EX-2.4
PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 19th of May, 2001 and is supplemental
to the LETTER OF AGREEMENT dated April 28th 2001.
BETWEEN;
SKYHUB ASIA HOLDINGS LIMITED
Xxxx 0000, 00/X., Xxxxxx Xxxxx Tower
000 Xxxx'x Xxxx
Xxxxx Xxxxx, Xxxx Xxxx S.A.R. China
(Hereinafter called the "Company/Vendor")
AND;
eVISION XXX.XXX
0000 Xxxxxxx Xxxxxx Xxxxx 0000
Xxxxxx XX XXX 00000
(Hereinafter called the "Shareholder")
AND;
eBANKER XXX.XXX
0000 Xxxxxxx Xxxxxx Xxxxx 0000
Xxxxxx XX XXX 00000
(Hereinafter called the "Creditor")
AND:
5G WIRELESS COMMUNICATIONS INC.
Xxxxx 000, 0000 X.Xxxxxx Xxx
Xxx Xxxxx, Xxxxxx XXX
(Hereinafter called the "Purchaser")
WHEREAS:
A. The Purchaser has offered to purchase 30% all of the issued
and outstanding shares of the Company in exchange for a
total investment of US$ 1 million contingent to the creditor
eBanker's guarantee to absolve the Company for any and all
payment of the outstanding balanced owed to the creditor.
The total investment of US$1 million shall be used
exclusively as working capital of the Company, and that all
parties to this agreement agree that this injection of
capital will not be used for payment of any outstanding
interest or loans which eBanker has lent on behalf to the company.
B. The Vendors have each severally agreed to sell 30% of the
issued and outstanding shares of the Company to the
Purchaser held by each such Vendor on the terms and
conditions set forth herein;
C. In order to record the terms and conditions of the agreement
among them the parties wish to enter into this agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
foregoing and of the sum of $1.00 paid by the Purchaser to the
Company, the receipt of which is hereby acknowledged, the parties
hereto agree each with the other as follows
1 INTERPRETATION
1.1 Where used herein or in any amendments or Schedules hereto, the
following terms shall have the following meanings:
(a) "Business" means the business in which the Company is
engaged, namely: the establishment of joint venture
arrangements to provide high speed data, ISP and Voice Over
Internet Protocol (VOIP) on an international level via
satellite and dedicated network services; and any other
enterprise that is directly related to the foregoing;
(b) "Closing Date" means the third business day following
the receipt by the parties of the approval of all regulatory
authorities to this agreement or such other date as may be mutually
agreed upon by the parties hereto;
(c) "Company Financial Statements" means those financial
statements of the Company as at 30 April, 2001 reviewed and
commented upon by the Accountants and attached hereto as
Schedule "C";
(d) "Purchaser Audited Financial Statements" means those
audited financial statements of the Purchaser as at 30
April 2001 attached hereto as Schedule "A";
1.2 All dollar amounts referred to in this agreement are in United
States funds, unless stated otherwise.
1.3 The following schedules are attached to and form part of this
agreement:
Schedule A - Purchaser Audited Financial Statements
Schedule B - Purchaser Interim Financial Statements
Schedule C - Company Financial Statements
Schedule D - Employment, Service & Pension Agreements of the Company
Schedule E - Real Property & Leases of the Company
Schedule F - Encumbrances on the Company's Assets
Schedule G - Company Litigation
Schedule H - Purchaser Litigation
Schedule I - Registered Trademarks, Trade Names & Patents of
the Company
Schedule J - Purchaser's Subsidiaries
2. SHARE EXCHANGE AND PURCHASE OF SHARES
2.1 The Vendors each hereby covenant and agree to sell, assign
and transfer to the Purchaser, and the Purchaser covenants and agrees
to purchase from the Vendor 30% the Company Shares held by Vendor
based on the following terms;
A. The Purchaser has offered to purchase 30% all of the issued
and outstanding shares of the Company in exchange for a
total investment of US$ 1 million.
B. This investment is contingent to the creditor eBanker's
guarantee to absolve the Company for any and all payment of
the outstanding balanced owed to the creditor.
C. The total investment of US$1 million shall be paid out on a
as needed basis and as requested by the managing directors
of Skyhub.
