Exhibit 10.2
ALLONGE TO SHARE PURCHASE AGREEMENT AND
DEED OF INDEMNITY
relating to shares in Super Insight Limited
THIS ALLONGE is made on the 28th day of November 2003.
WHEREAS
(A) On 28 November, 2003, a Share Purchase Agreement (the "Purchase
Agreement") was entered into between Immtech International, Inc. (the
"Purchaser"), Xx. Xxxx Xxx Xxxx (the "Seller") and Super Insight Limited
(the "Company").
(B) On 28 November, 2003, a Deed of Indemnity (the "Original Deed of
Indemnity") was entered into between the Purchaser, the Seller and the
Company.
(C) The parties hereto wish to amend and add to the Purchase Agreement and the
Original Deed of Indemnity by execution of this Allonge.
NOW, THEREFORE, for good and valuable consideration and intending to be legally
bound hereby, the parties hereto agree as follows:
I. INTERPRETATION
A. Capitalized terms used herein (including the Recitals) and not otherwise
defined herein and except where the context otherwise requires shall have
the meanings set forth for such terms in the Purchase Agreement or the
Original Deed of Indemnity.
B. References to Clauses and Schedules in this Allonge shall refer to the
corresponding Clauses or Schedules to the Purchase Agreement or the
Original Deed of Indemnity as applicable.
C. References to "the Agreement" or "this Deed" whether contained in the
Purchase Agreement, the Original Deed of Indemnity or in this Allonge
shall be construed to mean (as applicable) the Purchase Agreement as
amended or the Original Deed of Indemnity as amended pursuant to the terms
of this Allonge.
II. REVISED TERMS
A. The following party is added to the Purchase Agreement:
"(4) LENTON FIBRE OPTICS DEVELOPMENT LIMITED, a company incorporated in
Hong Kong under the Companies Ordinance with registered number
673085 whose registered office is at 3rd Floor, X.X.X. Xxxxxxxx, Xx.
00 Xxxxxxxxx Xxxx Xxxxxxx, Xxxx Xxxx ("Lenton")."
B. The following Recitals (H), (I), (J), (K), (L) (M) and (N) are added after
Recital (G) of the Purchase Agreement:
"(H) Immtech Hong Kong Limited is a company incorporated in Hong Kong
under the Companies Ordinance with registered number 826594 whose
registered office is at 3/F, A.I.E. Building, Xx.00 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx ("Xxxxxxx Xxxx Xxxx"), and as at the date hereof
has an authorized share capital of HK$10,000.00 divided into one
class of 10,000 ordinary shares of HK$1.00 each, of which 10,000
shares have been issued and are fully paid up.
(I) Lenton beneficially owns, free and clear of any lien, charge or
encumbrance, 10,000 shares of Immtech Hong Kong, of which 9,999
shares are registered in the name of Lenton and 1 share is
registered in the name of Seconom Limited as the nominee of Lenton
(the "Immtech Hong Kong Shares").
(J) Immtech Therapeutics Limited [CHINESE SYMBOLS] is a company
incorporated in Hong Kong under the Companies Ordinance with
registered number 852044 whose registered office is at 3rd Floor,
AIE Building, 00 Xxxxxxxxx Xxxx Xxxxxxx, Xxxx Xxxx ("Immtech
Therapeutics"), and as at the date hereof has an authorized share
capital of HK$10,000.00 divided into one class of 10,000 ordinary
shares of HK$1.00 each, all of which shares have been issued and are
fully paid up.
(K) Immtech Hong Kong beneficially owns, free and clear of any lien,
charge or encumbrance, 5,100 shares of Immtech Therapeutics, of
which all are registered in the name of Immtech Hong Kong.
(L) Centralfield International Limited, a company incorporated in the
British Virgin Islands whose registered office is at X.X. Xxx 0000,
Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx, beneficially owns, free
and clear of any lien, charge or encumbrance, 3,500 shares of
Immtech Therapeutics, of which all are registered in the name of
Centralfield International Limited.
(M) Bingo Star Limited, a company incorporated in the British Virgin
Islands whose registered office is at 0xx Xxxxx, X.X.X. Xxxxxxxx, 00
Xxxxxxxxx Xxxx Xxxxxxx, Xxxx Xxxx, beneficially owns, free and clear
of any lien, charge or encumbrance, 1,400 shares of Immtech
Therapeutics, of which all are registered in the name of Bingo Star
Limited.
(N) The Purchaser wishes to purchase from Lenton, and Lenton wishes to
sell to the Purchaser, the Immtech Hong Kong Shares upon the terms
and conditions as set forth herein."
(O) The Seller has agreed to guarantee the obligations of the Company
and Lenton hereunder.
(P) The Purchaser's execution and delivery, and therefor its obligations
under, the Share Purchase Agreement are contingent upon Seller's
execution and delivery of this Allonge to the Purchaser.
