Exhibit 2.2
DATED THIS 17TH DAY OF SEPTEMBER 2004
BETWEEN
XXXX TWEE YOM (NRIC No.651023-06-5405)
AND
NG SIEW CHOO (NRIC No. 650220-06-5290)
AND
SECURED DIGITAL APPLICATIONS (M) SDN BHD (Co. No. 174661-U)
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GSC SHARE SALE AGREEMENT
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MESSRS XXXXXX XXXXXXXXX
ADVOCATES & SOLICITORS
Xxx 0X, Xxxxx 0 Xxxxx X
Xxxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxxx
00000 Xxxxx Xxxxxx
tel no : 00-00000000
fax no : 00-00000000
(REF: RZ//2/1003)
THIS AGREEMENT is made this 17th day of September , 2004
BETWEEN
XXXX TWEE YOM [NRIC: 651023-06-5405] of Xx. 0, Xxxxx XX00/00, Xxxxx Xxxxx 00000
Petaling Jaya and NG SIEW CHOO [NRIC:650220-06-5290 ] of Xx. 00, Xxxxx XX00/00,
Xxxxx Xxx, 00000 Petaling Jaya , hereinafter referred to as "the Vendors") of
the one part; and
SECURED DIGITAL APPLICATIONS (M) SDN BHD (Company No.174661-U), a company
incorporated in Malaysia and having its registered office at 00X, Xxxxx 0/00,
00000, Xxxxxxxx Xxxx, Xxxxxxxx (hereinafter referred to as "the Purchaser") of
the other part.
WHEREAS
A XXXXXXX SERVICE CENTRE (M) SDN BHD (Company No.497893-T) is a company
incorporated in Malaysia with its registered office at 00-X, Xxxxx 00/00,
Xxxxxxxx Xxxx, Xxxxxxxx Darul Ehsan (hereinafter referred to as "the
Company"). The authorised share capital of the Company is Ringgit Malaysia
One Hundred Thousand (RM100,000.00.) divided into 100,000 ordinary shares
of Ringgit Malaysia One ( RM1.00) each only of which 100,000 ordinary
shares have been issued and credited as fully paid-up ("the GSC Paid Up
Capital").
B. The Company is in the business of providing computer sales and services and
other services in the information technology industry.
X. XXXXXXX IT HOLDINGS SDN BHD (Company No.504264-K) ("GITH") is a company
incorporated in Malaysia with its registered office at 00-X, Xxxxx 00/00,
Xxxxxxxx Xxxx, Xxxxxxxx Darul Ehsan. The authorised share capital of GITH
is Ringgit Malaysia Five Million (RM5,000,000.00) divided into 5,000,000
ordinary shares of Ringgit Malaysia One ( RM1.00) each only of which
1,886,000 ordinary shares have been issued and credited as fully paid-up
("the GITH Paid Up Capital"). The Vendors are the registered owners of the
GITH Paid Up Capital.
D. GITH is in the business of trading and retailing of computers in particular
Apple Computers, computer software and in other related information
technology.
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E. GITH presently has investments in the Related Companies as set out below;
----------------------------- ---------------------------- ------------------------------------
Company Ordinary Percentage of
--------------------------- ordinary shares (%)
shares of
RM1.00 each
----------------------------- ---------------------------- ------------------------------------
GZ 100,000 50%
----------------------------- ---------------------------- ------------------------------------
GITD 500,000 100%
----------------------------- ---------------------------- ------------------------------------
GF 915,000 100%
----------------------------- ---------------------------- ------------------------------------
F. GITH and the Vendors are desirous of raising additional capital to fund the
working capital needs, retail activities and other operations of GITH and
the working capital and other financing needs of the Related Companies.
G. The Purchaser is desirous of investing in GITH, through GSC and pursuant
thereto the LOI was executed between the Vendors and the Purchaser. The LOI
provided inter alia that the investment by the Vendor into GITH would be
structured and will involve the execution of the following agreements; and
i. this Agreement ("xxx XXX Share Sale Agreement"); and
ii. the Subscription Agreement, the Shareholders Agreement and the GITH
Management Agreements.
H. For the purposes of achieving the objectives set out in Recital G above the
Vendors have agreed to sell and the Purchaser has agreed to purchase the
100,000 ordinary shares in the Company owned by the Vendors in the
proportions set out in the table following ("the Said Shares") for the
consideration and upon the terms and conditions hereinafter contained.