D. FGWC, Skyhub Far East and eVision shall carry on a strategic
alliance, through FGWC's equity participation in Skyhub Asia
Holdings, to provide Broadband Internet access, IP
infrastructure provisioning and enhancement to FGWC's
current network in the Asia Pacific region. In addition, to
jointly explore regional opportunities.
E. Upon FGWC's participation in the Company, the Board at it's
discretion may decide to grant Management Options, up to a
maximum of 10% (fully diluted basis) from the equity holding
of Skyhub Far East. The Management shall have the right to
exercise the options at a nominal strike price.
F. OPTION TO PURCHASE ADDITIONAL SHARES;
a. FGWC or an entity nominated by FGWC, shall have the option
to purchase additional issued shares of Skyhub Asia up to a
maximum of 20% held by eVision. The exercise period of the
Options shall be within 3 years from the Agreement.
b. The exercise price shall be 10% premium per year of the
eVsion's original invested amount of USD 0.8 million (Total
investment of US$ l.2 million for 30% of Skyhub Asia). The
details of the Option shall be mutually agreed and
stipulated in the Agreement.
G. Upon closing of this agreement, FGWC shall hold 30%, and
eVision shall hold 30%, and Skyhub Far East shall hold 40%
of all issued shares in the Company,
H. eVision and eBanker undertakes to cancel the outstanding
loan (including interest payable) from eBanker by swapping
eVison shares held by Skyhub Asia for the full and final
repayment of the total debt outstanding within 14 days after
the closing of this agreement.
I. Upon the execution of this agreement, all subsequent funding
shall be the responsibility of FGWC.
J. The Company shall be managed by its board of directors,
which shall initially be composed of 6 persons, 2 of which
shall be nominated by FGWC . 2 of which shall be nominated
by Skyhub Far East and 2 of which shall be nominated by eVision.
3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE VENDORS AND THE COMPANY
The Vendors and the Company jointly and severally covenant with and
represent and warrant to the Purchaser as follows, and acknowledge
that the Purchaser is relying upon such covenants, representations and
warranties in connection with the purchase by the Purchaser of the
Company Shares:
3.1 The Company has been duly incorporated and organized, is validly
existing and is in good standing under the laws of Hong Kong; it has
the corporate power to own or lease its property and to carry on the
Business; it is duly qualified as a corporation to do business and is
in good standing with respect thereto in each jurisdiction in which
the nature of the Business or the property owned or leased by it makes
such qualification necessary; and it has or will have on the Closing
Date all necessary licenses, permits, authorizations and consents to
operate its Business in accordance with the terms of its Business Plan.
3.2 The authorized capital of the Company consists of ________
shares, of which ________ of such shares have been duly issued and are
outstanding as fully paid and non-assessable.
3.3 The Company Shares owned by the Vendors are owned by him as the
beneficial and recorded owner with a good and marketable title
thereto, free and clear of all mortgages, liens, charges, security
interests, adverse claims, pledges, encumbrances and demands
whatsoever as follows:
Number of Percentage
Company of Issued
Shares Company Shares Name of Vendor
3.4 No person, firm or corporation has any agreement or option or any
right or privilege (whether by law, pre-emptive or contractual)
capable of becoming an agreement or option for the purchase from the
Vendors of any of the Company Shares held by any of them.
3.5 No person, firm or corporation has any agreement or option,
including convertible securities, warrants or convertible obligations
of any nature, or any right or privilege (whether by law, pre-emptive
or contractual) capable of becoming an agreement or option for the
purchase, subscription, allotment or issuance of any of the unissued
shares in the capital of the Company or of any securities of the Company.
3.6 The Company does not have any subsidiaries or agreements of any
nature to acquire any subsidiary or to acquire or lease any other
business operations and will not prior to the Closing Date acquire, or
agree to acquire, any subsidiary or business without the prior written
consent of the Purchaser.
3.7 The Company will not, without the prior written consent of the
Purchaser, issue any additional shares from and after the date hereof
to the Closing Date or create any options, warrants or rights for any
person to subscribe for or acquire any unissued shares in the capital
of the Company.
