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Exhibit 10.9
THIS SALE AND PURCHASE AGREEMENT is made 1st day of January 1999
BETWEEN
(1) XXXXX XXXX MING and CHING XXXX XXXXX both of Room 1008-9 Shun Tak
Centre, West Tower, 000-000, Xxxxxxxxx Xxxx Xxxxxxx, Xxxx Xxxx ("the
Vendor");
(2) XXXXXX INTERNATIONAL TRAVEL SERVICES LIMITED whose registered office is
situate at 12/F Flats A & B, Gold Union Commercial Building, 00
Xxxxxxxxx Xxxx Xxxxxxx, Xxxx Xxxx ("xxx Company") and
(3) WONDERWIDE CONSULTANTS LIMITED, a company incorporated in British
Virgin Islands ("the Purchaser").
WHEREAS
(1) The Company is a company limited by shares incorporated in Hong Kong,
with 100,000 ordinary shares of HK$10.00 each at par issued. Xx. Xxxxx
Xxxx Xxxx holds 75,000 shares and Xx. Xxxxx Xxxx Xxxxx holds 25,000
shares.
(2) Xx. Xxxxx and Xx. Xxxxx (collectively "the Vendor") agreed to sell
their respective share of the Company to the Purchaser, and the
Purchaser agrees to purchase the same on the following terms and
conditions.
IT IS HEREBY AGREED that:
1. INTERPRETATION
1.1 (a) "The parties" means all of the parties to this Agreement.
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(b) "Warranties" means the representations, warranties and
undertakings on the part of the Vendor set out in the Schedule
hereto.
1.2 A document expressed to be "in the agreed form" means a document the
terms of which have been approved by or on behalf of each of the
parties thereto and a copy of which has been signed for the purposes of
identification by or on behalf of which have been approved by or on
behalf of each of the parties thereto and a copy of which has been
signed for the purposes of identification by or on behalf of each of
them.
1.3 References to Clauses and Schedules relate to this Agreement unless
otherwise stated.
1.4 Words importing the singular number shall include the plural number and
vice versa and words importing a gender shall include every gender.
1.5 Headings of Clauses are for reference only and shall be ignored in
construing this Agreement.
2. SALE AND PURCHASE OF SHARES
2.1 Subject to and on the terms and conditions set out in this Agreement,
the Vendor shall sell and the Purchaser shall purchase 100,000 shares
of HK$10.00 each (collectively called "the Sale Shares") free from all
charges, liens, encumbrances, equities, claims and other third party
rights whatsoever and together with all benefits and rights attached or
accruing to them including but without limitation the right to receive
all dividends and distributions (if any).
2.2 The total consideration payable by the Purchaser to the Vendor for the
Sale Shares shall be HK$200,000.00 which shall be paid on completion.
2.3 Completion of the sale and purchase of the Sale Shares ("Completion")
shall take place upon signing of this Agreement by the parties.
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2.4 At Completion and against payment of BK$200,000.00 in manner in (b)
below:
(a) The Vendor shall jointly and severally deliver to the
Purchaser:
(i) all original and copies of documents and papers (if
any) now held by the Vendor jointly or severally in
relation to the business of the Company;
(ii) sold notes and Instruments of transfer in respect of
the Sale Shares duly executed by the Vendor
respectively in favour of the Purchaser and its
nominee together with the related share certificates;
(b) The Purchaser shall deliver cashier order or solicitors'
cheque for HK$200,000.00 payable to the Vendor or their
authorised recipient as they may direct in payment and full
discharge of the consideration for the Sale Shares.
2.5 All stamp duty (if any) payable in respect of the sale and purchase of
the Sale Shares shall be borne by the Purchaser solely.
3. WARRANTIES
3.1 The Vendor jointly and severally:
(a) represents, warrants and undertakes to Purchaser that each of
the Warranties will, save as disclosed to the Purchaser prior
to Completion, be true and accurate in all material respects
at Completion and is now and will at all times between the
date hereof and Completion be true and accurate in all
material respects;
(b) accepts that the Purchaser is entering into this Agreement in
reliance upon each of the Warranties; and
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(c) undertakes to indemnify the Purchaser against any losses,
costs, expenses, charges or liabilities which it may suffer or
incur arising out of or in connection with:
(i) any of the Warranties being untrue, misleading or
having been breached in a material respect;
(ii) the settlement of any claim that any of the
Warranties are untrue, misleading or have been
breached;
(iii) any legal proceedings in which the Purchaser claims
that any of the Warranties are untrue or misleading
or have been breached and in which judgment is given
for the Purchaser; or
(iv) the enforcement of any such settlement or judgment.
