
purchased the Restricted Shares which are the subject thereof,
if a copy of such final prospectus had been made available to
such person and such Investors, underwriter, broker or other
person acting on behalf of holders of the Registrable Shares
and such final prospectus was not delivered to such person
with or prior to the written confirmation of the sale of such
Registrable Shares to such person.
(b) In connection with any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, each
holder of Registrable Shares shall severally and not jointly
indemnify and hold harmless (in the same manner and to the
same extent as set forth in the preceding paragraph of this
Section 6) the Corporation, each director of the Corporation,
each officer of the Corporation who shall sign such
registration statement, each underwriter, broker or other
person acting on behalf of the holders of Registrable Shares
and each person who controls any of the foregoing persons
within the meaning of the Securities Act with respect to any
statement or omission from such registration statement, any
preliminary prospectus or final prospectus contained therein
or otherwise filed with the Commission, any amendment or
supplement thereto or any document incident to registration or
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qualification of any Registrable Shares, if such statement or
omission was made in reliance upon and in conformity with
written information furnished to the Corporation or such
underwriter specifically for use in connection with the
preparation of such registration statement, preliminary
prospectus, final prospectus, amendment, supplement or
document.
(c) Promptly after receipt by an indemnified party of notice of
the commencement of any action involving a claim referred to
in the preceding paragraphs of this Section 6, such
indemnified party will, if a claim in respect thereof is made
against an indemnifying party, give written notice to the
latter of the commencement of such action. In case any such
action is brought against an indemnified party, the
indemnifying party will be entitled to participate in and to
assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it
may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be
responsible for any legal or other expenses subsequently
incurred by the indemnified party in connection with the
defense thereof; PROVIDED, HOWEVER, that if any indemnified
party shall have reasonably concluded, based upon the advice
of counsel, that there may be one or more legal or equitable
defenses available to such indemnified party which are
additional to or conflict with those available to the
indemnifying party, or that such claim or litigation involves
or could have an effect upon matters beyond the scope of the
indemnity agreement provided in this Section VIII, the
indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party and
such indemnifying party shall reimburse such indemnified party
and any person controlling such indemnified party for that
portion of the fees and expenses of any one counsel retained
by the indemnified party which is reasonably related to the
matters covered by the indemnity agreement provided in this
Section 6.
(d) If the indemnification provided for in this Section 6 is held
by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, claim, damage,
liability or action referred to herein, then the indemnifying
party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by
such indemnified party as a result of such loss, claim,
damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the
other in connection with the statements or omissions which
resulted in such loss, claim, damage, liability or action as
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well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
7. INFORMATION BY INVESTORS. The Investors shall furnish to the
Corporation such written information regarding the Investors and the
distribution proposed by the Investors as the Corporation may
reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred
to in this Agreement.
8. EXCHANGE ACT COMPLIANCE. From the Registration Date or such earlier
date as a registration statement filed by the Corporation pursuant to
the Exchange Act relating to any class of the Corporation's securities
shall have become effective, the Corporation shall comply with all of
the reporting requirements of the Exchange Act applicable to it
(whether or not it shall be required to do so, but specifically
excluding Section 14 of the Exchange Act if not then applicable to the
Corporation) and shall comply with all other public information
reporting requirements of the Commission which are conditions to the
availability of Rule 144 for the sale of the Common Stock. The
Corporation shall cooperate with the Investors in supplying such
information as may be necessary for the Investors to complete and file
any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
9. NO CONFLICT OF RIGHTS. The Corporation shall not, after the date
hereof, grant any registration rights which conflict with the
registration rights granted hereby.
10. TERMINATION. This Agreement shall terminate and be of no further force
or effect when there shall no longer be any Registrable Shares
outstanding.
11. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the Corporation and the Investors and, subject to Section
12, the respective successors and assigns of the Corporation and the
Investors.
12. ASSIGNMENT. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written
approval of the other parties; provided, however, that any Investor may
assign any of its rights hereunder to (i) any affiliate of such
Investor, (ii) any person who shall acquire substantially all of the
assets of such Investor or such affiliate or a majority in voting power
of the capital stock of such Investor, or such affiliate (whether
pursuant to a merger, consolidation, stock sale or otherwise), and
(iii) any person to whom such Investor shall transfer any Registrable
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Shares (PROVIDED, HOWEVER, that such purchaser or transferee shall, as
a condition to the effectiveness of such assignment, be required to
execute a counterpart to this Agreement agreeing to be treated as an
Investor whereupon such purchaser or transferee shall have the benefits
of, and shall be subject to the restrictions contained in, this
Agreement as if such purchaser or transferee was originally included in
the definition of an Investors herein and had originally been a party
hereto).
13. ENTIRE AGREEMENT. This Agreement and the other writings referred to
herein or therein or delivered pursuant hereto or thereto, contain the
entire agreement among the Corporation and the Investors with respect
to the subject matter hereof and supersede all prior and
contemporaneous arrangements or understandings with respect thereto.
14. NOTICES. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in
a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or
certified mail, return receipt requested, postage prepaid, addressed to
such party at the address set forth below or such other address as may
hereafter be designated in writing by such party to the other parties:
(i) if to the Corporation, to:
PPOL, Inc.
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(ii) if to the Investors, to:
K.K. Contents Provider Tokyo
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Attn. Akira Katakabe
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All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery or
delivery by telecopy, on the date of such delivery, (b) in the case of
dispatch by nationally-recognized overnight courier, on the second
business day following such dispatch and (c) in the case of mailing, on
the fifth business day after the posting thereof.
15. MODIFICATIONS; AMENDMENTS; WAIVERS. The terms and provisions of this
Agreement may not be modified or amended, nor may any provision be
waived, except pursuant to a writing signed by the Corporation and the
holders of at least a majority of the Registrable Shares then
outstanding; PROVIDED, HOWEVER, that any amendment to or modification
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of this Agreement which would have a disproportionate adverse affect on
the rights of any Investors shall require the written consent of such
Investors.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an
original agreement, but all such counterparts together shall constitute
but one agreement.
17. HEADINGS. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed
to be a part of this Agreement.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to
contracts made and to be performed wholly therein.
13
IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights
Agreement on the date first written above.
PPOL, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇
Its Chief Executive Officer
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its Chief Operating Officer
INVESTORS
K.K. CONTENTS PROVIDER TOKYO
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Its Representative Director
K.K. H.I. CONSULTANTS
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇
Its Representative Director
K.K. SEAGULL
/s/ Tetsuhou Suehiro
-------------------------------------
By: Tetsuhou Suehiro
Its Representative Director
K.K. SYSTEM PARTNERS
/s/ Akira Katakabe
-------------------------------------
By: Akira Katakabe
Its Representative Director
14