3.8 The Company is not a party to or bound by any agreement or
guarantee, warranty, indemnification, assumption or endorsement or any
other like commitment of the obligations, liabilities (contingent or
otherwise) or indebtedness of any other person, firm or corporation,
or of any products related to the Business.
3.9 The books and records of the Company fairly and correctly set out
and disclose in all material respects, in accordance with generally
accepted accounting principles, the financial position of the Company
as at the date hereof, and all material financial transactions of the
Company relating to the Business have been accurately recorded in such
books and records.
3.10 The Company Financial Statements present fairly the assets,
liabilities (whether accrued, absolute, contingent or otherwise) and
the financial conditions of the Company as at the date thereof and
there will not be, prior to the Closing Date, any increase in such
liabilities.
3.11(a) The entering into of this agreement and the consummation
of the transactions contemplated hereby will not result in the
violation of any of the terms and provisions of the constating
documents or bylaws of the Company or of any indenture,
instrument or agreement, written or oral, to which the Company or
the Principal Vendors may be a party;
(b) The entering into of this agreement and the consummation
of the transactions contemplated hereby will not, to the best of
the knowledge of the Company and the Vendors, result in the
violation of any law or regulation of the United States of
America or of any states in which they are resident or in which
the Business is or at the Closing Date will be carried on or of
any municipal bylaw or ordinance to which the Company or the
Business may be subject;
(c) This agreement has been duly authorized, validly executed
and delivered by the Company and the Vendor.
3.12 The Business has been carried on in the ordinary and normal
course by the Company since the date of the Company Financial
Statements and will be carried on by the Company in the ordinary and
normal course after the date hereof and up to the Closing Date.
3.13 No capital expenditures in excess of $25,000 have been made or
authorized by the Company since the date of the Company Financial
Statements and no capital expenditures in excess of $25,000 will be
made or authorized by the Company after the date hereof and up to the
Closing Date without the prior written consent of the Purchaser.
3.14 Except as disclosed in the Schedules hereto, the Company is not a
party to any written or oral employment, service or pension agreement,
and the Company does not have any employees who cannot be dismissed on
not more than one months notice without further liability.
3.15 Except as disclosed in the Schedules hereto, the Company does not
have outstanding any bonds, debentures, mortgages, notes or other
indebtedness, and the Company is not under any agreement to create or
issue any bonds, debentures, mortgages, notes or other indebtedness.
3.16 Except as disclosed in the Schedules hereto, the Company is not
the owner, lessee or under any agreement to own or lease any real property.
3.17 Except as disclosed in the Schedules hereto, the Company owns,
possesses and has good and marketable title to its undertaking,
property and assets, and without restricting the generality of the
foregoing, all those assets described in the balance sheet included in
the Company Financial Statements, free and clear of any and all
mortgages, liens, pledges, charges, security interests, encumbrances,
actions, claims or demands of any nature whatsoever or howsoever arising.
3.18 The Company has its property insured against loss or damage by
all insurable hazards or risks on a replacement cost basis and such
insurance coverage will be continued in full force and effect to and
including the Closing Date; to the best of the knowledge of the
Company and the Vendors, the Company is not in default with respect to
any of the provisions contained in any such insurance policy and has
not failed to give any notice or present any claim under any such
insurance policy in due and timely fashion.
3.19 Except as disclosed herein the Company does not have any
outstanding material agreements (including employment agreements)
contracts or commitment, whether written or oral, of any nature or
kind whatsoever, except:
(a) agreements, contracts and commitments in the ordinary
course of business;
(b) service contracts on office equipment;
(c) the employment, services and pension agreements described
in the Schedules hereto; and
(d) the lease described in the Schedules hereto.
3.20 Except as provided in the Schedules hereto, there are no actions,
suits or proceedings (whether or not purportedly on behalf of the
Company), pending or threatened against or affecting the Company or
affecting the Business, at law or in equity, or before or by any
federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign and neither the Company nor the Vendor are aware of any
existing ground on which any such action, suit or proceeding might be
commenced with any reasonable likelihood of success.
3.21 The Company is not in material default or breach of any
contracts, agreements, written or oral, indentures or other
instruments to which it is a party and there exists no state of facts
which after notice or lapse of time or both which would constitute
such a default or breach, and all such contracts, agreements,
indentures or other instruments are now in good standing and the
Company is entitled to all benefits thereunder.