3.2 Without prejudice to any other remedy available to the Purchaser or its
ability to claim damages on any basis which is available to it by
reason of any of the Warranties being untrue or misleading or being
breached in a material respect, the Vendor jointly and severally
undertake with the Purchaser that the Vendor will, at the direction of
the Purchaser, pay to the Purchaser or (in the case of a liability to
another person which has not been discharged) the person to whom the
liability has been incurred an amount equal to any loss, deficiency or
liability of the Purchaser arising from any of the Warranties being
untrue, misleading or breached in a material respect and which would
not have existed or arisen if the Warranty in question had not been
untrue, misleading or breached in a material respect.
3.3 Each of the Warranties shall constitute a separate and independent
warranty to the intent that the Purchaser have a separate claim and
right of action in respect of every breach of any of the Warranties
(provided that the Purchaser not be entitled to recover more than once
in respect of the same loss) and save as expressly provided to the
contrary, no Warranty shall limit or govern the extent or application
of any other Warranty.
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4. LEGAL COSTS
4.1 Each party shall bear its own costs, charges and expenses connected
with the negotiation, preparation and implementation of this Agreement.
5. LAW AND JURISDICTION
5.1 This Agreement shall be governed by and construed in accordance with
Hong Kong law and each of the parties hereto irrevocably submit to the
non-exclusive jurisdiction of the Hong Kong courts in respect of any
claim or matter arising under this Agreement.
6. MISCELLANEOUS
6.1 Each of the parties:
(a) acknowledges and confirms that it has entered into this
Agreement in consideration of each of the other parties
entering into this Agreement; and
(b) agrees to do and execute or procure to be done and executed
all such further acts, deeds, documents and things as may be
necessary to give full effect to the terms and intent of this
Agreement.
6.2 Each notice, demand or other communication given or made under this
Agreement shall be in writing and delivered or sent to the relevant
party at its address set out above. Any notice, demand or other
communication so addressed to the relevant party shall be deemed to
have been delivered, when actually delivered to the relevant address.
6.3 No failure or delay by any party in exercising any right, power or
remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of the same preclude any further
exercise thereof or the exercise of any other right, power or
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remedy. Without limiting the foregoing, no waiver by any party of any
breach of any provision hereof shall be deemed to be a waiver of any
subsequent breach of that or any other provision hereof. If at any time
any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect, the legality, validity and enforceability
of the remaining provisions of this Agreement shall not be affected or
impaired thereby. The rights and remedies herein provided are
cumulative and not exclusive of any rights and remedies provided by
law.
6.4 This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when
so executed and delivered shall be an original, but all the
counterparts shall together constitute one and the same instrument.
6.5 The Agreement shall be binding on the successors and assigns of the
parties.
As WITNESS whereof the parties hereto have caused this Agreement to be
executed on the date and year first above written.
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SIGNED by Xxxxx Xxxx Ming )
)
in the presence of: )
SIGNED BY Ching Xxxx Xxxxx )
in the presence of: )
SIGNED by XXXXX XXXX MING )
for and on behalf of the Company )
in the presence of: )
SIGNED by XXXXX XXXX MING )
for and on behalf of the Purchaser )
in the presence of: )
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THE SCHEDULE
The Warranties
The Vendor jointly and severally hereby represents and warrants to and covenants
and undertakes with the Purchaser that as at the date of this Agreement and as
at Completion:
1. Recitals
1.1 The facts stated in the recitals of this Agreement are and will on
Completion be in all respects true, accurate and complete.
2. Shareholding and Shares etc.
2.1 The Vendor are and will at Completion be the beneficial owner of the
Sale Shares.
2.2 The Sale Shares will not at Completion be subject to any claim, option,
charge, lien, encumbrance or equity and no person has any right to call
for the issue of any shares in the capital of the Company.
3. Accounts
3.1 Save as disclosed, the. Company has not outstanding any loan, loan
capital and any deposits which it has not repaid and has not granted
any loans or deposited any money, which has not been repaid; it has not
agreed to borrow or lend any such money; and the Company does not own
the benefit of any debt (whether present or future) other than debts
due to it and it is not a party to any factoring, discounting or other
arrangement with respect to passing the benefit of such debts to any
other person provided always that the foregoing shall not apply to any
transactions performed made or entered into in the ordinary course of
its business.
