THIS AGREEMENT is made on the 21st day of February 2008 BETWEEN
Exhibit 10.7
THIS AGREEMENT is made on the
21st
day of February 2008
BETWEEN
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1.
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TAN XXX XXXX (Passport
Xx. X00000000, Xxxxxxxxx NRIC No. X0000000X), of Block 234 #00-000, Xxxxxx
Xxxxxx 00, Xxxxxxxxx 000000 (the “Vendor”);
and
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2.
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XXXXX CORPORATION
LIMITED (Company Registration No. 199206945E), a public listed
company incorporated under the laws of the Republic of Singapore and
having its registered office at Block 0000 Xxx Xx Xxx Xxx 00, #00-00,
XXXXXxxxx 0, Xxxxxxxxx 000000 (the “Purchaser”);
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(collectively
the “Parties”,
and each a “Party”).
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WHEREAS:
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A.
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Pursuant
to an agreement dated 22 August 2007 (the “Sale
and Purchase Agreement”) between the Vendor and the Purchaser, the
Vendor agreed to sell, and the Purchaser agreed to purchase the entire
paid-up share capital of Luckybull Limited (“Luckybull”),
an investment holding company established in accordance with the laws of
the British Virgin Islands, on the terms and subject to the conditions
contained therein (the “Purchase”).
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B.
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Pursuant
to further negotiations between the Parties, the Vendor shall sell, and
the Purchaser shall purchase, up to ninety percent (90%) (the “Sale
Shares”) of the entire issued and paid-up capital of Mopie (BVI)
Limited, a private limited liability company established in accordance
with the laws of the British Virgin Islands ( the “Company”),
which, as at the date hereof, owns 100% of the outstanding shares of
Luckybull as a result of the share exchange agreement entered into between
the Company and the sole shareholder of Luckybull on or around 6 December
2007 (the “Share
Exchange Agreement”) in substitution of the terms of the Purchase
(the “Restructuring”).
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C.
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In
connection with the Restructuring and in the spirit of goodwill and
cooperation, the Parties agree to amend the Sale and Purchase Agreement on
the terms and subject to the conditions herein.
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IT IS AGREED as
follows:
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1.
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RECITALS
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The
Recitals of the Sale and Purchase Agreement are amended as
follows:
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1.1
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Recital
(A) shall be amended by deleting it in its entirety and inserting the
following:
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“Luckybull Limited
(“Luckybull”) is an investment holding company incorporated in the
British Virgin Islands on 27th
April 2006 (Company Registration No.
668223).”.
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1.2
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By
deleting the phrase “the Company” in Recital (B) and inserting the word
“Luckybull” in its place;
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1.3
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By
deleting Recital (D) in its entirety; and
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1.4
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By
deleting Recital (F) of the Sale and Purchase Agreement in its entirety
and inserting the following:
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“(E)
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The
Vendor proposes to sell, and the Purchaser wishes to purchase, up to
ninety percent (90%) of the entire paid-up share capital of Mopie (BVI)
(the “Sale
Shares”), on the terms and subject to the conditions
contained in this Agreement (the “Acquisition”).
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2.
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DEFINITIONS
AND INTERPRETATION
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2.1
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Save
as expressly provided in this Agreement, all terms and references used in
this Agreement which are defined in the Sale and Purchase Agreement but
are not defined in this Agreement shall have the same meaning and
construction ascribed to them in the Sale and Purchase
Agreement.