C. The following definitions are added to Clause 1.01 of the Purchase
Agreement:
""Appraisal" means a real estate appraisal of the Properties by a
recognized appraiser in the geographic region of the Properties
certifying that the value of the Properties is not less than the sum
of the net book value of the Consideration Shares on the books of
the Purchaser plus US$400,000.00;
"Immtech Hong Kong Purchase Consideration" means the consideration
payable for the Immtech Hong Kong Shares as specified in Clause 3;"
"Immtech Hong Kong Shares" means 10,000 ordinary shares of HK$1.00
each in the share capital of Immtech Hong Kong;"
D. The following definition in Clause 1.01 of the Purchase Agreement is
hereby deleted in its entirety and is replaced with the following:
""Completion" means completion of the purchase of the Transaction
Shares and the Immtech Hong Kong Shares as specified in Clause 5;
E. Clause 1.04 of the Purchase Agreement is hereby deleted in its entirety
and replaced with the following Clause 1.04:
"1.04 The expressions "the Purchaser", the "Company", "the Seller"
and "Lenton" shall, where the context permits, include their
respective successors and permitted assigns."
F. Clause 2.01 of the Purchase Agreement is hereby deleted in its entirety
and replaced with the following Clause 2.01:
"2.01 Subject to the terms and conditions of this Agreement, the
Purchaser hereby agrees to purchase the Transaction Shares from the
Seller at the Purchase Consideration payable in accordance with this
Agreement and the Seller hereby agrees to sell the Transaction
Shares to the Purchaser on the Completion Date at the Purchase
Consideration payable in accordance with this Agreement. Subject to
the terms and conditions of this Agreement, the Purchaser hereby
agrees to purchase the Immtech Hong Kong Shares from Lenton at the
Immtech Hong Kong Purchase Consideration payable in accordance with
this Agreement and Lenton hereby agrees to sell the Immtech Hong
Kong Shares to the Purchaser on the Completion Date at the Immtech
Hong Kong Purchase Consideration payable in accordance with this
Agreement." No action to be taken at the Completion shall be deemed
to have occurred until all have occurred, and when all have occurred
they shall be deemed to have occurred simultaneously.
G. The following is added to the end of Clause 2.02 of the Purchase
Agreement:
"The Immtech Hong Kong Shares shall be sold free from all liens,
charges, third party rights and encumbrances of whatever nature and
with all rights now or hereinafter attaching thereto, and shall be
transferred to the Purchaser and/ or its nominee and be recorded in
the statutory registers of Immtech Hong Kong and will accordingly
rank pari passu for all dividends and other distributions hereafter
declared, made or paid on the issued ordinary share capital of
Immtech Hong Kong on and with effect from Completion."
H. The following is added to the end of Clause 2.03 of the Purchase
Agreement:
"Lenton represents and warrants to the Purchaser that all necessary
resolutions have been passed and other steps and actions have been
taken to approve the transfer of the Immtech Hong Kong Shares and
the record of the Purchaser and/or its nominee as shareholder(s) of
the Immtech Hong Kong Shares on the statutory registers of Immtech
Hong Kong."
I. The following is added to the end of Clause 2.04 of the Purchase
Agreement:
"Lenton hereby confirms that no person or entity, as of the date of
this Agreement, has or will have, from the date of this Agreement to
the Completion Date, any right to purchase or subscribe for any
shares of Immtech Hong Kong, including the Immtech Hong Kong Shares,
or any right to request or be allotted or issued shares of Immtech
Hong Kong from either Lenton or Immtech Hong Kong, or any other
shares of Immtech Hong Kong (including but not limited to shares of
Immtech Hong Kong in a class different from that of the Immtech Hong
Kong Shares)."
J. Clause 3 of the Purchase Agreement is deleted in its entirety and replaced
with the following:
"The Consideration for the Transaction Shares shall be US$398,712.00
in cash plus the Consideration Shares. The consideration for the
Immtech Hong Kong Shares shall be HK$10,000.00 payable in cash."
K. Clause 4.01 of the Purchase Agreement is hereby deleted in its entirety
and is replaced by the following Clause 4.01:
"4.01 Completion shall be conditional upon:
(a) the Purchaser obtaining the consent to its execution of this
Agreement from its Board of Directors in a form and in terms
satisfactory to it;
(b) Life Science having acquired full title to the Properties free
and clear of all claims, charges, mortgages, liens,
encumbrances, leases, tenancies, options, covenants,
restrictions, conditions or other agreements affecting the
Properties and has obtained exclusive and unfettered
possession of the Properties;
(c) the Purchaser being satisfied with the results of its due
diligence investigations into the Company and Immtech Hong
Kong;
(d) all representations, warranties and undertakings of the
Seller, the Company and Lenton being true, correct and
complete as of the Completion Date; and
(e) the Seller delivering to the Purchaser an Appraisal acceptable
to the Purchaser's public auditors."
L. The following is added to the end of Clause 5.02 of the Purchase
Agreement:
"Lenton represents and warrants to the Purchaser that (i)Lenton have
the power and authority to enter into this Agreement and Lenton and
Immtech Hong Kong have the power and authority to consummate the
transactions contemplated hereby; (ii) this Agreement has been duly
executed and delivered by Lenton, and constitutes a legal, valid and
binding obligation of it, enforceable in accordance with its terms;
(iii) Lenton has good and marketable title to the Immtech Hong Kong
Shares, free of liens, charges and encumbrances; and (iv) the Board
of Directors of Immtech Hong Kong has resolved and approved, at a
duly called and held meeting of Immtech Hong Kong's Board of
Directors, all actions and documents necessary and convenient to the
completion of the relevant transactions described herein and to
enter the name(s) of the Purchaser and/or its nominee(s) in the
register of members of Immtech Hong Kong as holders of the Immtech
Hong Kong Shares."