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3.2 The Company will, at Completion, be the owner of and will have good
title to all of the assets included in the Accounts given to the
Purchaser and no such assets will, pending completion, be disposed of
without the Purchaser's prior written consent.
3.3 Save as disclosed in this Agreement, the Company has not entered into
any agreement for professional services, construction or for the
purchase of material equipment, plant, machinery, furniture, fixture or
fitting and vehicle or any asset except in the ordinary course of
business.
3.4 Save as disclosed to the Purchaser, the Company has not created any
mortgage, charge, lien, debenture or other security interest or
encumbrance of any kind which is still subsisting over the whole or any
part of its undertakings or assets.
3.5 Save as disclosed in this Agreement, since the incorporation of the
Company:-
(a) the business of the Company has been continued to be carried
on in its ordinary course both as regards the nature, scope
and manner of conducting the business and so as to maintain
the business as a going concern;
(b) there has been no involuntary transfer, other form of security
or encumbrance on, over or affecting the whole or any part of
the undertaking, property or assets of the Company and no
agreement, arrangement or commitment to give or create any of
the foregoing;
(c) the Company has only entered into transactions and incurred
liabilities in the ordinary course of its day-to-day business;
(d) the assets of the Company have not been depleted by any
unlawful or unauthorised act on the part of any person;
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(e) no dividend has been declared or paid on and no distribution
of capital made in respect of any share capital of the Company
and no loans or loan capital have been repaid In whole or in
part; and
(f) there has been no material adverse change in the financial
position or prospects of the Company.
4. Corporate Records and Affairs
4.1 The Company has since incorporation carried on no business other than
being a travel company.
4.2 The Company is not engaged in any litigation or arbitration proceedings
and no such proceedings are pending or threatened against the Company
and the Vendor knows of no facts or matters likely to give rise to any
such proceedings or prosecutions.
4.3 The Company is not in default of any of its obligation or in breach of
any restriction, whether contractual or statutory or otherwise.
4.4 Save as disclosed in this Agreement, since the incorporation of the
Company and up to and inclusive of Completion, there has not been, nor
will there be, depleting of the assets of the Company regardless of
whether such deletion be due to any unlawful act on the part of any
person or otherwise.
4.5 Save as disclosed to the Purchaser, the Company is not and will not at
Completion be indebted to any person and will not at Completion have
any outstanding mortgages, debentures, loan capital, bank overdraft or
similar indebtedness or contingent liabilities or other contracts or
engagements whatsoever.
4.6 There has been and will at Completion be no material adverse change in
the position, business, finance or prospects of the Company.
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4.7 Since its incorporation, the company has not entered into any unusual
contracts or undertaken any long term or onerous obligations whatsoever
which has not been disclosed in this Agreement.
4.8 All resolutions passed whether by the directors or the shareholders of
the Company have been, and will until Completion be, duly and
accurately recorded in the minute books of the Company the there are no
resolutions whatsoever which have not been so recorded.
4.9 All resolutions recorded in the minute books of the Company have been
duly and validly passed by the directors or shareholders of the Company
(as the case may be).
4.10 The Company has since its incorporation complied and will up to
Completion comply with all applicable laws and regulations whether of
Hong Kong or elsewhere and there is and will be no violation of, or
default with respect to any statute, regulation, order, decree or
judgment of any court of Hong Kong or any foreign country which could
have a material adverse effect on the assets or operations of the
Company.
4.11 All necessary licenses, consents, permits and authorities (if any) have
been duly obtained by the Company and all such licenses, consents,
permits and authorities are and will until Completion be valid and
subsisting, and the Company is not in breach of any of the terms or
conditions of any such licenses, consents, permits and authorities.
4.12 Save as disclosed to the Purchaser on or before the signing of this
Agreement, there are no outstanding contracts, engagements or
liabilities, whether ascertained or contingent and whether quantified
or disputed, of the Company.
4.13 Save as disclosed in this Agreement as at the date of this Agreement
there are not outstanding with respect to the Company:
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(a) any agreement or arrangement, whether by way of guarantee,
indemnity or otherwise, under which the company is under a
prospective or contingent liability in respect of the
obligations of any other person;
(b) any liability for any statutory or governmental levy or
charge;
(c) any power of attorney or other authority (express or implied)
which is still outstanding or effective to or in favour of any
person to enter into any contract or commitment or to do
anything on behalf of the Company,
(d) any dispute with any revenue, or other official, department in
Hong Kong or elsewhere, in relation to the affairs of the
Company, and there are no facts which may give rise to any
such dispute.
