THIS AGREEMENT is dated and is made BETWEEN: NOW IT IS HEREBY AGREED as follows:-
Exhibit
4(s)
THIS
AGREEMENT is dated
and
is
made BETWEEN:
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(1)
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SEACOAST
PROFITS LIMITED, a B.V.I. company, of 1408 Xxxxx-Xxxx Xxxxx, 00 Xxx
Xxxxx
Xxxx Xxxxxxx, Xxxx Xxxx, Fax no. x000-0000-0000 (“the Vendor”);
and
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(2)
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J
& R HOLDING LIMITED, a Bermuda company of Rm. 1901, 19th Floor, TWTC
International Trade Building, No. 333, Keelung Road, Section One,
Taipei,
Taiwan, R.O.C. Fax No x000-0-0000-0000 (“the
Purchaser”).
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NOW
IT IS
HEREBY AGREED as follows:-
1.01 In
this Agreement and the Schedule hereto, unless the context otherwise
requires:-
“the
Company” means Top Master Enterprises Limited, a company incorporated under the
laws of the British Virgin Islands;
“Completion”
means the performance by the parties of the several obligations contained in
Clause 3;
“GAPT
Cayman” means Global Advanced Packaging Technology Ltd., a Cayman Islands
company;
“GAPT
Shanghai” means Global Advanced Packaging Technology Limited, a People’s
Republic of China company;
“the
Sale
Shares” means the all of the issued and fully paid shares in the capital of the
Company which are beneficially owned by and registered in the name of the
Vendor;
“the
Subsidiaries” means either or both of GAPT Cayman and Gapt
Shanghai;
“the
Subsidiary Shares” means all of the issued and fully paid shares in the capital
of GAPT Cayman and GAPT Shanghai;
“Taxation”
shall mean all forms of taxation and whether of B.V.I., Cayman Islands or
elsewhere.
SALE
AND PURCHASE
2.01 The
Vendor, as beneficial owner, shall sell the Sale Shares to the Purchaser free
from any claims, charges, liens, encumbrances, equities and third party rights
and with all rights now or hereafter attached or attaching thereto including
all
rights to dividends and distributions declared, paid or made in respect of
the
Sale Shares after Completion and the Purchaser relying on the representations,
warranties, undertakings and indemnities of or by the Vendor herein contained
shall purchase the Sale Shares with effect from Completion.
1
2.02 The
consideration for the sale of the Sale Shares hereunder is the sum of Sixty
Million US dollars (US$ 60,000,000).
COMPLETION
3.01 Completion
will take place as soon as practicable when the following business will be
transacted:-
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(a)
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The
Vendor will deliver to the Purchaser (save insofar as any such items
are
passed to the Purchaser by constructive
delivery):-
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(1)
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one
or more instruments of transfer in respect of the Sale Shares duly
executed by the Vendor in favour of the Purchaser and/or its nominees
all
in accordance with the Articles of Association of the Company and
the
relevant applicable laws in B.V.I.;
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(2)
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share
certificates for all the Sale Shares and the Subsidiary
Shares;
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(3)
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the
Certificate of Incorporation, the statutory, share certificate and
minute
books and the Common Seal and chops of the Company and the
Subsidiaries;
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(4)
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all
other books, documents and records of the Company and the
Subsidiaries;
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(5)
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Minutes
or resolutions of the Board of the Company approving with effect
on
Completion:
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(aa)
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the
transfer of the Sale Shares to the Purchaser and/or its nominees
and,
subject to submission to the Company of the instrument of transfer,
registration thereof in Company’s Register of Members and the issue under
seal of the relevant share certificates in the name of the Purchaser
and/or its nominees;
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(bb)
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the
appointment as additional Directors of the Company of such persons
as the
Purchaser may require;
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(6)
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such
other documents as may be required to give to the Purchaser good
title to
the Sale Shares and to enable the Purchaser or its nominees to
become the
registered holders thereof
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(b)
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The
Purchaser will deliver to the Vendor a banker’s draft or cashier’s order
for the sum of US$60,000,000 drawn in favour of the Vendor as
payment of the consideration referred to in Clause 2.02 or shall
make such
other arrangements for payment of the said amount to the Vendor as
the
Vendor shall prescribe.