3.22 The Company has the right to use all of the registered trade
marks, trade names and patents, both domestic and foreign, in relation
to the Business as set out in the Schedules hereto.
3.23 To the best of the knowledge of the Company and the Vendor, the
conduct of the Business does not infringe upon the patents, trade
marks, trade names or copyrights, domestic or foreign, of any other
person, firm or corporation.
3.24 To the best of the knowledge of the Company and the Vendor, the
Company is conducting and will conduct the Business in compliance with
all applicable laws, rules and regulations of each jurisdiction in
which the Business is or will be carried on, the Company is not in
material breach of any such laws, rules or regulations and is or will
be on the Closing Date fully licensed, registered or qualified in each
jurisdiction in which the Company owns or leases property or carries
on or proposes to carry on the Business to enable the Business to be
carried on as now conducted and its property and assets to be owned,
leased and operated, and all such licenses, registrations and
qualifications are or will be on the Closing Date valid and subsisting
and in good standing and that none of the same contains or will
contain any provision, condition or limitation which has or may have a
materially adverse effect on the operation of the Business.
3.25 All facilities and equipment owned or used by the Company in
connection with the Business are in good operating condition and are
in a state of good repair and maintenance.
3.26 The Company has no loans outstanding to Directors or Officers as
of April 30, 2001. No Loans or indebtedness is outstanding to any
other directors, former directors, and officers. Vendors and employees
of the Company or to any person or corporation not dealing at arm's
length with any of the foregoing.
3.27 The Company has made full disclosure to the Purchaser of all
aspects of the Business and has made all of its books and records
available to the representatives of the Purchaser in order to assist
the Purchaser in the performance of its due diligence searches and no
material facts in relation to the Business have been concealed by the
Company or the Vendors.
3.28 There are no material liabilities of the Company of any kind
whatsoever, whether or not accrued and whether or not determined or
determinable, in respect of which the Company or the Purchaser may
become liable on or after the consummation of the transaction
contemplated by this agreement, other than liabilities which may be
reflected on the Company Financial Statements, liabilities disclosed
or referred to in this agreement or in the Schedules attached hereto,
or liabilities incurred in the ordinary course or business and
attributable to the period since the date of the Company Financial
Statements, none of which has been materially adverse to the nature of
the Business, results of operations, assets, financial condition or
manner of conducting the Business.
3.29 The Articles, bylaws and other constating documents of the
Company in effect with the appropriate corporate authorities as at the
date of this agreement will remain in full force and effect without
any changes thereto as at the Closing Date.
3.30 The directors and officers of the Company are as follows:
Name Position:
3.31 No claim shall be made by the Purchaser against the Company or
the Vendors as a result of any misrepresentation or as a result of the
breach of any covenant or warranty herein contained unless the
aggregate loss or damage to the Purchaser exceeds $5,000.
4. COVENANTS. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser covenants with and represents and warrants to the
Vendors and the Company as follows and acknowledges that the Vendors
are relying upon such covenants, representations and warranties in
entering into this agreement:
4.1 The Purchaser has been duly incorporated and organized and is
validly subsisting under the laws of the State of Nevada and is in
good standing with respect to all filings required to be made by the
Nevada Secretary of State; it has the corporate power to own or lease
its properties and to carry on its business as now being conducted by
it; and it is duly qualified as a corporation to do business and is in
good standing with respect thereto in each jurisdiction in which the
nature of its business or the property owned or leased by it makes
such qualification necessary.
4.2 The authorized capital of the Purchaser consists of 50,000,000
common shares of which 27,020,490 common shares are currently issued
and outstanding as fully paid and non-assessable. (as of May 15, 2001)
4.3 No person, firm or corporation has any agreement or option,
including convertible securities, warrants or convertible obligations
of any nature, or any right or privilege (whether by law, pre-emptive
or contractual) capable of becoming an agreement or option for the
purchase, subscription, allotment or issuance of any of the unissued
shares in the capital of the Purchaser or of any securities of the
Purchaser except as follows:
Purchase or
Name Nature of Security Exercise Price Expiry Date
See Schedule "L"
4.4 The Purchaser will not, without the prior written consent of the
Vendors, issue any additional shares from and after the date hereof to
the Closing Date or create any options, warrants or rights for any
person to subscribe for any unissued shares in the capital of the
Purchaser, except upon the exercise of presently outstanding
convertible securities, rights, options or warrants, and except for
any shares to be issued pursuant to Article 6.