--------------------------------------- -------------------------------------- -------------------------------------
Name of shareholder No of ordinary shares in the Company Percentage of GSC Paid Up Capital
to be sold to Vendor
--------------------------------------- -------------------------------------- -------------------------------------
Xxxx Twee Yom 50,000 50%
--------------------------------------- -------------------------------------- -------------------------------------
Ng Siew Choo 50,000 50%
--------------------------------------- -------------------------------------- -------------------------------------
Total 100,000 100%
--------------------------------------- -------------------------------------- -------------------------------------
NOW IT IS HEREBY AGREED as follows -
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement and the Schedules, unless the context otherwise requires,
the following expressions shall have the meanings set out against them:-
"Approval" means the approval referred to in Clause 2.
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"Audited Accounts" means the Audited Accounts of the company for the financial
period ending 31st December 2003 which shall include the relevant balance sheet
and profit and loss accounts for the same financial period.
"Balance Sheet Date" means management accounts of the Company and the Related
Companies which shall include profit and loss statements, balance sheets and
cash flow statements drawn up until 31/08/04.
"Company" means XXXXXXX SERVICE CENTRE (M) SDN BHD (Company No. 497893-T);
"Completion Date" means the completion date set out in Clause 3.
"Directors" means the directors of the Company.
"GF" means Xxxxxxx Focus (M) Sdn Bhd (Company No.: 316966-M) a company
incorporated in Malaysia with an authorised share capital of Ringgit Malaysia
One Million (RM1,000,000) only of which Nine Hundred Fifteen Thousand (915,000)
ordinary shares of par value RM1.00 each only have been issued and are fully
paid-up;
"GITD" means Xxxxxxx IT Distribution (M) Sdn Bhd (Company No.: 480471-V) a
company incorporated in Malaysia with an authorised share capital of Ringgit
Malaysia Five Hundred Thousand (RM500,000) only of which Five Hundred Thousand
(500,000) ordinary shares of par value RM1.00 each only have been issued and are
fully paid-up;
"GITH Management Agreements" means the;
(i) agreement between the Vendors and the GITH to regulate the provision
of management services, particularly in relation to sales and
operations, by the Vendors to GITH and the Related Companies,
(ii) agreement between the Purchaser and GITH to regulate the provision of
management services, particularly in relation to finance and
administration services by the Purchaser to GITH and the Related
Companies,
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"GZ" means Xxxxxxx Zone (M) Sdn Bhd (Company No.: 498849-X), a company
incorporated in Malaysia with an authorized capital of RM500,000 of which
200,000 ordinary shares of par value RM1.00 each only have been issued and fully
paid up ("the GZ Issued Shares");
"Management Accounts" means the Management Accounts of the Company as at
31/08/04 which shall include the relevant balance sheet , profit and loss
accounts and cash flow statements from the date of the Audited Account up until
the Balance Sheet Date.
"Memorandum and Articles of Association" means the Memorandum and Articles of
Association of the Company.
"the Parties" or "the Party" means the Purchaser and the Vendors and such one of
them as the case may be.
"the Purchaser s Accountants" means Messrs Xxxxxxx, XX
"the Purchaser's Solicitors" means Messrs. Xxxxxx Xxxxxxxxx, Xxx 0-X, Xxxxx 0,
Xxxxx X, Xxxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxxx, 00000 Xxxxx Xxxxxx.
"Related Companies" means the companies in which the Company is a shareholder
and includes GF, GITD and GZ;
"Ringgit" and the sign "RM" means the lawful currency of Malaysia.
"Shareholders Agreement" means the agreement between the Company and the Vendors
to regulate their agreement as members of GITH to be executed simultaneously
with the execution of this Agreement;
"Subscription Agreement" means the Subscription Agreement executed on even date
between the Purchaser, the Vendors, the Company and GITH to govern the terms of
the subscription by the Company for the ordinary shares and the redeemable
convertible preference shares in GITH:
" Said Shares" means One Hundred Thousand (100,000) ordinary shares of Ringgit
Malaysia One (RM1.00) each only in the Company to be purchased by the Purchaser
under this Agreement.
"Working Day" means a day other than a Saturday or a gazetted public holiday.
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1.2 Any reference to "Completion" shall mean completion of the sale and
purchase of the said Shares in accordance with Clause 5.
1.3 Any reference to "Shares" means the Ordinary Shares of the Company and
"a Share" means any of the shares.
1.4 Any reference to "Taxation" shall comprise all forms of taxation
whether of Malaysia or elsewhere in the world, past, present and
future (including, without limitation, income tax, capital gains tax,
stamp duty, customs and other import or export duties) and all other
statutory, governmental or state impositions, duties and levies and
all penalties, charges, costs and interest relating to any claim (and
for this purpose the expression "claim" shall include any notice,
demand, assessment, letter or other document issued or action taken by
the inland revenue or other statutory or governmental authority, body
or official whosoever (whether of Malaysia or elsewhere in the world)
whereby the Company is or may be placed or sought to be placed under a
liability to make a payment or deprived of any relief, allowance,
credit or repayment otherwise available).
