DATED 13 April 2011
AEHR TEST SYSTEMS
as Vendor
-and-
IPCO INTERNATIONAL LIMITED
as Purchaser
____________________________________________
SALE AND PURCHASE AGREEMENT
____________________________________________
THIS AGREEMENT is made on 13 April 2011 BETWEEN:-
(1) AEHR TEST SYSTEMS, a public company incorporated in California
and having its business address at 000 Xxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America ("Vendor"); and
(2) IPCO INTERNATIONAL LIMITED (Company Registration Number:
199202747M), a public company incorporated in Singapore and having
its registered address at 00 Xxxxxx Xxxx, Xxxxxxxxx 000000
("Purchaser").
(collectively, the "Parties", and individually a "Party").
WHEREAS:-
(A) ESA ELECTRONICS PTE LTD (Company Registration Number:
199201933H) is a company incorporated in Singapore with its
registered office at 00 Xxxxxxx Xxxxx, #00-00/00, Xxxxxxxxx 000000
("Company").
(B) The Vendor is the legal and beneficial owner, free from all
Encumbrances (defined below), of the Sale Shares (defined below).
(C) The Vendor desires to sell, and the Purchaser desires to purchase, the
Sale Shares for the consideration stated, and upon the terms and
subject to the conditions contained, in this Agreement.
(D) To fully satisfy the Purchase Price (defined below), the Purchaser
proposes to raise capital by way of a private placement exercise via the
issue for cash of new shares in the capital of the Purchaser which shall be
listed and quoted on the SGX-ST (defined below) and the net proceeds of
such Private Placement Exercise shall be at least S$1,400,000 ("Private
Placement Exercise"). The Purchaser shall make payment of the
Purchase Price fully from the net proceeds of the Private Placement
Exercise.
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS
In this Agreement, unless there is something in the subject or context
inconsistent therewith:-
(i) the following expressions shall have the following meanings,
namely:-
"Completion Date" the date falling ten (10) Market
Days after the satisfaction of the
Condition (or such other date as
may be agreed in writing by the
Parties);
"Condition" the Condition referred to in Clause
2(A) below;
"Dollars" and "S$" the lawful currency of Singapore;
"Encumbrance" mortgage, assignment of
receivables, debenture, lien,
charge, pledge, adverse claim,
rent-charge, title retention
document, claim, option, pre-emption
rights, right to acquire, security
arrangement, security interest and any
other encumbrance whatsoever;
"Long-Stop Date" the date falling three (3) months after
the date of this Agreement;
"Market Day" a day on which SGX-ST is open for
securities trading;
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"Private Placement the Private Placement Exercise
Exercise" referred to in Recital (D) above;
"Purchase Price" the Purchase Price referred to in
Clause 4(A) below;
"Sale Shares" 150,000 issued and fully paid-up
ordinary shares in the capital of the
Company to be purchased by the
Purchaser from the Vendor
pursuant to this Agreement, being
12.5% of the issued and paid-up
share capital of the Company as at
the date of this Agreement;
"SGX-ST" The Singapore Exchange Securities
Trading Limited;
(ii) any reference to "Completion" shall mean completion of the sale and
purchase of the Sale Shares under this Agreement;
(iii) references to Recitals and Clauses are to recitals and clauses of this
Agreement; and
(iv) the headings in this Agreement are for convenience only and shall
not affect the construction of any provision in this Agreement.
2. CONDITIONAL AGREEMENT
(A) Completion of this Agreement is conditional upon the successful
completion of the Private Placement Exercise and the Purchaser having
received net proceeds of at least S$1,400,000 from the Private
Placement Exercise (the "Condition").
(B) If the Condition is not fulfilled on or before the Long-Stop Date, this
Agreement shall ipso facto cease and all rights and liabilities of the
Parties hereunder shall cease and no Party shall have any claim against
any other Party save in respect of any antecedent breach of this
Agreement.
3. AGREEMENT TO SELL AND PURCHASE SHARES
Subject to the terms and conditions of this Agreement, the Vendor shall
sell the Sale Shares and the Purchaser shall purchase the Sale Shares,
free from all Encumbrances and with all rights now and hereafter
attaching thereto on a willing buyer and willing seller basis.
4. CONSIDERATION AND PAYMENT
(A) Subject to the terms of this Agreement, the aggregate consideration for
the purchase of all of the Sale Shares, arrived at on a willing seller
willing buyer basis, shall be the cash sum of S$1,700,000 ("Purchase
Price").
(B) The Purchaser shall pay the Purchase Price to the Vendor on the
Completion Date.
5. COMPLETION
(A) Subject as hereinafter provided, Completion shall take place at such
place as the Vendor and the Purchaser may agree in writing on the
Completion Date.
(B) On Completion, the Vendor shall deliver to the Purchaser duly executed
sharetransfer(s) infavour of the Purchaser (or as it may direct)
accompanied by the relevant share certificate(s) in respect of the Sale
Shares.
(C) The Purchaser shall, against compliance with the provision of Clause
5(B), pay the Purchase Price to the Vendor.