4.5 The directors and officers of the Purchaser are as follows:
Name Position
Xxxxxxx Xxx CEO/President
Xxxxxxx Xxxx Executive Vice President
Xxx Xxxxxxxx Director & VP International Sales
Xxxxx Xxxxxxx Secretary & Director
4.6 The Purchaser Financial Statements present fairly the assets,
liabilities (whether accrued, absolute, contingent or otherwise) and
the financial condition of the Purchaser as at the respective dates
thereof and there will not be, prior to the Closing Date, any increase
in such liabilities.
4.7 There have been no material adverse changes in the financial
position or condition of the Purchaser or damage, loss or destruction
materially affecting the business or property of the Purchaser since
the date of the Purchaser Audited Financial Statements.
4.8 The Purchaser has made full disclosure to the Company of all
material aspects of the Purchaser's business and has made all of its
books and records available to the representatives of the Company in
order to assist the Company in the performance of its due diligence
searches and no material facts in relation to the Purchaser's business
have been concealed by the Purchaser.
4.9 The Purchaser is not a party to or bound by any agreement or
guarantee, warranty, indemnification, assumption or endorsement or
any other like commitment of the obligations, liabilities (contingent
or otherwise) or indebtedness of any other person, firm or corporation.
4.10 Except as disclosed in the Schedules attached hereto, there are
no actions, suits or proceedings (whether or not purportedly on behalf
of the Purchaser), pending or threatened against or affecting the
Purchaser or affecting the Purchaser's business, at law or in equity,
or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign and the Purchaser is not aware of any existing
ground on which any such action, suit or proceeding might be commenced
with any reasonable likelihood of success.
4.11 The Purchaser's common shares are quoted on the NASD Over-the-
Counter Bulletin Board and the Purchaser are not in breach of any
regulation, by-law or policy of, or any of the terms and conditions of
its quotation on, the Bulletin Board applicable to the Purchaser or
its operations.
4.12 The business of the Purchaser now and until the Closing Date will
be carried on in the ordinary and normal course after the date hereof
and upon to the Closing Date and no material transactions shall be
entered into until the Closing Date without the prior written consent
of the Vendors.
4.13 The Purchaser has been assessed for federal and state income
taxes for all years to and including the fiscal year of the Purchaser
ended 31 December, 2000 and all taxes have been paid.
4.16 No liability, cost or expense will be incurred or payable by
the Purchaser in connection with the disposition of any of its properties.
4.17 All capital expenditures in excess of $25,000 will be approved
after the purchase date.
4.18 The Purchaser is not indebted to any of its directors or
officers nor are any of the Purchaser's directors or officers indebted
to the Purchaser.
4.19 The Purchaser has good and marketable title to its properties
and assets as set out in the Purchaser Audited Financial Statements
and Purchaser Interim Financial Statements and such properties and
assets are not subject to any mortgages, pledges, liens, charges,
security interests, encumbrances, actions, claims or demands of any
nature whatsoever or howsoever arising.
4.20 The Articles, Memorandum and any other constating documents
of the Purchaser in effect with the appropriate corporate authorities
as at the date of this agreement will not have been materially changed
as at the Closing Date.
4.21 There are no material liabilities of the Purchaser of any
kind whatsoever, whether or not accrued and whether or not determined
or determinable, in respect of which the Purchaser or the Company may
become liable on or after the consummation of the transaction
contemplated by this agreement, other than liabilities which may be
reflected on the Purchaser Audited Financial Statements or Purchaser
Interim Financial Statements, liabilities disclosed or referred to in
this agreement or in the Schedules attached hereto, or liabilities
incurred in the ordinary course or business and attributable to the
period since the date of the Purchaser Audited Financial Statements or
Purchaser Interim Financial Statements, none of which has been
materially adverse to the nature of the Purchaser's business, results
of operations, assets, financial condition or manner of conducting the
Purchaser's business.