M. Clause 5.03 of the Purchase Agreement is hereby deleted in its entirety
and is replaced by the following Clause 5.03:
"5.03 At Completion, the Seller shall deliver or cause to be delivered to
the Purchaser all the items contemplated under Clause 5.03(a) to
Clause 5.03(g), and Lenton shall deliver or cause to be delivered to
the Purchaser all the items contemplated under Clause 5.03(h) to
Clause 5.03(m):
(a) a duly executed instrument of transfer and contract notes in
respect of the Transaction Shares in favour of the Purchaser
or its nominee(s);
(b) original share certificate in respect of 100 Shares in the
name of the Seller;
(c) such other documents as may be required to give the Purchaser
or its nominee(s) good title to the Transaction Shares free
from all liens, charges, equities, encumbrances and third
party rights of any nature and to enable the Purchaser or its
nominee(s) to become the registered holders thereof;
(d) a copy, certified as true and complete by a director of the
Company, of each of the minutes of the shareholders' meeting
and the board meeting of the Company referred to in Clause
5.02 above;
(e) the Land Grant Contract and Title Certificate and other title
documents and approvals to the Properties, showing title to
the Properties to be in Life Science, for safekeeping on
behalf of the Company and Life Science;
(f) the Deed of Indemnity duly executed by the Seller;
(g) a cheque drawn in favour of the Government of Hong Kong for
the full payment of the Seller's share of stamp duty in
respect of the Consideration Shares;
(h) duly executed instruments of transfer and contract notes in
respect of the Immtech Hong Kong Shares in favour of the
Purchaser and / or its nominee(s);
(i) original share certificate in respect of 9,999 Immtech Hong
Kong Shares in the name of Lenton, and original share
certificate in respect of 1 Immtech Hong Kong Share in the
name of Seconom Limited;
(j) such other documents as may be required to give the Purchaser
and / or its nominee(s) good title to the Immtech Hong Kong
Shares free from all liens, charges, equities, encumbrances
and third party rights of any nature and to enable the
Purchaser and / or its nominee(s) to become the registered
holders thereof;
(k) a copy, certified as true and complete by a director of
Immtech Hong Kong, of the minutes of the board meeting of
Immtech Hong Kong referred to in Clause 5.02 above;
(l) the Deed of Indemnity duly executed by the Seller, Lenton and
Immtech Hong Kong; and
(m) a cheque drawn in favour of the Government of Hong Kong for
the full payment of Lenton's share of stamp duty in respect of
the Immtech Hong Kong Shares.
N. Clause 5.04 of the Purchase Agreement is hereby deleted in its entirety
and is replaced by the following Clause 5.04:
"5.04 At Completion, the Purchaser shall deliver to the Seller all
the items contemplated under Clause 5.04(a) to Clause 5.04(d), and
the Purchaser shall deliver to Lenton the item contemplated under
Clause 5.04(e):-
(a) a bankers' draft in the amount of US$200,000.00 drawn on a
prime bank in Hong Kong in favour of the Seller or as it may
direct in writing (whose receipt shall be an absolute
discharge thereof) in satisfaction of US$200,000.00 of the
US$398,712.00 cash part of the Purchase Consideration as
stipulated in Clause 3;
(b) a duly executed instrument of transfer and contract notes in
respect of the Consideration Shares in favour of the Seller or
its nominee(s);
(c) original share certificates in respect of the Consideration
Shares in the name of the Purchaser or its nominee;
(d) a signature page to the Deed of Indemnity duly executed by the
Purchaser; and
(e) a bankers' draft in the amount of HK$10,000.00 (US$1,289.00)
drawn on a prime bank in Hong Kong in favour of Lenton or as
it may direct in writing (whose receipt shall be an absolute
discharge thereof) in satisfaction of the Immtech Hong Kong
Purchase Consideration as stipulated in Clause 3."
O. The introduction of Clause 5.06 of the Purchase Agreement is hereby
deleted in its entirety and replaced with the following:
"Without prejudice to any other remedies available to the Purchaser,
if in any respect the provisions of Clause 5.02 and Clause 5.03 are
not complied with (other than as a result of the willful default of
the Purchaser) by the Company, Lenton or the Seller (as the case may
be) on the Completion Date, the Purchaser may:"
P. The heading of Clause 6 of the Purchase Agreement is hereby deleted in its
entirety and is replaced by the following:
"6. FURTHER OBLIGATIONS OF THE SELLER, THE PURCHASER AND LENTON"
Q. Clause 6.04(d) of the Purchase Agreement is hereby deleted in its entirety
and is replaced by the following Clause 6.04(d):
"(d) procure that the name of the building of which the Properties form
part of be changed to "Immtech Life Science Building" within nine
(9) months of the execution of this Agreement by all the parties
hereto, and agree to any future change of name of such building
which may be proposed by the Purchaser as the Purchaser may be
entitled or empowered to effect such change directly or indirectly
through any subsidiary or entity or otherwise; and"
R. Clause 6.06 of the Purchase Agreement is hereby deleted in its entirety
and is replaced by the following Clause 6.06:
"6.06 The Purchaser shall, within two (2) month of the execution of
this Agreement by all the parties hereto, deliver to the Seller a
bankers' draft in the amount of US$198,712.00 drawn on a prime bank
in Hong Kong in favour of the Seller or as it may direct in writing
(whose receipt shall be an absolute discharge thereof) in
satisfaction of the remaining cash part of the Purchase
Consideration as stipulated in Clause 3."