1.5 Any reference to "transaction" shall include any transaction, act,
event or omission of whatever nature and references to any transaction
effected on or before completion shall include the combined result of
two or more transactions, the first of which shall have taken place
(or be deemed to have taken place) or the commencement of which shall
have occurred (or be deemed to have occurred) on or before completion.
1.6 Any reference to "Purchaser" shall mean either the Purchaser or such
other person(s) as such Purchaser may nominate to perform its
obligations under this Agreement and upon such nomination, such
person(s) shall, for each and every purpose under this Agreement, be
deemed to be the Purchaser.
1.7 References to Clauses, Recitals, Appendices and Schedules are to
clauses, recitals, appendices and schedules to this Agreement.
1.8 The headings are for convenience only and shall not affect the
interpretation hereof.
2. CONDITIONS PRECEDENT
2.1 Notwithstanding anything herein contained to the contrary, this Agreement
shall be conditional upon the execution of the following agreements on or
before 20th September 2004 unless otherwise extended by the parties
hereto:-
2.1.1. The execution of the Subscription Agreement ;
2.1.2 The execution of the Shareholders Agreement; and
2.1.3 The execution of the GITH Management Agreements.
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2.2 The Purchaser being satisfied with the results of the Purchaser's
Accountants investigations into the financial, contractual, tax and trading
position and prospects of the Company and with the results of the due
diligence exercise on the Company, GITH and the Related Companies pursuant
to the Subscription Agreement.
2.3 Such other consents or approvals (if any) as may be necessary from any
third party, governmental or regulatory body or relevant competent
authority having jurisdiction over the transactions contemplated under this
Agreement including the execution of and the completion of this Agreement.
2.4. Notwithstanding the conditions precedent set out above, the Purchaser may
at their sole and absolute discretion waive the fulfillment of any one or
more of the same.
2.5 The date falling on the day on which the last of the aforesaid Approvals
have been achieved and fulfilled shall be the Unconditional Date for this
Agreement.
3. COMPLETION DATE
The Completion Date shall occur on or before the seventh (7th) day from the
Unconditional Date.
4. PURCHASE PRICE
4.1.1 Subject to the provisions of this Agreement, the Vendors agree to
sell and the Purchaser to purchase the Said Shares free from all
charges, liens, pledges, trust and other encumbrances and with the
rights, benefits and entitlements now or hereafter attaching thereto
for a purchase consideration of Ringgit Malaysia One Hundred Thousand
(RM100,000.00) ("the Purchase Price") payable in one bullet payment
on the Completion Date.
5. COMPLETION
5.1 Subject to the fulfillment of the Approvals contained in Clause 2,
completion of the sale and purchase of the Said Shares shall take place at
the office of the Purchaser's Solicitors on the Completion Date.
5.2 On the Completion Date, the Vendors shall deliver to the Purchaser or the
Purchaser's Solicitors the following:-
5.2.1 the share certificates in respect of the Said Shares;
5.2.2 the valid and registrable Memoranda of Transfer in Form 32A duly
executed by them in favour of the Purchaser in respect of the said
Shares (hereinafter referred to as the "Transfer Forms").
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5.2.3 such other documents as may be required to give good title of the
Said Shares to the Purchaser and to enable the Purchaser or its
nominees to be the registered proprietor of the said Shares
5.2.4 a certified extract of the resolutions of the Directors:-
(a) approving the transfer and registration of the Said Shares in
favour of the Purchaser;
(b) appointing the nominees of the Purchaser as Directors; and
(c) amending the mandates given by the Company to its bankers as the
Purchaser may direct (together with all such forms necessary to
amend the mandates duly executed);
5.2.5 letters of resignation of all Directors in the Company in such form
as may be prescribed by the Purchaser with effect from the Completion
Date without payment, compensation, damages or any other sum for loss
of office, which said resignations shall be duly accepted;
5.2.6 letters of resignation of the secretary and auditors of the Company
from their respective office, with written acknowledgment from each
of them executed as a deed in such form as the Purchaser may
prescribe that he has no claim against the Company in respect of
breach of contract, compensation for loss of office or on any other
grounds whatsoever;
5.2.7 the Company's common seal, its certificate of incorporation and all
available copies of its Memorandum and Articles of Association;
5.2.8 copies of all licenses, documents, schedules, records, notices,
certificates and all other documents whatsoever in respect of
carrying on the business of the Company.