4.22 (a) The entering into of this agreement and the
consummation of the transactions contemplated hereby will not
result in the violation of any of the terms and provisions of
the constating documents or bylaws of the Purchaser or of any
indenture, instrument or agreement, written or oral, to which the
Purchaser may be a party;
(b) The entering into of this agreement and the consummation
of the transactions contemplated hereby will not, to the best of
the knowledge of the Purchaser, result in the violation of any
law or regulation of Canada or of British Columbia or of any
municipal bylaw or ordinance to which the Purchaser or the
Purchaser's business may be subject;
(c) This agreement has been duly authorized, validly executed
and delivered by the Purchaser.
4.23 The Purchaser has no contracts with any officers, directors,
accountants, lawyers or others which cannot be terminated with not
more than one month's notice.
4.24 No claims shall be made by the Company or the Vendors against the
Purchaser as a result of any misrepresentation or as a result of the
breach of any covenant or warranty herein contained unless the
aggregate loss or damage to the Company or the Vendors exceeds $5,000.
5. CONDITIONS OF CLOSING
5.1 All obligations of the Purchaser under this agreement are
subject to the fulfillment, at or prior to the Closing Date, of the
following conditions:
(a) The respective representations and warranties of the
Vendors and the Company contained in this agreement or in any
Schedule hereto or certificate or other document delivered to the
Purchaser pursuant hereto shall be substantially true and correct
as of the date hereof and as of the Closing Date with the same
force and effect as though such representations and warranties
had been made on and as of such date, regardless of the date as
of which the information in this agreement or any such Schedule
or certificate is given, and the Purchaser shall have received on
the Closing Date certificates dated as of the Closing Date, in
forms satisfactory to counsel for the Purchaser and signed under
seal by the respective Vendors and by two senior officers of the
Company to the effect that their respective representations and
warranties referred to above are true and correct on and as of
the Closing Date with the same force and effect as though made on
and as of such date, provided that the acceptance of such
certificates and the closing of the transaction herein provided
for shall not be a waiver of the respective representations and
warranties contained in Article 3 or in any Schedule hereto or in
any certificate or document given pursuant to this agreement
which covenants, representations and warranties shall continue in
full force and effect for the benefit of the Purchaser;
(b) the Company shall have caused to be delivered to the
Purchaser either a certificate of an officer of the Company or,
at the Purchaser's election, an opinion of legal counsel
acceptable to the Purchaser's legal counsel, in either case, in
form and substance satisfactory to the Purchaser, dated as of the
Closing Date, to the effect that:
(i) the Company owns, possesses and has good and marketable
title to its undertaking, property and assets, and without
restricting the generality of the foregoing, those assets
described in the balance sheet included in the Company
Financial Statements, free and clear of any and all
mortgages, liens, pledges, charges, security interests,
encumbrances, actions, claims or demands of any nature
whatsoever and howsoever arising;
(ii) the Company has been duly incorporated organized and is
validly existing under the laws of the Republic of Hong Kong,
it has the corporate power to own or lease its properties
and to carry on its business that is now being conducted by
it and is in good standing with respect to filings with the
appropriate governmental authorities;
(iii) the issued and authorized capital of the Company
is as set out in this agreement and all of the issued and
outstanding shares have been validly issued as fully paid
and non-assessable;
(iv) all necessary approvals and all necessary steps and
corporate proceedings have been obtained or taken to permit
the Company Shares to be duly and validly transferred to and
registered in the name of the Purchaser; and
(v) the consummation of the purchase and sale contemplated
by this agreement, and specifically the transfer of the
Company Shares to the Purchaser, will not be in breach of
any laws of Nevada or the United States of America and, in
particular but without limiting the generality of the
foregoing, the execution and delivery of this agreement by
the Vendors and the Company has not breached and the
consummation of the purchase and sale contemplated hereby
will not be in breach of any laws of Nevada or the United
States or of any state in which a Vendor is resident or the
Company carries on business; and, without limiting the
generality of the foregoing, that all corporate proceedings
of the Company, its Vendors and directors and all other
matters which, in the reasonable opinion of counsel for the
Purchaser, are material in connection with the transaction
of purchase and sale contemplated by this agreement, have
been taken or are otherwise favourable to the completion of
such transaction.