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2.2
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The
following definitions shall be inserted to replace the current definitions
as set out in the Sale and Purchase Agreement in their
entirety:
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“Accounts
Date” means, in relation to the Target Companies, 31 December
2007;
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“Acquisition”
means the proposed acquisition by the Purchaser of up to ninety percent
(9% of the issued and paid-up share capital of the Company from the
Vendor;
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“Company”
means Mopie (BVI) Limited, a private limited liability company established
in accordance with the laws of the British Virgin
Islands;
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“Management
Accounts” means the unaudited management accounts of the Target
Companies for the financial period ended 31 December
2007;
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“Placement”
means the placement of 500,000 new shares in the Company which will result
in the Vendor owning ninety per cent. (90%) of the resultant issued and
paid-up capital of the Company pursuant to the said placement
and the Initial Share Transfer, and prior to
Completion;
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“Sale
Shares” means such number of ordinary shares of the Company
representing ninety percent (90%), or such other number of ordinary shares
of the Company legally and/or beneficially owned by the Vendor at
Completion, of the entire issued and paid-up share capital of the
Company;
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“Share
Exchange Agreement” means the share exchange agreement entered into
between the Vendor and the Company on 6 December 2007, pursuant to which
91.8% of the issued and
paid-up share capital of the Company shall be transferred to the
Vendor, with it being understood by the parties that the Company
plans to undertake the Placement;
and
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-2-
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“Target
Companies” means the Company, Luckybull, Molong and Mopie
collectively, and each a “Target
Company”;”.
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2.2A
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The
following definition shall be inserted between the definitions of
“Long-Stop Date” and “Management Accounts” in the Sale and Purchase
Agreement:
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“Luckybull”
means Luckybull Limited, a limited liability company established in
accordance with the laws of the British Virgin
Islands;”.
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2.2B
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Clause
8A.2 of the Sale and Purchase Agreement shall be amended by replacing the
reference to the defined term “the Company” with the defined term “the
Target Companies”.
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2.2C
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Clause
8B of the Sale and Purchase Agreement shall be amended by replacing all
references to the defined term “the Company” with the defined term
“Luckybull”.
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2.3
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Unless
the context otherwise requires, words importing one gender include all
other genders, words importing the singular include the plural and vice
versa.
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2.4
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The
words “hereof”, “herein”, “hereon” and “hereunder” and words of similar
import, when used in this Agreement, refer to this Agreement as a whole
and not to any particular provision.
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2.5
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The
headings to the clauses do not form part of this Agreement and shall have
no legal effect and shall not be relied upon in the interpretation or
construction of any of the provisions of this
Agreement.
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2.6
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References
herein to “Recitals”, “Clauses” and “Schedules” are to recitals, clauses
and schedules to this Agreement.
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2.7
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Reference
to any statute or statutory provisions includes a reference to that
statute or statutory provision as from time to time amended, extended or
re-enacted, with or without modification.
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3.
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ESTABLISHMENT OF
GROUP
STRUCTURE
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3.1
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The
following Xxxxxxx 0X, 0X xxx 0X xxxxx xx inserted between Clauses 2 and 3
in the Sale and Purchase Agreement:
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“2A.
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Establishment of Group
Structure
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2A.1
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The
Parties agree that the following events shall take place prior to
Completion for the purposes of establishing the Group Structure (as
defined below):
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2A.1.1
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Pursuant
to the Share Exchange Agreement, the Company shall transfer (the “Initial
Share Transfer”) to the Vendor 91.8% of the entire pre-offering
issued and paid-up share capital of the Company (the “Initial Shares”),
with the Vendor being the legal and valid owner of the Initial
Shares;
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-3-
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2A.1.2
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pursuant
to the Initial Share Transfer and on the understanding between the parties
to the Share Exchange Agreement that the Company plans undertake the
Placement, the Company shall be listed on the Over-the-Counter Bulletin
Board in the United States of America (the “OTCBB”),
with the Vendor owning 91.8% of the entire issued and paid-up capital of
the Company, and various shareholders owning the remaining 8.2% of the
entire issued and paid-up share capital of the Company;
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2A.1.3
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pursuant
to completion of the Placement, the Vendor owning ninety per cent. (90%)
of the entire issued and paid-up capital of the Company and various
shareholders owning the remaining ten percent (10%), of the entire issued
and paid-up share capital of the Company;
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2A.1.4
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the
Purchaser obtaining the approval of its shareholders for the Acquisition
and the transactions contemplated under this Agreement;
and
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2A.1.5
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completion
of the bond subscription agreement (the “Bond
Subscription Agreement”) dated 9 November 2007 entered into between
the Purchaser and X.X. Xxxxx Mauritius Trading No. 3 Limited, under which
the Purchaser proposes to issue up to S$150 million (in 75 equal
successive tranches of S$2 million each) in aggregate principal amount of
redeemable zero coupon convertible bonds to the Subscriber and/or its
affiliates and/or funds other investment vehicles and/or private accounts
managed and/or advised by X. X. Xxxxx & Co., L.P. and/or its
affiliates (the “Bond
Subscription”); and
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2A.1.6
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the
Purchaser having raised and drawn down a sufficient amount of funds from
the Bond Subscription to enable the Purchaser to satisfy the Cash
Consideration under this Agreement.