5.3 On the Completion Date, the Purchaser shall pay the sum of Ringgit Malaysia
One Hundred Thousand (RM100,000.00) to the Vendors by way of bank draft or
cashiers order in exchange for all the documents referred to in Item 5.2.
5.4 If any of the documents required to be delivered by the Vendors to the
Purchaser on the Completion Date , are not forthcoming for any reason or if
in any other respect the foregoing provisions of this Clause are not fully
complied with the Parties shall fix a new day, being a day not later than
seven (7) days from the Completion Date, for completion. In the event that
the Vendors shall still be unable to deliver such documents or comply fully
with the provisions of this Clause on the new day fixed for completion, the
Purchaser shall be entitled (in addition to and without prejudice to all
other rights or remedies available to it) to elect to rescind this
Agreement or to effect completion so far as practicable having regard to
the defaults which have occurred. In the event of rescission, all monies
paid by the Purchaser shall be returned forthwith.
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6. BASIS OF SALE
Notwithstanding any provision to the contrary contained herein, the sale
and purchase of the said Shares shall be on the basis that on the
Completion Date, the Company, GITH and the Related Companies shall have no
liabilities whatsoever except those disclosed in the Audited Account or
Management Accounts.
7. MANAGEMENT AND OPERATION OF THE COMPANY
7.1 After the Completion Date, the Board of Directors of the Company shall
comprise solely of nominees of the Purchaser and the management and
operation of the Company shall vest solely with the Purchaser.
8. VENDOR'S WARRANTIES
8.1 The Vendors acknowledge that the Purchaser has entered into this Agreement
in full reliance of the representations made by the Vendors in respect of
the Company as set out in this Agreement and in Schedule 1 hereto.
8.2 The Vendors hereby warrant and undertake to and with the Purchaser and
their respective successors-in-title as follows:-
8.2.1 the recitals and the Schedules as annexed hereto are true and correct
in all material respects;
8.2.2 the Vendors are the registered owner of the Said Shares and the Said
Shares are free and clear of any pledges, liens, claims, charges,
trust or other encumbrances and that the Said Shares shall be
transferred to the Purchaser together with all rights, benefits and
entitlements attached thereto;
8.2.3 that there is no arrangement, agreement, option or any right made,
granted or issued by the Company which calls for the issue or accord
to any person the right to call for the issue of any shares,
debentures or securities of any kind of the Company;
8.2.4 the Vendors have full legal right, power and authority to execute,
deliver and perform their respective obligations under this Agreement
and all such other agreement, deeds, documents and instruments as are
specified or referred to in this Agreement;
8.2.5 there is no provision of the Company's Memorandum and Articles of
Association and no provision of any existing contract, agreement or
instrument binding on the Company or the Vendors which has been or
would be contravened by the execution and delivery of this Agreement
and such other agreements, deeds, documents and instruments as are
specified or referred to in this Agreement or by the performance or
observance by the Company or the Vendors of any of the terms hereof
or thereof;
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8.2.6 all consents, approvals, licences and authorizations of, and all
filings and registrations with, any governmental or statutory agency
or authority necessary for the due execution and delivery of this
Agreement will, as far as the same are required to be done or
performed by the Vendors, by the Completion Date, be obtained, and
all consents, approval, licences, authorizations, filings and
registrations necessary for the performance or enforceability hereof
and for the performance by the Vendors and the Company of their
respective obligations under this Agreement will, by the Completion
Date, be obtained and will be in full force and effect as at
Completion Date;
8.2.7 that neither the Company nor its shareholders or directors have
committed and/or is in breach of any of the law or the laws of
Malaysia in relation to the affairs of the Company and having an
adverse material effect on the affairs of the Company;
8.2.8 that there are no other classes of shares in the capital of the
Company except ordinary shares which rank pari passu among
themselves;
8.2.9 that the Vendors are or will be the only shareholders for the time
being of the Company at the Completion Date;
8.3 The Vendors hereby undertake to indemnify and keep indemnified the
Purchaser and their successors-in-title against all or any losses, damages,
claims, demands arising out of a breach or breaches of the warranties,
undertakings and covenants given in this Agreement and Schedule 1 or
misrepresentations in any material respect under the terms of this
Agreement and Schedule 1 or for any breach of any term and-condition hereof
and against all debts and liabilities incurred by the Company which are not
disclosed in the Audited and/or Management Accounts and which become
payable by the Company including any costs lawfully due in connection
therewith.
8.4 The said undertaking and indemnity in Clause 8.3 shall be separate and
independent and shall not be limited by any of the provisions contained in
this Agreement.