(c) At the Closing Date there shall have been no materially
adverse change in the affairs, assets, liabilities, or financial
condition of the Company or the Business (financial or otherwise)
from that shown on or reflected in the Company Financial Statements.
(d) No substantial damage by fire or other hazard to the
Business shall have occurred prior to the Closing Date.
5.2 (a) In the event any of the foregoing conditions contained
in paragraph 5.1 hereof are not fulfilled or performed at or
before the Closing Date to the reasonable satisfaction of the
Purchaser, the Purchaser may terminate this agreement by written
notice to the Vendors and in such event the Purchaser shall be
released from all further obligations hereunder but any of such
conditions may be waived in writing in whole or in part by the
Purchaser without prejudice to its rights of termination in the
event of the non-fulfillment of any other conditions or conditions.
(b) In the event of default during the term, the Purchaser may
terminate this agreement by written notice to the Vendors and in
such event the Purchaser shall be released from all further
obligations hereunder but any of such conditions may be waived in
writing in whole or in part by the Purchaser without prejudice to
its rights of termination in the event of the non-fulfillment of
any other conditions or conditions.
5.3 All obligations of the Vendors under this agreement are
subject to the fulfillment, at or prior to the Closing Date, of the
following conditions:
(a) The representations and warranties of the Purchaser
contained in this agreement or in any Schedule hereto or
certificate or other document delivered to the Company and the
Vendors pursuant hereto shall be substantially true and correct
as of the date hereof and as of the Closing Date with the same
force and effect as though such representations and warranties
had been made on and as of such date, regardless of the date as
of which the information in this agreement or any such Schedule
or certificate is given, and the Vendors shall have received on
the Closing Date a certificate dated as of the Closing Date, in
form satisfactory to the Vendors and signed under seal by two
senior officers of the Purchaser, to the effect that such
representations and warranties referred to above are true and
correct on and as of the Closing Date with the same force and
effect as though made on and as of such date, provided that the
acceptance of such certificate and the closing of the transaction
herein provided for shall not be a waiver of the representations
and warranties contained in Article 4 or in any Schedule hereto
or in any certificate or document given pursuant to this
agreement which covenants, representations and warranties shall
continue in full force and effect for the benefit of the Vendors,
(b) The Purchaser shall have caused to be delivered to the
Vendors either a certificate of an officer of the Purchaser or,
at the Vendor's election, an opinion of legal counsel acceptable
to counsel to the Vendors, in either case, in form and substance
satisfactory to the Vendors, dated as of the Closing Date, to the
effect that:
(i) the Purchaser has been duly incorporated and organized
and is validly subsisting under the laws of the State of
Nevada, it has the corporate power to own or lease its
properties and to carry on its business that is now being
conducted by it and is in good standing with respect to all
filings with the appropriate corporate authorities in Nevada;
(ii) the issued and authorized capital of the Purchaser is
as set out in this agreement and all issued shares have been
validly issued as fully paid and non-assessable;
(iii) all necessary approvals and all necessary steps
and corporate proceedings have been obtained or taken to
permit the Purchaser Shares to be duly and validly allotted
and issued to and registered in the name of the Vendors;
(iv) the consummation of the purchase and sale contemplated
by this agreement, and specifically the issuance and
delivery of the Purchaser Shares to the Vendors in
consideration of the purchase of the Company Shares, will
not be in breach of any laws of Nevada or USA and, in
particular but without limiting the generality of the
foregoing, the execution and delivery of this agreement by
the Purchaser has not breached and the consummation of the
purchase and sale contemplated hereby will not be in breach
of any securities laws of Nevada or USA;
(v) the meeting of the board of directors of the Purchaser
was properly constituted and the two of the three members of
the board of directors of the Purchaser who are nominees of
the Company are validly appointed directors; and, without
limiting the generality of the foregoing, that all corporate
proceedings of the Purchaser, its Vendors and directors and
all other matters which, in the reasonable opinion of
counsel for the Company, are material in connection with the
transaction of purchase and sale contemplated by this
agreement, have been taken or are otherwise favourable to
the completion of such transaction.