S. The following Clause 6.07 to Clause 6.10 are added after Clause 6.06 of
the Purchase Agreement:
"6.07 Lenton shall procure that the business of Immtech Hong Kong be
operated in a manner consistent with past practices during the
period from the date hereof until Completion.
6.08 Between the date hereof and Completion, Lenton shall not, and
shall procure that Immtech Hong Kong shall not, without the prior
consent in writing of the Purchaser, enter into any contracts or
hire any employee or incur any single expenditure in excess of
US$2,000.00 or an aggregate expenditure in excess of US$2,000.00.
6.09 Lenton undertakes to indemnify and keep indemnified the
Purchaser (for itself and as trustee for Immtech Hong Kong) against
any claim which may be brought by any of the directors of Immtech
Hong Kong who resign or are intended to resign.
6.10 Lenton shall forthwith upon Completion procure Xx. Xxxx Xxx
Xxxx to resign from the board of directors of Immtech Hong Kong."
T. Clause 7.01 of the Purchase Agreement is hereby deleted in its entirety
and replaced with the following Clause 7.01:
"7.01 The Company, Lenton and the Seller hereby represent, warrant
and undertake to the Purchaser (to the intent that the provisions of
this Clause 7 shall continue to have full force and effect
notwithstanding Completion) in the terms set out in Clause 2, Clause
5, this Clause 7 and in Schedule 3 and acknowledge that the
Purchaser, in entering into this Agreement, is relying on such
representations, warranties and undertakings and that the Purchaser
shall be entitled to treat the same as conditions to the obligations
of the Purchaser under this Agreement."
U. Clause 7.04 of the Purchase Agreement is hereby deleted in its entirety
and replaced with the following Clause 7.04:
" 7.04 The Seller hereby undertakes to indemnify and keep
indemnified the Purchaser (for itself and as trustee for the Company
or for itself and as trustee of Immtech Hong Kong, as applicable)
against any loss or liability suffered by the Purchaser as a result
of or in connection with any breach of the said representations,
warranties and undertakings including, but not limited to, any
diminution in the value of the assets of and any payment made or
required to be made by the Purchaser, the Company or Immtech Hong
Kong and any costs and expenses incurred as a result of such breach
provided that the indemnity contained in this Clause shall be
without prejudice to any other rights and remedies of the Purchaser
in relation to any such breach of representation, warranty or
undertaking and all such other rights and remedies are hereby
expressly reserved to the Purchaser."
V. The following is added to the end of Clause 7.05 of the Purchase
Agreement:
"Lenton represents and warrants that (i) the business of Immtech
Hong Kong shall be operated in a manner consistent with past
practices during the period from the date hereof until Completion;
and (ii) between the date hereof and Completion, Immtech Hong Kong
shall not, without the prior consent in writing of the Purchaser,
enter into any contracts or hire any employee or incur any single
expenditure in excess of US$2,000.00 or an aggregate expenditure
in excess of US$2,000.00."
W. Clause 8 of the Purchase Agreement is hereby deleted in its entirety and
replaced with the following Clause 8:
"8. GUARANTEE
8.01 In consideration of the Purchaser entering into this Agreement,
the Seller as primary obligor hereby unconditionally and irrevocably
guarantees by way of continuing guarantee to the Purchaser the due
and punctual performance and observance by the Company and Lenton of
all obligations, commitments, undertakings, agreements,
representations, warranties, indemnities and covenants under or
pursuant to this Agreement and agrees to indemnify and keep
indemnified the Purchaser in full from and against all liabilities,
losses, damages, claims, costs and expenses (including all legal
costs and expenses on a full indemnity basis) which the Purchaser
may suffer through or arising from any breach or non-fulfillment by
the Company or Lenton of such obligations, commitments,
undertakings, agreements, representations, warranties, indemnities
or covenants or as a result of the failure by the Company or Lenton
to make any payment under the Agreement when due or as a result of
any of such obligations, commitments, undertakings, agreements,
representations, warranties, indemnities or covenants of the Company
or Lenton being or becoming void, voidable or unenforceable for any
reason whatsoever (whether or not known to the Purchaser), the
amount of such costs, expenses, losses or damages being the amount
which the Purchaser would have otherwise been entitled to recover
from the Company or Lenton together with all expenses which the
Purchaser may incur in proceeding against the Company or Lenton.
8.02 The Seller, as primary obligor, unconditionally and irrevocably
agrees that if and whenever the Company or Lenton defaults for any
reason whatsoever in the performance of any obligation or liability
undertaken or expressed to be undertaken by it under or pursuant to
this Agreement, the Seller shall forthwith upon demand
unconditionally perform (or procure performance of) and satisfy (or
procure the satisfaction of) the obligation or liability in regard
to which such default has been made in the manner prescribed by this
Agreement and so that the same benefits shall be conferred on the
Purchaser as it would have received if such obligation or liability
had been duly performed and satisfied.