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UNDERTAKINGS
PENDING COMPLETION
4.01 The
Vendor hereby undertakes with the Purchaser to procure that, pending Completion,
except as approved in writing by the Purchaser, each of the Company and the
Subsidiaries will:-
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(a)
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operate
its business only in the usual, regular and ordinary manner consistent
with present practice, enter into no unusual or onerous obligations,
and
use its best efforts
to:-
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2
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(1)
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preserve its present business organisation intact; |
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(2)
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keep
available the services of its present officers and employees;
and
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(3)
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preserve
its present relationships with persons having business dealings with
it;
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(a)
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maintain
all of its properties and assets in customary repair, order and
condition,
fair wear and tear excepted, and maintain insurance upon all
of its
properties and with respect to the conduct of its business in
such amounts
and of such kinds comparable to that in effect on the date
hereof;
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(b)
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maintain
its books, accounts and records in the usual, regular and ordinary
manner,
on a basis consistent with prior years;
and
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(c)
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comply
with all laws and regulations applicable to it and to the
conduct of its
business and perform all its obligations with
diligence.
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4.02 The
Vendor hereby further undertakes with the Purchaser to procure that, pending
Completion, each of the Company and the Subsidiaries will not (save as
contemplated by this Agreement or the Purchaser may agree in
writing):-
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(a)
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amend
its Memorandum or Articles of Association or issue or agree to issue
any
share or loan capital or grant or agree to grant any option over
or right
to acquire any share or loan capital;
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(b)
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other
than for full value on arm’s-length terms in the ordinary course of
business, enter into any transaction, agreement or contract whatsoever,
trade or carry on business in any manner whatsoever, acquire or dispose
of
any interest in any asset whatsoever or create or undertake any capital
commitment or actual or contingent liability
whatsoever;
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(c)
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create
or permit to arise any lien, charge, encumbrance, pledge, mortgage
or
other third party right or interest on or in respect of any of its
undertaking, property or assets;
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(d)
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issue
any guarantee, indemnity or other contract of
suretyship;
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(e)
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increase
the compensation payable to any director, former director or senior
employee;
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(f)
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declare,
pay or make any dividends or other
distributions;
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(g)
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appoint
any directors, secretaries or (pursuant to any power of attorney
or
similar authority) attornies;
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(h)
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amend,
or do or permit any act or omission which will cause a material breach
of,
any material contract or commitment of the Company or the Subsidiaries,
as
the case may be;
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3
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(i)
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incur
any commitment for capital
expenditure.
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4.03 Without
prejudice to the foregoing provisions of this Clause 4, the Vendor will procure
that (except only to such extent as may be necessary to give effect to this
Agreement) neither the Vendor nor the Company nor the Subsidiaries will do
or
permit or procure any act or omission before Completion which would constitute
a
breach as at Completion of any of the representations, warranties and
undertakings on the part of the Vendor herein contained or which would make
any
of such representations or warranties inaccurate or misleading.
REPRESENTATIONS,
WARRANTIES AND UNDERTAKINGS
5.01 The
Vendor represents and warrants to and undertakes with Purchaser that each of
the
following matters are, as at the date hereof, and will, as at Completion, be
true and correct in all respects:-
| (1) | the Company is a private company limited by shares incorporated under the laws of the British Virgin Islands; |
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(2)
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the
sole director of the Company is Xxxxxx Xxxxxxx
Xxxxxxxx;
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(3)
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GAPT
Cayman is a private company limited by shares incorporated under
the laws
of the Cayman Islands and is a wholly-owned subsidiary of the
Company;
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(4)
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GAPT
Shanghai is a limited liability company established under the laws
of the
People’s Republic of China and is a wholly-owned subsidiary of GAPT
Cayman;
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(5)
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the
Sale Shares are beneficially owned by the Vendor free from any claims,
charges, liens, encumbrances, equities or third party
rights;
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(6)
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the
Sale Shares are registered in the name of the
Vendor;
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(7)
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the
Sale Shares represent 100% of the issued share capital of the
Company;
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(8)
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the
Vendor will at Completion have the unrestricted right (save for any
right
of pre-emption contained in the Company’s Articles of Association or
elsewhere) to transfer the Sale
Shares;
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(9)
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there
is not now nor will there be any option over or right to acquire
any of
the Sale Shares;
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(10)
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the
foregoing warranties (5) to (9) inclusive are hereby repeated mutatis
mutandis in relation to the Subsidiary Shares as regards their ownership
by the Company and GAPT Cayman
respectively.
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4
5.02 The
Vendor further represents and warrants to and undertakes with the Purchaser
in
relation to the Company and the Subsidiaries in the terms of the Schedule
hereto.
5.03 The
Vendor represents and warrants to and undertakes with the Purchaser (for itself
and for the benefit of its successors in title and assigns and as trustee for
such successors in title and assigns) that each of the representations and
warranties contained in this Agreement (including, without limitation, those
in
the Schedule hereto) shall remain true and accurate up to and as at Completion
as if repeated at such lime with reference to all facts and circumstances then
applicable.