(c) At the Closing Date there shall have been no materially
adverse change in the affairs, assets, liabilities, financial
condition or business (financial or otherwise) of the Purchaser
from that shown on or reflected in the Purchaser Audited
Financial Statements and the Purchaser Interim Financial Statements.
5.4 In the event that any of the conditions contained in
paragraph 5.3 hereof shall not be fulfilled or performed by the
Purchaser at or before the Closing Date to the reasonable satisfaction
of the Vendors then the Vendors shall have all the rights and
privileges granted to the Purchaser under paragraph 5.2, mutatis mutandis.
6. CLOSING ARRANGEMENTS
6.1 The closing shall take place on the Closing Date at the offices
the Purchaser.
6.2 On the Closing Date, upon fulfillment of all the conditions set
out in Article 5 which have not been waived in writing by the
Purchaser or by the Vendors, as the case may be, then:
(a) the Vendors shall deliver to the Purchaser:
(i) certificates representing all the Company Shares duly
endorsed in blank for transfer or with a stock power of
attorney (in either case with the signature guaranteed by
the appropriate official) with all eligible security
transfer taxes paid; and
(ii) the certificates and officer's certificate or opinion
referred to in paragraph 5.1.
(b) the Vendors and the Company shall cause the transfers of the
Company Shares into the name of the Purchaser, or its nominee, to
be duly and regularly recorded in the books and records of the
Company;
(c) the Purchaser shall deliver to the Vendors:
(i) share certificates representing the Purchaser Shares
duly endorsed with legends, acceptable to the Purchaser's
counsel, respecting restrictions on transfer as required by
or necessary under the applicable securities legislation of
the United States; and
(ii) the certificates and officer's certificate or opinion
referred to in paragraph 5.3.
7. SECURITIES REGULATORY APPROVAL
7.1 The terms of this agreement are subject to the approval of all
securities regulatory authorities having jurisdiction.
7.2 In the event that the any regulatory authority having
jurisdiction shall prevent the closing of the purchase and sale of the
Company Shares and the consummation of the transactions contemplated
in this agreement, neither the Purchaser nor its directors, officers,
legal counsel, servants or agents shall in any way be liable to any of
the Vendors or the Company in respect of any damages or losses
suffered by them as a result of such failure to give their approval
provided that the Purchaser has, with all due diligence and in good
faith, used its best efforts to obtain the approval of such regulatory
authorities.
8. GENERAL PROVISIONS
8.1 Time shall be of the essence of this agreement.
8.2 This agreement contains the whole agreement between the
parties hereto in respect of the purchase and sale of the Company
Shares and there are no warranties, representations, terms, conditions
or collateral agreements expressed, implied or statutory, other than
as expressly set forth in this agreement.
8.3 This agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted
assigns. The Purchaser may not assign this agreement without the
consent of the Company which consent may be unreasonably withheld.
8.4 Any notice to be given under this agreement shall be duly
and properly given if made in writing and by delivering or telecopying
the same to the addressee at the address as set out on page one of
this agreement. Any notice given as aforesaid shall be deemed to have
been given or made on, if delivered, the date on which it was
delivered or, if telecopied, on the next business day after it was
telecopied. Any party hereto may change its address for notice from
time to time by notice given to the other parties hereto in accordance
with the foregoing.
8.5 This agreement may be executed in one or more counter-parts,
each of which so executed shall constitute an original and all of
which together shall constitute one and the same agreement.
8.6 This agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the laws of
Nevada, and each of the parties hereto irrevocably attorns to the
jurisdiction of the Courts of Nevada.
SIGNATURE PAGE
SIGNED by
Xxxxxxx Xxx
for and on behalf of
SKYHUB ASIA HOLDINGS LIMITED
/s/ Xxxxxxx Xxx
SIGNED by
Xxxx Xxxx Fai
for and on behalf of
eVISION XXX.XXX
/s/ Xxxx Xxxx Fai
SIGNED by
Xxxx Xxxx Fai
for and on behalf of
eBANKER XXX.XXX
/s/ Xxxx Xxxx Fai
SIGNED by
Xxxxxxx Xxxx
for and on behalf of
5G WIRELESS COMMUNICATIONS INC.
/s/ Xxxxxxx Xxxx