8.03 The guarantee and indemnity set out in this Clause shall be a
continuing security to the Purchaser for all obligations,
commitments, undertakings, representations, warranties, indemnities
and covenants on the part of the Company and Lenton under or
pursuant to this Agreement notwithstanding any settlement of account
or other matter or thing whatsoever and is in addition and without
prejudice to and not in substitution for any rights or security
which the Purchaser may now or hereafter have or hold for the
performance and observance of the obligations, commitments,
undertakings, agreements, representations, warranties, indemnities
and covenants of the Company or Lenton under or in connection with
this Agreement.
8.04 As a separate and independent stipulation, the Seller agrees
that any obligation expressed to be undertaken by the Company or
Lenton under this Agreement (including, without limitation, any
monies expressed to be payable under this Agreement) which may not
be enforceable against or recoverable from the Company or Lenton by
reason of any legal limitation, disability or incapacity or any
other fact or circumstance shall nevertheless be enforceable against
or recoverable from the Seller as though the same has been incurred
by the Seller and that the Seller was the principal obligor in
respect thereof and shall be performed or paid by the Seller in
accordance with the terms of this Agreement.
8.05 The obligations of the Seller under this Clause shall not be
affected by any matter or thing which but for this provision might
operate to affect or prejudice those obligations, including without
limitation:
(a) any time or indulgence granted to, or composition with, the
Company or Lenton or any other person;
(b) the taking, variation, renewal or release of, or neglect to
perfect or enforce this Agreement or any right, guarantee,
remedy or security from or against the Company or Lenton or
any other person;
(c) any unenforceability or invalidity of any obligation of the
Company or Lenton, so that this Clause shall be construed as
if there were no such unenforceability or invalidity;
(d) the liquidation, winding-up, receivership or bankruptcy of the
Company or Lenton or the bankruptcy or individual voluntary
arrangement or any similar arrangement of the Seller; and
(e) any other act, matter, event or omission which, but for this
provision, would or might operate to discharge, impair or
otherwise affect the Seller's liabilities hereunder.
The Seller waives any right available to it under any
applicable law which is inconsistent with any provision of this
Clause 8 or which might otherwise require the Purchaser to proceed
against the Company or Lenton or any other person before making a
demand on the Seller.
8.06 So long as any of the obligations, commitments, undertakings,
agreements, representations, warranties, indemnities and covenants
of the Company or Lenton under or pursuant to this Agreement remains
outstanding, the Seller shall not exercise any right of subrogation
or any other right of a surety or enforce any security or other
right or claim against the Company or Lenton or any other person
whether in respect of its liability under this Clause 8 or otherwise
or claim in the insolvency, liquidation or bankruptcy of the Company
or Lenton in competition with the Purchaser.
8.07 All payments under this Clause 8 shall be made in full without
set-off or counterclaim or any restriction or condition and free and
clear of any present or future taxes, duties, charges or other
deductions or withholdings of any nature. If any deduction or
withholding is required to be made from any such payment the Seller
shall, together with such payment, pay to the Purchaser such
additional amount as is necessary to ensure that the Purchaser
receives the full amount due hereunder.
8.08 Notwithstanding anything to the contrary herein, the aggregate
maximum liability of the Seller in respect of any claims that may be
made against him hereunder and under other provisions of this
Agreement shall be limited to ten million United States dollars
(US$10,000,000.00)."
X. Clause 9.01 of the Purchase Agreement is hereby deleted in its entirety
and replaced with the following Clause 9.01:
"9.01 From the date of this Agreement until Completion, the
Purchaser, its professional advisers and appointed representatives
shall have the right upon prior appointment to visit the facilities
of the Company and Immtech Hong Kong as they reasonably require so
as to:
(a) verify the accuracy of the representations, warranties and
undertakings of the Seller or the Company or Lenton contained
herein;
(b) check the existence and condition of the assets thereat; and
(c) carry out a review of and investigation into the history,
assets, liabilities, financial condition, contracts,
commitments and the business of the Company or Immtech Hong
Kong."
Y. Clause 9.02 of the Purchase Agreement is hereby deleted in its entirety
and replaced with the following Clause 9.02:
"9.02 Lenton, or the Company and the Seller (as applicable) hereby
undertake with the Purchaser to ensure that any information and
documents required by the Purchaser or its professional advisers or
appointed representatives for the purposes of such review and
investigation referred to in Clause 9.01 shall be promptly made
available, and copies of such information and documents shall be
permitted to be made by the Purchaser or its professional advisers
or appointed representatives. The information and documents referred
to under this Clause 9 include, but shall not be limited to:
(a) the books of account of the Company and Immtech Hong Kong
including all accounts ledgers;
(b) the statutory books of the Company and Immtech Hong Kong or
copies thereof;
(c) lists of the assets, liabilities and receivables of the
Company and Immtech Hong Kong;
(d) details of all bank accounts of the Company and Immtech Hong
Kong (including the name and address of the bank with whom the
account is kept and the number and nature of the account) and
a statement of the credit and debit balance thereon as at the
close of business on the date of this Agreement;
(e) copies of all licenses, agreements, agencies or all other
documents which affect the Company or Immtech Hong Kong ;
(f) copies of all banking facility documentation entered into by
the Company or Immtech Hong Kong, if any;
(g) copies of all guarantees and any security documents entered
into by the Company or Immtech Hong Kong, if any; and
(h) all financial statements and accountants work papers of the
Company and Immtech Hong Kong."