8.5 If prior to the Completion Date it shall be found that any of the
warranties or undertakings contained under this Agreement and in Schedule 1
are untrue or incorrect in any material respect the Purchaser shall be
entitled by notice in writing to the Vendors to rescind this Agreement and
the agreements set out in Recital G (but without prejudice to any other
rights to which the Purchaser may be entitled at law) but failure to
exercise this right shall not constitute a waiver of any other rights of
the Purchaser or their respective successors-in-title arising out of any
breach of warranty or undertaking. Rescission of this Agreement under this
Clause 8.5 shall not extinguish any right to damages to which the Purchaser
or its successors in title may be entitled in respect of the breach of this
Agreement.
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8.6 Each of the representations, warranties, undertakings contained in this
Agreement and in Schedule 1 shall be separate and independent. The rights
and remedies of the Purchaser in respect of a breach or breaches of the
warranties or undertakings shall not be effected or determined by the
completion of the sale and purchase of the said Shares hereunder or by the
Purchaser rescinding or failing to rescind this Agreement or by any other
event or matter whatsoever, except a specific and duly authorised written
waiver or release by the Purchaser, and no single or partial exercise or
any right or remedy shall preclude any further or other exercise.
8.7 The rights and remedies of the Purchaser in respect of a breach or breaches
of the warranties and undertakings shall not be affected or determined by
any investigation made by or on behalf of the Purchaser into the affairs of
the Company.
8.8 The Vendors hereby represent, warrant to and undertake with the Purchaser
and its successors-in-title that each of the representations, warranties
and undertakings contained in this Agreement and Schedule 1 will be true
and accurate in all material respects on Completion Date. as though the
same were made on Completion Date.
9. DEFAULT BY VENDOR
Without prejudice to any provision herein contained, in the event that the
Vendors shall commit any breach of this Agreement and/or that any of the
representations, warranties or covenants of the Vendors contained in this
Agreement or Schedule 1 shall be false or incorrect or misrepresented, the
Purchaser shall be entitled to terminate this Agreement and the Agreements
set out in Recital G above and the Purchaser shall be entitled to agreed
damages of RM30,000.00 only and upon the payment of the same by the
Vendors, the Purchaser shall have no further claims against the Vendor. In
the alternative, the Purchaser may elect for specific performance of this
Agreement.
10. DEFAULT BY PURCHASER
Without prejudice to any provision herein contained, in the event that the
Purchaser shall commit any breach of this Agreement and/or that any of the
representations, warranties or covenants of the Purchaser contained in this
Agreement are untrue, the Vendors shall be entitled to terminate this
Agreement and the Vendors shall be entitled to agreed damages of
RM30,000.00 only and upon the payment of the same by the Purchaser, Vendors
shall thereafter have no further claims against the Purchaser.
11 ACCESS TO COMPANY TO CARRY OUT DUE DILIGENCE EXERCISE
11.1 The Vendors hereby covenant with the Purchaser to exercise the Vendors
powers for the time being in the Company to procure that the Company
will, at the request of the Purchaser and at any time and from time to
time before the Completion Date, give to any authorised
representative(s) of the Purchaser, the Purchaser's Solicitors and the
Purchaser's Accountants all assistance and facilities for inspecting
the share registers, accounts, books and records and all other
documents of the Company ("the Company's Documents") and to allow such
authorised representative(s) of the Purchaser, the
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Purchaser's Solicitors or the Purchaser's Accountants to make copies
of the same (hereinafter referred to as "the said Inspection"'). For
the purpose of the said Inspection the Company's Documents, the
authorised representative(s) of the Purchaser shall be granted full
and unrestricted access to the premises of the Company or such other
premises where the Company's Documents may be found.
11.2 In the event of the Purchaser discovering any breach of warranty or
material discrepancy(ies) in the accounts of the Company pursuant to
the said Inspection, the Purchaser shall notify the Vendors in writing
itemising the breach or discrepancies. The Vendors shall within seven
(7) days of receipt of the notice meet with the Purchaser to resolve
the breach or discrepancy (ies). In the event that either the breach
and/or the discrepancy(ies) cannot be resolved, then the Purchaser
shall be entitled to terminate this Agreement whereby the Vendor shall
refund to the Purchaser within seven (7) days all monies paid to the
Vendor together with all interest accrued. For purposes of this clause
only, a material discrepancy shall mean any discrepancy that is in
excess of Ringgit Malaysia Ten Thousand (RM10,000.00).
12. RELEASE AND INDULGENCE BY THE PARTIES
Any liability to any of the Parties hereunder may in whole or in part be
released, compounded or compromised by time or indulgence given by the
other Parties in their absolute discretion without in any way prejudicing
or affecting their rights against that party.