5.04 The
Vendor acknowledges that the Purchaser is relying upon the representations,
warranties and undertakings made or given by the Vendor contained in this
Agreement in entering into this Agreement and agreeing to purchase the Sale
Shares and that the Purchaser may treat such representation, warranties and
undertakings as conditions of this Agreement.
GENERAL
6.01
All provisions of this Agreement will so far as they are capable of being
performed or observed continue in full force and effect notwithstanding
Completion except in respect of those matters then already
performed.
6.02 This
Agreement will be binding on and will enure for the benefit of each party’s
successors and assigns and personal representatives (as the case may be), but
no
assignment may be made of any of the rights or obligations hereunder of either
party without the prior written consent of the other party.
6.03 Any
liability of the Vendor to the Purchaser hereunder may in whole or in part
be
released, compounded or compromised or time or indulgence given by the Purchaser
in its absolute discretion as regards the Vendor without in any way prejudicing
or affecting any of its other rights, powers or remedies against the Vendor.
Notwithstanding the foregoing, the representations, warranties and undertakings
on the part of the Vendor herein contained shall not be deemed waived or
otherwise affected by arty investigation made by the Purchaser.
6.04 Any
notice required to be given under this Agreement shall be deemed duly served
if
left at or sent by registered post or by telefax to the respective party at
the
address given above or such telefax number or other address as may have been
last notified in writing by or on behalf of such party to the other party
hereto. Any such notice shall be deemed to be served at the time when the same
is left at the address of the party to be served and if served by post on the
fourth day (not being a Sunday or public holiday) next following the day of
posting and if served by telefax on the day following the day on which the
telefax is transmitted.
6.05 Time
shall be of the essence of this Agreement.
606 Save
as herein appears, each party will bear its own legal and professional fees,
costs and expenses incurred in relation to the negotiation and preparation
of
this Agreement.
6.07 This
Agreement sets forth the entire agreement and understanding between the Vendor
and the Purchaser in connection with the Company and the sale and purchase
of
the Sale Shares
5
and
no
party has relied on any representation of any other party save for any
representation expressly set out or referred to in this Agreement.
6.08 This
Agreement shall supersede all and any previous agreements or arrangements
between the parties hereto or any of them relating to the Sale Shares or to
other matter referred to in this Agreement and all or any such previous
agreements shall cease and determine with effect from the date
hereof.
6.09 No
modification to this Agreement will be effective unless in writing and signed
by
the parties hereto.
6.10 This
Agreement shall be governed by and interpreted in accordance with the laws
of
Hong Kong.
6.11 The
parties hereby submit to the jurisdiction of the Courts of Hong Kong but this
Agreement may be enforced in any other court of competent
jurisdiction.
6.12 This
Agreement may be executed in two or more counterparts, each of which shall
be an
original, but all of which together shall constitute one and the same
instrument.
IN
WITNESS
whereof this Agreement has been duly executed by the parties on the date first
above written.
6
SCHEDULE
Representations,
Warranties and Undertakings
The
Vendor
hereby warrants and represents to and undertakes with the Purchaser that, to
the
best of its information, knowledge and belief having made all diligent and
reasonable enquiries, all statements of fact in this Agreement are true and
accurate in all respects and that:-
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1.
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Compliance
with Legal Requirements
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(A)
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The
Company and the Subsidiaries have duly and properly complied with
any
filing or registration requirements in respect of corporate or other
documents imposed under all relevant laws of their respective places
of
incorporation;
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(B)
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The
statutory books and registers of the Company and the Subsidiaries
have
been properly written up and neither the Company nor the Subsidiaries
have
received any application or request for rectification of its Register
of
Members and compliance has been made with all other legal requirements
concerning the Company and the Subsidiaries and all issues of shares,
debentures or other securities
thereof;
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(C)
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The
Company and the Subsidiaries and their officers (in their capacity
as
such) have complied with all relevant legislation whether in their
respective places of incorporation or elsewhere, including (but without
limitation) legislation relating to companies and securities, real
property, taxation and prevention of
corruption;
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2.
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Accounts
and Financial Matters
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(A)
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The
accounting and other books and records of the Company and the Subsidiaries
have been properly written up and accurately present and reflect
in
accordance with generally accepted accounting principles and standards
applied in their respective places of incorporation all the transactions
entered into by the Company and the Subsidiaries or to which any
of them
has been a party and there are at the date hereof no material inaccuracies
or discrepancies of any kind contained or reflected in any of the
said
books and records, and that as at the date hereof they give and reflect
a
true and fair view of the financial and contractual position of the
Company and the Subsidiaries and of their fixed and current and contingent
assets and liabilities and debtors and
creditors;
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(B)
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The
Company and the Subsidiaries do not have any outstanding commitments
for
capital expenditure save as heretofore notified to the
Purchaser;
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(C)
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The
Company and the Subsidiaries have not created any mortgage, charge
or
debenture whether secured or unsecured save as heretofore notified
by the
Purchaser;
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(D)
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All
debts due to the Company and the Subsidiaries included in the Accounts
have either prior to the date hereof realised or will within six
months
realise their full amount in cash and all debts now due to the Company
and
the Subsidiaries are expected within six months of their due date
to
realise their full amount in cash.