Z. Clause 9.03 of the Purchase Agreement is hereby deleted in its entirety
and replaced with the following Clause 9.03:
"9.03 The Purchaser hereby undertakes with the Company, the Seller
and Lenton that it will not, prior to Completion and save as
required by law, make use of or disclose or divulge any information
relating to the Seller, the Company, Lenton or Immtech Hong Kong
obtained by it or its representatives pursuant to this Clause 9 to
persons other than its own officers, employees or professional
advisers. Notwithstanding the foregoing, the Purchaser undertakes to
keep strictly confidential the business affairs and prospects of the
Seller, the Company, Lenton and Immtech Hong Kong unless any
announcement or disclosure is required to be made by law or any
regulatory authority to which the Purchaser is subject and in such
event, the Purchaser shall consult with the Seller and the Company,
or Lenton and Immtech Hong Kong (as appropriate) before making any
such announcement or disclosure."
AA. Clause 13 of the Purchase Agreement is hereby deleted in its entirety and
replaced with the following Clause 13:
"13. WAIVER
Any failure by a party hereto to comply with any obligation,
agreement or condition herein may be expressly waived in writing by
all the other parties hereto, but no failure or delay by the
Purchaser in exercising any right, power or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of the same preclude any further exercise thereof
or the exercise of any other right, power or remedy. Without
limiting the foregoing, no waiver by the Purchaser of any breach by
the Company, the Seller or Lenton of any provision hereof shall be
deemed to be a waiver of any subsequent breach of that or any other
provision hereof. If at any time any provision of this Agreement is
or becomes illegal, invalid or unenforceable in any respect, the
legality, validity and enforceability of the remaining provisions of
this Agreement shall not be affected or impaired thereby."
BB. The following notice information of Lenton is added to Clause 16.02 of the
Purchase Agreement:
" To Lenton:-
Name: LENTON FIBRE OPTICS
DEVELOPMENT LIMITED
Address: Xxxx X, 00xx Xxxxx,
000 Broadway,
Mei Foo Sun Chuen, Kowloon,
Hong Kong.
Fax Number: (000) 0000-0000
Attention: Xx. Xxxx Xxx Xxxx"
CC. Paragraph 5 of Schedule 3 to the Purchase Agreement is hereby deleted in
its entirety and replaced with the following Paragraph 5:
"5. Each of the Seller, the Company and Lenton has full power and
authority and all necessary consents, approvals and authorisations to
empower it to enter into this Agreement and to incur and perform
fully the obligations provided for herein and (in the case of the
Seller only) to sell the Transaction Shares and (in the case of
Lenton only) to sell the Immtech Hong Kong Shares, and to incur and
perform fully the obligations provided in the Deed of Indemnity."
DD. The following paragraph is added as new Paragraph 8 of Schedule 3 to the
Purchase Agreement and all subsequent paragraphs of Schedule 3 shall be
renumbered accordingly:
"8. The Immtech Hong Kong Shares will, upon Completion, constitute 100%
of the issued share capital of Immtech Hong Kong and the Immtech
Hong Kong Shares will be sold free from all liens, charges, third
party rights and encumbrances of whatever nature and will be
credited as fully paid in the manner referred to in Clause 2.02 and
will rank pari passu in all respects as one class of shares with the
remainder of the ordinary shares in the capital of Immtech Hong Kong
and will rank pari passu for all dividends and other distributions
hereafter declared, made or paid on the issued ordinary share
capital of Immtech Hong Kong on and with effect from Completion."
EE. The reference to the "Immtech Building" in new Clause 22 of Schedule 3 to
the Purchase Agreement is hereby deleted in its entirety and replaced with
"Immtech Life Science Building".
FF. The new Paragraph 48 of Schedule 3 to the Purchase Agreement is hereby
deleted in its entirety and replaced with the following Paragraph 48:
"48. All written information given or provided to the Purchaser and
its professional advisers by the Company, its professional advisers
and the officers of the Company during the negotiations prior to
this Agreement was when given, and is at the date hereof, true and
accurate and all statements of opinion, intention or expectation in
relation to the Company contained in such information were as at the
time of such disclosure and will, immediately prior to Completion,
having regard to circumstances then subsisting, remain truly and
honestly held and had been made after due and careful consideration.
There is no fact, omission, matter or circumstance which has not
been disclosed in writing to the Purchaser or its professional
advisers which renders any such information untrue, inaccurate or
misleading or which might reasonably affect the willingness of the
Purchaser to proceed with the purchase of the Transaction Shares and
the Immtech Hong Kong Shares on the terms of this Agreement."
GG. The new Paragraph 49 of Schedule 3 to the Purchase Agreement is hereby
deleted in its entirety and replaced with the following Paragraph 49:
"49. There is no fact or matter concerning the Company and its business
and affairs which has not on the basis of the utmost good faith been
disclosed prior to the date of this Agreement in writing to the
Purchaser by the Company which might reasonably affect the
willingness of the Purchaser to proceed with the purchase of the
Transaction Shares and the Immtech Hong Kong Shares on the terms of
this Agreement."