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2A.2
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Upon
Completion, the Parties acknowledge and agree that the Company shall hold
Luckybull and Molong in the group structure (the “Group
Structure”) as shown in the chart set forth
below:
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[Missing Graphic Reference]
-4-
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For
the avoidance of doubt and subject to Clause 2C of this Agreement, the
Purchaser shall, upon Completion, hold up to ninety percent (90%) of the
Company pursuant to Completion of this Agreement.
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2B.
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Undertaking of Vendor
in relation to the Sale Shares
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Subject
to Clause 2C below, the Vendor agrees and undertakes that he shall,
pursuant to the Initial Share Transfer and the successful listing of the
Company on the OTCBB (the “Listing”),
sell to the Purchaser the Sale Shares, upon the fulfilment (or waiver) of
the conditions precedent to this Agreement as set out in Clause 4.1 of
this Agreement and on the terms and subject to the conditions of this
Agreement.
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2C.
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Sale of Shares by
Vendor prior to Completion
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2C.1
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Pursuant
to the Initial Share Transfer and prior to Completion, the Parties
acknowledge and agree that the Vendor shall not dilute his shareholding
interest in the Company to less than fifty one percent (51%) of entire
issued and paid-up capital of the Company and that the definition of “Sale
Shares” in this Agreement shall be construed
accordingly.
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2C.2
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For
the avoidance of doubt, and subject to Clause 2C.1 above, in the event
that the Vendor divests any portion of his shareholding in the Company,
the Parties acknowledge and agree that (a) the Consideration shall be
reduced proportionately, and (b) the difference in the amount payable
shall be deducted from the Cash Consideration
portion.”.
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4.
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CONSIDERATION
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Clause
3 of the Sale and Purchase Agreement shall be amended by deleting it in
its entirety and inserting the following:
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“3.1
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Subject
to Clauses 2C and 8A of the Sale and Purchase Agreement, the Consideration
for the sale and purchase of the Sale Shares shall be the sum of Singapore
Dollars Thirty Million Only (S$30,000,000). For the avoidance of doubt,
and subject to Clause 2C above, in the event that the Vendor disposes of
any portion of his shareholding in the Company, the Cash Consideration (as
hereinafter defined) shall be reduced proportionately.
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3.2
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The
Consideration for the Sale Shares shall be satisfied as
follows:
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3.2.1
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The
sum of S$20,000,000 in cash (the “Cash
Consideration”); and
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3.2.2
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The
remaining Consideration, amounting to S$10,000,000, to be satisfied on
Completion by the allotment and issue by the Purchaser of the
Consideration Shares to the Vendor, all of such Consideration Shares shall
rank pari passu
with the issued shares of the
Purchaser.
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-5-
| 3.3 |
In
respect of the Cash Consideration, the Parties acknowledge and agree as
follows:
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3.3.1
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a
deposit of S$2,500,000 (the “Deposit”)
has been paid by the Purchaser to the Vendor;
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3.3.2
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the
outstanding sum due and payable by the Purchaser to the Vendor in cash is
S$17,500,000 (the “Remaining
Cash
Consideration”).
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3.4
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In
respect of the Remaining Cash Consideration, the Parties acknowledge and
agree as follows:
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(a)
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subject
to Clause 4.1.2D and the Purchaser having raised and drawn down a
sufficient amount of funds from the Bond Subscription to enable the
Purchaser to satisfy the Partial Cash Consideration, the Purchaser will
pay to the Vendor a sum of S$3,000,000 (the “Partial
Cash Consideration”) by no later than 31 March
2008;
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(b)
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for
the avoidance of doubt, payment of the Partial Cash Consideration in
accordance with Clause 3.4(a) above (if such payment occurs) shall be
offset against Remaining Cash Consideration; and
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(c)
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non-payment
of the Partial Cash Consideration in accordance with Clause 3.4(a) above
shall not constitute a breach of this Agreement by the
Purchaser.”.