13. SECRECY
13.1 The Parties hereto hereby undertake that they shall keep strictly secret
and confidential all information of a proprietary nature relating to the
operations of the Company.
13.2 Each of the Parties hereto covenants with the other Party to maintain
strict confidence and secrecy of all information of a proprietary nature it
shall receive directly or otherwise, pursuant to this Agreement save and
except such disclosure as are required to be made pursuant to the laws of
Malaysia.
14. NOTICES
14.1 Subject as otherwise provided in this Agreement, all notices, demands or
other communications required or permitted to be given or made hereunder
shall be in writing and delivered personally or sent by prepaid registered
post or by facsimile message addressed to the intended recipient thereof at
its address or its facsimile number set out below (or to such other address
or facsimile number as any party may from time to time notify the others
for the purpose of this Clause).
14.2 Any notice, demand or communication shall be deemed to have been duly
served:-
14.2.1 If delivered personally, on the day of delivery ;
14.2.2 If sent by facsimile on the day of the conclusion of transmission;
and
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14.2.3 If sent by letter, 5 days after posting and in proving the same it
shall be sufficient to show that the envelope containing the notice,
demand or communication was duly addressed, stamped and posted.
14.3 The initial addresses and facsimile numbers of the Parties for the purposes
of this Agreement are:
14.3.1 The Purchaser:
00X, Xxxxx 0/00, 00000, Xxxxxxxx Xxxx, Xxxxxxxx.
14.3.1 The Vendors:
Xxxx Twee Yom :
Correspondence Address: 7, Xxxxx XX00/00, Xxxxx
Xxxxx 00000, Xxxxxxxx Xxxx, Xxxxxxxx
Residence Address: E-1628,
Xx Xxxx, Xxxxx Xxxxx, 00000 Xxxxxxx, Xxxxxx
Ng Siew Choo:
Correspondence Address: 31, Xxxxx 00/00, Xxxxx XXX,
00000 Xxxxxxxx Xxxx, Xxxxxxxx
Residence Address: B-1944, Xxxxx
Xxxxxxx, 00000 Xxxxxxx, Xxxxxx.
15. NO ASSIGNMENT
15.1 None of the Parties hereto shall transfer or assign all or any of its
rights obligations or benefits hereunder to any third party except to its
successors-in-title, PROVIDED that such successors-in-title shall first
have agreed in writing to assume the obligations of its predecessor under
this Agreement and be bound by this Agreement in place of its predecessor.
15.2. Notwithstanding the provisions of Clause 16.1, the Parties hereto agree
with each other that the Purchaser shall be entitled to nominate a nominee
or nominees to perform all or any of the Purchaser's obligations under this
Agreement and upon such nomination, such nominee or nominees shall, for
each and every purpose under this Agreement, be deemed to be the relevant
Purchaser or Purchaser (as the case may be)
16. COSTS
Each of the Parties hereto shall bear its own legal and other costs and
expenses in connection with this Agreement and the sale and purchase of the
said Shares provided that the Purchaser shall pay the stamp duty payable
upon the transfer of the said Shares.
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17. ENTIRE AGREEMENT & MODIFICATION
17.1 This Agreement herein embodies all the terms conditions agreed upon amongst
the Parties hereto as to the subject matter of this Agreement and
supersedes and cancels in all respects all previous agreement and
undertaking, amongst Parties hereto with respect to the subject matter
hereof whether such be written or oral.
17.2 This Agreement shall not be altered, changed, supplemented, or amended
except by written instrument signed by the Parties hereto.
18. SCHEDULES
The Recitals and Schedules to this Agreement and the provision contained
therein shall have the same force and effect as if set out in the body of
this Agreement.
19. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Malaysia and the Parties agree to subject to the exclusive
jurisdiction of the Court in Malaysia.
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IN WITNESS WHEREOF the Parties hereto have hereunto set their hands and
seal the day and year first above written.