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6. WARRANTIES
(A) The Vendor hereby warrants and undertakes to and with the Purchaser
and its successors in title and assigns (with the intent that the
provisions of this Clause shall continue to have full force and effect
notwithstanding Completion) that:-
(i) The Vendor is a company duly established and validly existing
under the laws of California;
(ii) All action, conditions and things required to be taken, fulfilled and
done (including the obtaining of any necessary consents and
authorizations) for the Vendor's entry into and performance of this
Agreement have been taken, fulfilled and done;
(iii) The obligations of the Vendor under this Agreement are legal, valid,
binding and enforceable in accordance with their respective terms;
(iv) The Vendor is the legal and beneficial owner of the Sale Shares.
The Vendor is and will on Completion be legally and beneficially
entitled to transfer the Sale Shares to the Purchaser free from all
and any Encumbrances whatsoever;
(v) The execution, delivery and performance by the Vendor of this
Agreement and the Completion of this Agreement do not and will
not violate any law to which the Vendor is subject or any of the
documents or agreement which the Vendor is party to.
(vi) The Vendor is not in default under any instrument or contract
binding on the Vendor or any of the Vendor's assets which might
have a material adverse effect on the Vendor's obligations under
this Agreement or under the relevant document;
(vii) There are no proceedings or claims pending or threatened before
any court or tribunal, arbitral or other authority which in any case
might have a material adverse effect on the Vendor's business,
assets or condition or the Vendor's ability to perform the Vendor's
obligations under this Agreement.
The said warranties and undertakings shall be separate and independent
and shall not be limited by anything in this Agreement.
(B) The warranties and undertakings given hereunder or pursuant hereto
shall not in any respect be extinguished or affected by Completion and
the benefits thereof may be assigned in whole or in part by the
Purchaser.
7. TIME OF ESSENCE
Any time, date or period mentioned in any provision of this Agreement
may be extended by mutual agreement between the Vendor and the
Purchaser but as regards any time, date or period originally fixed and
not extended or any time, date or period so extended as aforesaid, time
shall be of the essence.
8. UNDERTAKING
The Vendor hereby undertakes that the Vendor shall from time to time on
request by the Purchaser promptly do or procure the doing of all such
acts and/or promptly execute or procure the execution of all such
documents as the Purchaser may consider necessary for giving full effect
to this Agreement, including, without limitation, the execution of such
confirmations and/or declarations, and/or the disclosure of such
information, as may be required by law or regulatory authorities.
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9. RELEASE AND INDULGENCE
Any liability of any of the Parties under this Agreement may in whole or in
part be released, compounded or compromised, or time or indulgence
given, by the other Party in its absolute discretion in writing without in
any way prejudicing or affecting any of its other rights against that Party.
10. ANNOUNCEMENTS
The Vendor shall not make any announcements relating to the
transactions to which this Agreement relates without the prior written
consent of the Purchaser, which shall not be unreasonably withheld.
Notwithstanding the foregoing, the Vendor may disclose certain
information relating to this Agreement if required to do so by law or any
other regulatory or administrative body, including, without limitation,
public disclosures made or press releases issued (i) pursuant to the
Securities Act of 1933 or the Securities Exchange Act of 1934, or (ii)
pursuant to any listing agreement with any national securities exchange
or the National Association of Securities Dealers, Inc.
11. NOTICES
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 fax addressed to the intended
recipient thereof at its address or fax number as any Party may from time
to time notify the other Party.
12. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT
The Contracts (Rights of Third Parties) Act Cap 53B shall not under any
circumstances apply to this Agreement and any person who is not a
party to this Agreement (whether or not such person shall be named,
referred to, or otherwise identified, or shall form part of a class of
persons so named, referred to, or identified, in this Agreement) shall
have no right whatsoever under the Contracts (Rights of Third Parties)
Act to enforce this Agreement or any of its terms.
13. COSTS
The Vendor shall bear the Vendor's own legal and other costs and
expenses in connection with this Agreement and the sale of the Sale
Shares. The Purchaser shall bear the Purchaser's own legal and other
costs and expenses (including stamp duty) in connection with this
Agreement and the purchase of the Sale Shares.
14. COUNTERPARTS
This Agreement may be signed in any number of counterparts and by the
Parties on separate counterparts, each of which when so executed shall
be deemed to constitute an original, but all counterparts shall together
constitute one and the same document.
15. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with
Singapore law. Each Party hereby irrevocably agrees to submit to the
non-exclusive jurisdiction of the courts of Singapore.
____________________
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IN WITNESS WHEREOF this Agreement has been executed on the date
stated at the beginning.
The Vendor
SIGNED by )
XXXX X. XXXXXXX ) /s/ XXXX X. XXXXXXX
for and on behalf of )
AEHR TEST SYSTEMS )
in the presence of :- ) /s/ XXXX X. XXXXXX
The Purchaser
SIGNED by )
QUAH SU-LING ) /s/ QUAH SU-LING IPCO INTERNATIONAL
for and on behalf of ) LIMITED Corporate
IPCO INTERNATIONAL LIMITED ) Seal Affixed
in the presence of :- )
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