HH. The following party is added to each of the Original Deed of Indemnity and
the Deed of Indemnity:
"(4) IMMTECH HONG KONG LIMITED, a company incorporated in Hong Kong under
the Companies Ordinance with registered number 826594 whose
registered office is at 3/F, A.I.E. Building, Xx.00 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx ("Xxxxxxx Xxxx Xxxx")."
II. Recital (A) of each of the Original Deed of Indemnity and the Deed of
Indemnity is hereby deleted in its entirety and replaced with the
following Recital (A):
"(A) By a Share Purchase Agreement dated 28 November, 2003 (the
"Agreement") made among (1) the Seller, (2) Lenton, (3) the
Purchaser and (4) the Company, the Purchaser has agreed, inter alia,
to purchase and the Seller has agreed, inter alia, to sell the
Transaction Shares (as defined in the Agreement), and the Purchaser
has agreed, inter alia, to purchase and Lenton has agreed, inter
alia, to sell the Immtech Hong Kong Shares (as defined in the
Agreement), on the terms and conditions therein contained, and the
Seller has agreed to guarantee the obligations of the Company and
Lenton thereunder."
JJ. Clause 1.01(b) of each of the Original Deed of Indemnity and the Deed of
Indemnity is hereby deleted in its entirety and replaced with the
following Clause 1.01(b):
"(b) "Claim" means any assessment, notice, demand or other document
issued or action taken by or on behalf of any person, authority or
body whatsoever and of whatever country from which it appears that
the Company or Immtech Hong Kong is liable or is sought to be made
liable to make any payment or is deprived or is sought to be
deprived of any relief or allowance or credit or right to repayment
of Taxation;"
KK. Clause 1.01(c) of each of the Original Deed of Indemnity and the Deed of
Indemnity is hereby deleted in its entirety and replaced with the
following Clause 1.01(c):
"(c) "event" includes (without limitation) the death of any person, any
action, omission or transaction whether or not the Company or
Immtech Hong Kong is a party thereto and includes completion of the
purchase of the Transaction Shares and the purchase of the Immtech
Hong Kong Shares by the Purchaser and references to the result of
events on or before the date hereof shall include the combined
result of two or more events one or more of which shall have taken
place before the date hereof;"
LL. Clause 1.01(e)(i) of each of the Original Deed of Indemnity and the Deed
of Indemnity is hereby deleted in its entirety and replaced with the
following Clause 1.01(e)(i):
"(i) the loss of any relief, allowance or credit granted by or pursuant
to any legislation or otherwise for Taxation purposes which could
but for the Claim in question have been available to the Purchaser
or the Company or Immtech Hong Kong whether or not the said loss
results in any Taxation being payable at the time of such loss; and"
MM. Clause 1.01(e)(ii) of each of the Original Deed of Indemnity and the Deed
of Indemnity is hereby deleted in its entirety and replaced with the
following Clause 1.01(e)(ii):
"(ii) the nullifying or cancellation of a right to repayment of Taxation
which would have been so available or is at the date hereof assumed
by the Company or the Purchaser or Immtech Hong Kong to be
available;"
NN. Clause 1.02 of each of the Original Deed of Indemnity and the Deed of
Indemnity is hereby deleted in its entirety and replaced with the
following Clause 1.02:
"The expressions "the Company", "the Seller", "the Purchaser" and
"Immtech Hong Kong" shall, where the context permits, include their
respective successors, personal representatives and assigns."
OO. Clause 2 of each of the Original Deed of Indemnity and the Deed of
Indemnity is hereby deleted in its entirety and replaced with the
following Clause 2:
"2. INDEMNITY
Subject as hereinafter provided, the Seller hereby undertakes to
indemnify and keep indemnified the Purchaser (for itself and as
trustee for the Company or Immtech Hong Kong, as applicable), the
Company and Immtech Hong Kong against any loss or liability suffered
by the Purchaser, the Company or Immtech Hong Kong including, but
not limited to, losses resulting from any breach of representations,
warranties or covenants contained in this Deed or the Agreement and
any diminution in the value of the assets of or shares in the
Company or Immtech Hong Kong, any payment made or required to be
made by the Purchaser, the Company or Immtech Hong Kong and any
costs and expenses incurred as a result of or in connection with any
Claim falling on the Company or Immtech Hong Kong resulting from or
by reference to any income, profits or gains earned, accrued or
received on or before the date hereof or any event on or before the
date hereof whether alone or in conjunction with other circumstances
and whether or not such is chargeable against or attributable to any
other person, firm or company."
PP. Clause 3(b) of each of the Original Deed of Indemnity and the Deed of
Indemnity is hereby deleted in its entirety and replaced with the
following Clause 3(b):
"(b) for which the Company or Immtech Hong Kong is primarily liable as a
result of transactions in the ordinary course of its business after
the Accounting Date."
QQ. Clause 4 of each of the Original Deed of Indemnity and the Deed of
Indemnity is hereby deleted in its entirety and replaced with the
following Clause 4:
"4. COSTS AND EXPENSES
The indemnities given by this Deed shall cover all costs and
expenses (on a full indemnity basis) incurred by the Purchaser, the
Company or Immtech Hong Kong in connection with any Claim, and any
penalties, fines or interest payable by the Purchaser, the Company
or Immtech Hong Kong relating to any Claim for which the Seller is
liable under this Deed."