SIGNED by the Vendor, XXXX TWEE YOM )
[NRIC NO:651023-06-5405] ) /s/ Xxxx Twee Yom
in the presence of: )
Xxxx Zechariah
Advocate & Solicitor
Kuala Lumpur
SIGNED by the Vendor NG SIEW CHOO )
[NRIC NO. 650220-06-5290] ) /s/ Ng Siew Choo
in the presence of: )
Xxxx Zechariah
Advocate & Solicitor
Kuala Lumpur
SIGNED BY LIM SOON XXXX )
For and on behalf SECURED DIGITAL ) /s/ Lim Soon Xxxx
APPLICATIONS (M) DN BHD )
(Company No.174661-U )
in the presence of: )
Xxxx Zechariah
Advocate & Solicitor
Kuala Lumpur
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SCHEDULE 1
1. INFORMATION
The Recitals are true and all information which has been given by any of
the directors or any of the official or professional advisers of the
Company or any of the Vendors to any of the Purchaser or any of the
professional advisers of the Purchaser in the course of the negotiations
leading to this Agreement was when given true, complete and accurate in all
material respects and after making due and careful enquiries the Vendors
are not aware of any fact or matter not disclosed in writing to the
Purchaser which renders any such information untrue, inaccurate or
misleading or the disclosure of which might reasonably affect the
willingness of the Purchaser to purchase the Said Shares on the price at or
terms upon which the Purchaser would be willing to purchase them.
2. COPIES OF ACCOUNTS, MEMORANDUM AND ARTICLES, ETC
The copies of the Audited Accounts and the Management Accounts, the
Memorandum and Articles of Association of the Company and documents
evidencing the Company's title to the Property delivered to the Purchaser
are true copies and in the case of the Memorandum and Articles of
Association have attached thereto copies of all such resolutions and
agreements as are required by law to be delivered to the Registrar of
Companies for registration.
3. ACCOUNTS
3.1 The Audited Accounts have been prepared in accordance with the law and on a
consistent basis in accordance with accounting principles, standards and
practice generally accepted at the date hereof in Malaysia so as to give a
true and fair view of the state of the affairs of the Company at the
Balance Sheet Date and of the profits and losses for the period concerned
and as at that date make:
(a) full provision for all actual liabilities;
(b) proper provision (or note in accordance with good accountancy practice) for
all contingent liabilities; and
(c) provisions reasonably regarded as adequate for all bad and doubtful debts.
3.2 Full provision or reserve has been made in the Audited Accounts for all
taxation liable to be assessed on the Company or for which it is or may
become accountable in respect of:
(a) profits, gains or income (as computed for taxation purposes) arising or
accruing or deemed to arise or accrue on or before the Balance Sheet Date;
(b) any transactions effected or deemed to be effected on or before the Balance
Sheet Date or provided for in the Audited Accounts; and
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(c) distributions made or deemed to be made on or before the Balance Sheet Date
or provided for in the Audited Accounts.
3.3 Proper provision or reserve for deferred taxation in accordance with
accounting principles and standards generally accepted at the date hereof
in Malaysia has been made in the Audited Accounts.
4. CHANGES SINCE BALANCE SHEET DATE
Since the Balance Sheet Date as regards the Company:-
(a) it has not disposed of any assets or assumed or incurred any material
liabilities (including contingent liabilities) otherwise than in the
ordinary course of carrying on its business;
(b) no dividend or other distribution has been declared, made or paid to its
members except as provided for in the relevant balance sheet;
(c) it has not borrowed any money other than as disclosed in the Audited
Accounts; and
(d) the Vendors after making due and careful enquiries have not learnt of any
circumstances making bad or doubtful any of its book debts.
5. LITIGATION
5.1 The Company is not at present engaged whether as plaintiff or defendant or
otherwise in any legal action, proceeding or arbitration (other than as
plaintiff in the collection of debts arising in the ordinary course of its
business) or being prosecuted for any criminal offence.
5.2 There are no circumstances known to the Vendors after making due and
careful enquiries likely to lead to any such claim or legal action
proceeding or arbitration (other than as aforesaid) or prosecution.
6. TAXATION
To the best of the knowledge, information and belief of the Vendors after
making due and careful enquiries there is no liability to taxation in
respect of which a claim could be made and there are no circumstances
likely to give rise to such a liability.
7. CONTRIBUTIONS
7.1 All deductions and payments required to be made by the Company in respect
of contributions (including employer's contributions) to any relevant
competent authority have been so made.
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7.2 Proper records have been maintained in respect of all such deductions and
payments and all regulations applicable thereto have been complied with.
8. TAX RETURNS
The Company has duly made all returns and given or delivered all notices,
account and information which on or before the date hereof ought to have
been made, given or delivered for the purposes of taxation and all such
returns, notices, accounts and information (and all other information
supplied to the Inland Revenue Board or the Customs and Excise or other
fiscal authority concerned for any such purpose) have been correct and made
on a proper basis and none of such returns, notices, accounts or
information is disputed in any material respect by the fiscal authority
concerned and there is no fact known to the Vendors after making due and
careful enquiries which might be the occasion of any such dispute or of any
claim for taxation in respect of any financial period down to and including
the Balance Sheet Date not provided for in the Audited Accounts.