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5.
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CONDITIONS
PRECEDENT
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5.1
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Clause
4.1.2 of the Sale and Purchase Agreement shall be amended by deleting it
in its entirety and inserting the following:
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“4.1.2
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the
Company being the sole shareholder of Luckybull, and Luckybull being the
sole shareholder of Molong;”.
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5.2
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The
following Clauses 4.12A to 4.1.2G shall be inserted between Clauses
4.1.2 and 4.1.3 in the Sale and Purchase Agreement:
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“4.1.2A
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completion
of the Initial Share Transfer and the Vendor being the legal and valid
owner of the Sale Shares;
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4.1.2B
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the
establishment of the Group Structure;
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4.1.2C
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the
successful listing of the Company on the OTCBB;
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4.1.2D
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completion
of the Placement;
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4.1.2E
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completion
of the Bond Subscription and the Purchaser having raised and drawn down a
sufficient amount of funds from the Bond Subscription to enable the
Purchaser to satisfy the Cash Consideration under this
Agreement;
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4.1.2F
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the
Vendor being the legal and valid owner of such number of ordinary shares
of the Company as shall represent at least 51% of the entire issued and
paid-up share capital of the Company;
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4.1.2G
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the
valid execution and completion of the Share Exchange Agreement,
on such terms and conditions which shall not be materially
inconsistent with the fundamental principles and terms of, and the rights
of the Purchaser under, this Agreement, and which are reasonably
acceptable to the Purchaser;”.
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6.
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COMPLETION
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6.1
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Clause
5.1 of the Sale and Purchase Agreement shall be amended by deleting it in
its entirety and inserting the following
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Subject
to the provisions of Clause 4.1 and notwithstanding that Completion Date
is scheduled to be no later than the Long-Stop Date, the Parties undertake
and agree, on a “best-endeavours” basis,
to ensure that Completion takes place by no later than three (3) months
from the date of this Agreement at the offices of the Purchaser's
Solicitors (or at such other place as the parties may agree in writing)
where all (and not some only) of the events described in Clauses 5.2 and
5.3 shall occur.
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6.2
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Clause
5.2.4 of the Sale and Purchase Agreement shall be amended by deleting it
in its entirety and inserting the following:
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“5.2.4
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such
documentary evidence as shall be necessary to satisfy the Purchaser that
the Company owns the entire issued and paid-up share capital of Luckybull,
and that the Company owns the Molong Shares;”.
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6.3
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Clause
5.2.8 of the Sale and Purchase Agreement shall be amended by deleting it
in its entirety and inserting the following:
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“5.2.8
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where
necessary, all documentation, the form and substance of which are
satisfactory to the Purchaser as the Purchaser may determine in its
absolute discretion, evidencing that the Vendor has fulfilled his
obligations under Clauses 4.1.2A, 4.1.2B, 4.1.2C, 4.1.2D, 4.1.2E, 4.1.2F,
4.1.7, 4.1.8 and 4.1.9; and”.
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6.4
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Clause
5.3 of the Sale and Purchase Agreement shall be amended by deleting it in
its entirety and inserting the following:
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“5.3
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Against
compliance by the Vendor of Clause 5.2, the Purchaser
shall:
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5.3.1
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pay,
by way of telegraphic transfer to the bank account of the Vendor (as
notified by the Vendor to the Purchaser) or a cashier’s order or banker’s
draft issued by a bank licenced in Singapore and made out in favour of the
Vendor, the Remaining Cash Consideration, or if the Partial Cash
Consideration has been paid in accordance with Clause 3.4 of this
Agreement, the sum of S$14,500,000 which is the Remaining Cash
Consideration less the Partial Cash Consideration;
and
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5.3.2
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allot
and issue the Consideration Shares to the Vendor or his
nominee.”.