RR. Clause 5 of each of the Original Deed of Indemnity and the Deed of
Indemnity is hereby deleted in its entirety and replaced with the
following Clause 5:
"5. REIMBURSEMENT
In the event that any Claim the subject of an indemnity hereunder is
or has been discharged (whether by payment or by the loss of any
relief, allowance, credit or right to repayment of Taxation) or
suffered by the Company or Immtech Hong Kong the indemnity given
hereunder shall take effect as a covenant by the Seller forthwith to
reimburse the Company or Immtech Hong Kong (as the case may be) for
any amount so paid or to compensate the Company or Immtech Hong Kong
(as the case may be) for any loss of relief, allowance, credit or
right to repayment so suffered."
SS. Clause 7 of each of the Original Deed of Indemnity and the Deed of
Indemnity is hereby deleted in its entirety and replaced with the
following Clause 7:
"7. WAIVER AND SEVERABILITY
No failure or delay by the Purchaser, the Company or Immtech Hong
Kong in exercising any right, power or remedy under this Deed shall
operate as a waiver thereof, nor shall any single or partial
exercise of the same preclude any further exercise thereof or the
exercise of any other right, power of remedy. If at any time any
provision of this Deed is or becomes illegal, invalid or
unenforceable in any respect, the legality, validity and
enforceability of the remaining provisions of this Deed shall not be
affected or impaired thereby."
TT. Clause 8 of each of the Original Deed of Indemnity and the Deed of
Indemnity is hereby deleted in its entirety and replaced with the
following Clause 8:
"8. ASSIGNMENT
The Purchaser, the Company and Immtech Hong Kong may assign their
respective rights and benefits under this Deed."
UU. The following notice information is added to Clause 9 of each of the
Original Deed of Indemnity and the Deed of Indemnity:
"To Immtech Hong Kong: Name: Immtech Hong Kong Limited
Address: 3/F, X.X.X. Xxxxxxxx, Xx.00
Xxxxxxxxx Xxxx Xxxxxxx
Xxxx Xxxx
Fax Number: (000) 0000 0000
Attention: Xx. Xxx Xxxxx Xxx Xxxx"
III. MISCELLANEOUS
A. Save as expressly amended pursuant to this Allonge, the Purchase Agreement
and the Original Deed of Indemnity shall remain in full force and effect.
B. Any dispute arising out of or in connection with this Allonge shall be
exclusively settled by confidential arbitration in Hong Kong at the Hong
Kong International Arbitration Centre according to its rules. The
arbitration shall be conducted by three arbitrators, one selected by each
party to the dispute and the third by the two so selected within 21 days
from the date the relevant dispute arises. The judgment of a majority of
the arbitrators may be entered and enforced in any court of competent
jurisdiction. The arbitrators shall have no authority to amend this
Allonge. This Allonge shall be governed by and construed in all respects
in accordance with the laws of Hong Kong, without regard to its laws
regarding conflict of laws. The allocation of the costs relating to the
arbitration as contemplated in this Clause III(B) shall be determined by
the decree of a majority of the arbitrators.
IN WITNESS WHEREOF, this Allonge to the Purchase Agreement and the Original Deed
of Indemnity is made effective as of the day and year first above written.
SIGNED by )
/s/ T. Xxxxxxx Xxxxxxxx )
----------------------------------- )
T. Xxxxxxx Xxxxxxxx )
for and on behalf of )
IMMTECH INTERNATIONAL, INC. )
)
in the presence of :- )
/s/ Xxxx X. Xxxxx
-----------------------------------
XXXX X. XXXXX
SIGNED by )
/s/ Chan Xxx Xxxx )
------------------------------------ )
XX. XXXX XXX XXXX )
)
in the presence of:- )
/s/ Xxxxxx Xxx
------------------------------------
Xxxxxx Xxx
Solicitor; Hong Kong
Xxxxxx Xxxxxx White & XxXxxxxxx
SIGNED by ) For and on behalf of
XXXX XXXX XXXX XXX ) SUPER INSIGHT LIMITED
for and on behalf of )
SUPER INSIGHT LIMITED ) /s/ Xxxx Xxxx Xxxx Xxx
) ---------------------------------
in the presence of :- ) Authorized Signature(s)
/s/ Ho Sin Xxx, Xxxxx
------------------------------------
Ho Sin Xxx, Xxxxx
Solicitor, Hong Kong SAR
Xxxxxx Xxxxxx White & XxXxxxxxx
SIGNED by ) For and on behalf of
) [CHINESE CHARACTERS]
for and on behalf of ) LENTON FIBRE OPTICS DEVELOPMENT
LENTON FIBRE OPTICS ) LIMITED
DEVELOPMENT LIMITED ) /s/ Chan Xxx Xxxx
) ---------------------------------
in the presence of :- ) Authorized Signature(s)
SIGNED by )
XXXX XXXX XXXX XXX ) For and on behalf of
for and on behalf of ) IMMTECH HONG KONG LIMITED
IMMTECH HONG KONG LIMITED )
in the presence of :- ) /s/ Xxxx Xxxx Xxxx Xxx
) ---------------------------------
Authorized Signature(s)
/s/ Ho Sin Xxx, Xxxxx
------------------------------------
Ho Sin Xxx, Xxxxx
Solicitor, Hong Kong SAR
Xxxxxx Xxxxxx White & XxXxxxxxx