9. EMPLOYEES
9.1 Save as disclosed in writing to the Purchasers there are not in existence
any contracts of service with Directors or employees of the Company, nor
any consultancy or management agreements with the Company.
9.2 Save as disclosed in writing to the Purchasers the Company does not have in
existence and is not proposing to introduce any share incentive scheme,
share option scheme or profit sharing scheme for all or any part of its
Directors or employees.
10. DEBTS TO, CONTRACTS WITH CONNECTED PERSONS
There are:
(a) no loans made by the Company to any of the Vendors and/or any
Directors;
(b) no debts owing to the Company by the Vendors and/or any Directors;
(c) no debts owing by the Company;
(d) no securities for any such loans or debts as aforesaid; and
(e) no existing contracts or engagements to which the Company is a party
and in which any of the Vendors and/or any Director is interested.
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11. CAPITAL COMMITMENTS, UNUSUAL CONTRACTS, GUARANTEES
The Company:
(a) does not have any material capital commitments and will not pending
completion undertake any material capital commitments without the
written consent of the Purchaser;
(b) is not a party to any contract entered into otherwise than in the
ordinary and usual course of business or any contract of an onerous or
long-term nature;
(c) has not delegated any powers under a power of attorney which remains
in effect;
(d) has not by reason of any default by it in any of its obligations
become bound or liable to be called upon to repay prematurely any loan
capital or borrowed moneys;
(e) is not a party to any agreement which is or may become terminable as a
result of the Vendors' entry into or completion of this Agreement; or
(f) has not entered into or is not bound by any guarantee or indemnity
under which any liability or contingent liability is understanding.
12. BOOK DEBTS
None of the book debts which are included in the Audited Accounts or which
have subsequently arisen have been outstanding for more than three (3)
months from their due dates for payment and all such debts have realised or
will realise in the normal course of collection their full value as
included I the Audited Accounts or in the books of the Company after taking
into account the provision for bad and doubtful debts made in the Audited
Accounts.
13. ASSETS
Save for the assets as listed in Schedule 2 as annexed hereto, the Company
has no other assets.
14. OTHER AGREEMENTS
The Company is not a party to any lease, tenancy, licence, concession or
agreement of whatsoever nature.
15. STATUTORY AND OTHER REQUIREMENTS, CONSENTS AND LICENCES
All statutory and other requirements applicable to the carrying on of the
business of the Company as now carried on, and all conditions applicable to
any licences and consents
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involved in the carrying on of such business, have been complied with and
the Vendors are not aware of any breach thereof or of any intended or
contemplated refusal or revocation of any such licence or consent.
16. BOOKS AND RECORDS
The records, statutory books and books of account of the Company are duly
entered upon and maintained in accordance with all legal requirements
applicable thereto and contain true, full and accurate records of all
matters required to be dealt with therein and all such books and all
records and documents (including documents of title) which are its property
are in its possession or under its control and all accounts, documents and
returns required to be delivered or made to the Registrar of Companies have
been duly and correctly delivered or made.
17. SUBSIDIARIES AND ASSOCIATED COMPANIES
The Company has no other subsidiaries and related companies (as defined in
the Companies Act, 1965 (Act 125) other than as disclosed.
18. POSITION FROM DATE OF AGREEMENT TO COMPLETION
The Vendors shall ensure that the Company will not prior to Completion Date
without the prior consent of the Purchaser:-
(a) create extend grant or issue or agree to create extend grant or issue
any mortgages charges debentures or other securities;
(b) create or issue or agree to create or issue any share or loan capital
or give or agree to give any option in respect of any share or loan
capital;
(c) enter into any long term or abnormal contract or capital commitment;
(d) do or suffer anything otherwise than in the ordinary course of its
present day to day business whereby its financial position shall be
rendered less favourable than at the Balance Sheet Date in relation to
the Management Accounts;
(e) pass any resolution by its members in general meeting or make any
alteration to the provisions of its Memorandum of Association;
(f) in any way depart from the ordinary course of its day to day business
either as regards the nature scope or manner of conducting the same;
(g) pay or agree to pay to its Directors or officers or any of them any
remuneration or other emoluments or benefits whatsoever other than
those which have been disclosed to the Purchaser;
(h) acquire any assets on hire purchase or deferred terms;
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(i) dispose of any material part of its fixed assets;
(j) grant any tenancy or lease of the Property or any part thereof;
(k) permit any liens to arise on any of its assets other than liens
arising by statute or by operation of law in the ordinary course of
business; and
(l) knowingly permit any of its normal insurance policy to lapse or do
anything to make any policy of insurance void or voidable.
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SCHEDULE 2
ASSETS
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