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3.
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Share
Capital
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(A)
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No
share or loan capital of the Company and the Subsidiaries is now
under
option or is agreed conditionally or unconditionally to be created
or
issued or put under option;
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(B)
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No
person has any charge or other security or option over or in respect
of
any unissued share capital of the Company and the
Subsidiaries;
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(C)
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Since
incorporation of the Company and the Subsidiaries no dividend has
been
declared or paid on and no distribution of capital made in respect
of any
share capital of the Company and the Subsidiaries and no loans or
loan
capital has been repaid in whole or in part save as heretofore notified
to
the Purchaser;
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4.
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Ownership
of Assets
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(A)
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The
Company and the Subsidiaries respectively are the owner free from
encumbrances of all their property, undertaking, assets and business
and
all such property, undertaking and assets are in their possession
or under
their control;
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(B)
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Pending
Completion without the prior written consent of the Purchaser, the
Company
and the Subsidiaries will not acquire any assets or incur any liabilities
of any kind other than to acquire or dispose of assets or release
liabilities in the ordinary course of its day to day trading
operations;
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6.
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Taxation
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(A)
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The
Company and the Subsidiaries have complied with all relevant legal
requirements relating to registration or notification for taxation
purposes;
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(B)
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The
Company and the Subsidiaries have:-
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(1)
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paid
or accounted for all taxation (if any) due to be paid or accounted
for by
them before the date of this Agreement;
and
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(2)
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taken
all necessary steps to obtain any repayment of or relief from Taxation
available to them;
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(C)
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The
returns which ought to have been made by or in respect of the Company
and
the Subsidiaries for any taxation purposes have been made and all
such
returns are up-to-date correct and on a proper basis and are not
the
subject of any dispute with any taxation or other relevant authority
and
there are no present circumstances which are likely to give rise
to any
such dispute;
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7.
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Material
Transactions
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Save
as
disclosed to the Purchaser:-
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(A)
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The
Company and the Subsidiaries have
not:-
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(1)
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created
any mortgage or charge on the whole or any part of their
assets;
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(2)
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borrowed
or lent any money which has not been repaid or increased any secured
liability or incurred or entered into any other liability, transaction
or
contract (other than in the ordinary course of day to day
business);
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(3)
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issued
or repaid or agreed to issue or repay any share or loan
capital;
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(4)
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declared,
made or paid any dividends or made any other distributions;
or
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(5)
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entered
into any transaction or incurred any liabilities other than in the
ordinary course of day-to-day business so as to maintain its business
as a
going concern;
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(B)
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The
assets of the Company and the Subsidiaries have not been depleted
by any
unlawful act on the part of any
person;
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(C)
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There
has been no material adverse change in the financial or trading position
or prospects of the Company and the
Subsidiaries;
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8.
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Litigation
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The
Company is not engaged in any litigation, arbitration, prosecution or other
legal proceedings or in any proceedings or hearings before any statutory or
governmental body, department, board or agency and the Vendor having made all
reasonable enquiries is not aware that any such litigation, arbitration,
prosecution or other legal proceedings are pending or threatened;
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9.
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Miscellaneous
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(A)
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The
Company and the Subsidiaries have
not:-
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(1)
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committed
any breach of any statutory provision, order, bye-law or regulation
binding on them or of any provision of their Memorandum or Articles
of
Association or other statutes or of any trust deed, agreement or
licence
to which they are party or of any covenant, mortgage, charge or debenture
respectively given by them; or
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(2)
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omitted
to do anything required or permitted to be done by them necessary
for the
protection of their title to or for the enforcement or the preservation
of
any order of priority of any properties or rights respectively owned
by
them;
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(B)
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All
information relating to the Company and the Subsidiaries which is
known,
or which would on reasonable enquiry be known to the Vendor and which
would materially affect a purchaser or subscriber for value of shares
in
the Company has been disclosed to the Purchaser in
writing;
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(C)
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All
warranties, representations and undertakings contained in this Schedule
shall be deemed to be repeated immediately before Completion and
to relate
to the facts then existing and shall be true and accurate as so
repeated.
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| SIGNED | ) | ||
| for and on behalf of | ) | ||
| SEACOAST PROFITS LIMITED | ) | ||
| SIGNED | ) | ||
| for and on behalf of | ) | ||
| J&R HOLDING LIMITED | ) |
10