4.14 Save as disclosed in this Agreement, compliance with the terms of this
Agreement does not and will not:
(a) conflict with, or result in the breach of, or constitute a
default under, any of the terms, conditions or provisions of
any agreement or instrument to which the Company is party, or
any provision of the Memorandum or Articles of Association of
the Company or any encumbrance, lease, contract, order,
judgment, award, Injunction, regulation or other restriction
or obligation of any kind or character by which or to which
any asset of the Company is bound or subject;
(b) relieve any person from any obligation to the Company (whether
contractual or otherwise), or enable any person to determine
any such obligation, or any right or benefit enjoyed by the
Company, or to exercise any right, whether under an agreement
with, or otherwise in respect of, the Company;
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(c) result in the creation, imposition, crystallization or
enforcement of any encumbrance whatsoever on any of the assets
of the Company; and
(d) result in any present or future indebtedness of the Company
becoming due, or capable of being declared due and payable
prior to its stated maturity.
4.15 The company has not:
(a) committed any breach of any statutory provision, order, by-law
or regulation binding on it, or of any provision of its
Memorandum or Articles of Association, or of any trust deed,
agreement or license to which it is a party, or of any
covenant, mortgage, charge or debenture given by it;
(b) entered into any transaction which is still executory and
which is or may be enforceable by it by reason of the
transaction being voidable at the instance of any other party
or ultra xxxxx, void or illegal; or
(c) omitted to do anything required or permitted to be done by it
necessary for the protection of its title to or for the
enforcement or the preservation of any order of priority any
properties or rights owned by it.
5. Subsidiary
5.1 The company does not have any subsidiary.
6. General Matters
6.1 All the information given in this Agreement including the Recitals,
Schedules and Exhibits is and will at Completion be true, accurate and
complete in all material respects and are not misleading in any respect
for any reason whatsoever.
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6.2 There are no material facts or circumstances, in relation to the
financial condition of the Company, which have not been fully and
fairly disclosed to Rohtak, and which, if disclosed, might reasonably
have been expected to affect the decision of the Purchaser or otherwise
affect the amount of consideration for the Sale Shares to enter into
this Agreement.
7. Compliance with Legal Requirements
7.1 The Company has power and has been duly authorised to carry on its
business and to own its properties and assets and, has complied with
and will at Completion comply with all the provisions of all applicable
laws, regulations and orders relating thereto in the conduct of its
business or otherwise and has duly paid all stamp duty, capital duty,
registration or other fees payable in connection with the Company and
all issues of shares, debentures or other securities.
7.2 All such consents, approvals, licenses, registrations and clearances as
shall be required from any governmental or regulatory authority or any
person for or in connection with the business of the Company have been
obtained (and, if the same have been granted subject to any conditions,
such conditions have been fulfilled) and are validly subsisting and, to
the best of knowledge of the Vendor after having made all reasonable
enquiries, there are no circumstances which might lead to the
cancellation, withdrawal or suspension of the foregoing.
7.3 The Company has not committed and is not liable for any criminal,
illegal, or unauthorised act or is in breach of any obligation whether
imposed by or pursuant to any statute, contract or otherwise and none
of the activities or contracts or rights of the Company Is ultra xxxxx,
unauthorised, invalid or in breach in any material respect of any
contract or covenant and no outstanding notices have been served on the
Company may be interested have been duly stamped and are in the
possession of the Company.
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7.4 The books and records of the company have been brought up-to-date in
compliance with all the legal requirements and directions to which the
Company is subject and all returns, particulars, resolutions or other
documents required to be delivered by the Company to the relevant
authorities have been duly executed, delivered, filed or registered In
proper form and on due dates, and all resolutions passed whether by the
directors or members of the company have been duly and accurately
recorded in the minute books thereof.
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Dated the 1st day of January 1999
(1) XXXXX XXXX MING
AND
CHING XXXX XXXXX
(2) XXXXXX INTERNATIONAL
TRAVEL SERVICES LIMITED
(3) WONDERWIDE
CONSULTANTS LIMITED
SALE AND PURCHASE
AGREEMENT
MESSRS. NG, XXXXX & PARTNERS
SOLICITORS
901, 9/F, CROCODILE HOUSE 2
00 XXXXXXXXX XXXX XXXXXXX,
XXXX XXXX
TEL: 00000000 FAX: 00000000
REF: WY/1/89098
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