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7.
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INDEMNITY
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Each
Party (the “Indemnifying
Party”) shall indemnify and keep the other Party (the “Indemnified Party”)
indemnified against all proceedings, costs, expenses, claims, penalties
and liabilities (including legal costs on an indemnity basis) incurred or
suffered by the Indemnified Party arising from or in connection with or as
a result of any breach by the Indemnifying Party of any of its obligations
under the Sale and Purchase Agreement (as amended and supplemented by this
Agreement).
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8.
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INCORPORATION OF
AGREEMENT
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8.1
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This
Agreement shall be construed as one with the Sale and Purchase Agreement.
The phrase “this Agreement” referred to in the Sale and Purchase Agreement
and all other instruments executed thereunder or pursuant thereto shall
for all purposes refer to the Sale and Purchase Agreement incorporating
and as amended or supplemented by this Agreement.
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8.2
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Except
to the extent that it is amended by this Agreement, the Sale and Purchase
Agreement shall remain in full force and effect.
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8.3
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This
Agreement shall take effect from the day and year first above
written.
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9.
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GENERAL
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9.1
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This
Agreement may be executed in any number of counterparts by the Parties
hereto and when the same have been executed by the Parties hereto, this
Agreement shall be binding on the Parties hereto as if they had executed
this Agreement in a single document.
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9.2
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Any term,
condition, stipulation, provision, covenant or undertaking in this
Agreement which is or may become illegal, void, prohibited or
unenforceable in any respect under any law shall be ineffective to the
extent of such illegality, voidness, prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such
illegality, voidness, prohibition or unenforceability shall not invalidate
or render illegal, void or unenforceable any other term, condition,
stipulation, provision, covenant or undertaking herein
contained.
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9.3
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This Agreement shall be binding upon and enure for the benefit of the successors and assigns of the Parties but a Party may not assign or transfer any of its rights or obligations without the prior written consent of the other Party. | |
-8-
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9.4
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A
person who is not a party to this Agreement shall have no right under the
Contracts (Rights of Third Parties) Act Cap. 53B to enforce any of the
terms of this Agreement.
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10.
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GOVERNING LAW AND
JURISDICTION
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10.1
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This
Agreement shall be governed by, and construed in accordance with, the laws
of Singapore.
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10.2
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The
Parties hereby irrevocably submit to the exclusive jurisdiction of the
courts of Singapore and waive any objection to Proceedings in any such
court on the grounds of venue or on the grounds that the Proceedings have
been brought in an inconvenient
forum.
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-9-
IN WITNESS WHEREOF the Parties
have on the day and year above written executed this Agreement.
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SIGNED
BY
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/s/
Tan Xxx Xxxx
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)
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TAN
XXX XXXX
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)
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in
the presence of :-
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)
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SIGNED
BY
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/s/
Ang Eng Chin
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)
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for
and on behalf of
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)
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XXXXX
CORPORATION LIMITED
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)
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in
the presence of :-
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)
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-10-
EXECUTION
COPY
DATED THIS 21ST DAY OF FEBRUARY
2008
BETWEEN
TAN
XXX XXXX
…as the
Vendor
And
XXXXX
CORPORATION LIMITED
…as the
Purchaser
SUPPLEMENTAL
AGREEMENT
to the
Sale and Purchase Agreement relating to the purchase
of shares
representing 100 per cent. of the issued share capital
of
Luckybull Limited dated 22 August 2007
-11-
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TABLE
OF CONTENTS
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No.
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Clause
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Page
No.
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1.
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RECITALS
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1
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2.
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DEFINITIONS
AND INTERPRETATION
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2
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3.
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ESTABLISHMENT
OF GROUP STRUCTURE
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3
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4.
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CONSIDERATION
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5
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5.
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CONDITIONS
PRECEDENT
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6
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6.
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COMPLETION
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7
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7.
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INDEMNITY
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8
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8.
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INCORPORATION
OF AGREEMENT
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8
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9.
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GENERAL
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8
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10.
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GOVERNING
LAW AND JURISDICTION
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9
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-12-
