DATED THIS 17TH DAY OF
AUGUST, 2001
BETWEEN
NU SKIN
ENTERPRISES, INC.
(as VENDOR)
AND
KIOW XXX XXXX
(as PURCHASER)
SALE &
PURCHASE AGREEMENT
(in respect of 600,000 ordinary shares of RM1.00 each in
NU SKIN MALAYSIA HOLDINGS SDN. BHD.)
KHAW & PARTNERS
ADVOCATES& SOLICITORS
KUALA LUMPUR
THIS AGREEMENT is made this 17th day of August 2001
BETWEEN
NU SKIN ENTERPRISES, INC., a
company incorporated in the State of Delaware, United States of America and
having its principal place of business at 00 Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxx
00000, Xxxxxx Xxxxxx of America of the one part
AND
KIOW XXX XXXX, XXXXXXX
(NRIC No. 570723-08-6077) (Former NRIC No. 5276427) of 00, Xxxxx Xxxxxxx, Xxxxx-Xxx Xxxx,
Xxxxx Baru of the other part.
WHEREAS:-
| |
|
A) |
NSMH is a private limited
company incorporated in Malaysia on 3.7.2001. |
| |
|
B) |
As at the date of this Agreement:-
|
| |
|
|
i) |
the authorised share capital of NSMH is RM100,000.00 (Ringgit One Hundred
Thousand) divided into 100,000 (One Hundred Thousand) Ordinary NSMH
Shares; |
| |
|
|
ii) |
the issued and paid up share capital of NSMH is RM2.00 (Ringgit Two)
divided into 2 (Two) Ordinary NSMH Shares and held entirely by the
VENDOR; and |
| |
|
|
iii) |
NSMH is currently not carrying on any business. |
| |
|
A) |
NSM, a wholly owned subsidiary of NSMH,
is a private limited company incorporated in Malaysia in 19.9.1996
|
| |
|
B) |
As at the date of this Agreement:-
|
| |
|
|
i) |
the authorised share capital of NSM is RM100,000.00 (Ringgit One Hundred
Thousand) divided into 100,000 (One Hundred Thousand) Ordinary NSM
Shares; |
| |
|
|
ii) |
the issued and paid up share capital of NSM is RM2.00 (Ringgit Two)
divided into 2 (Two) Ordinary NSM Shares and held entirely by NSMH; and |
| |
|
|
iii) |
NSMH is currently not carrying on any business. |
| |
III. |
APPLICATION BY NSM
OF A DIRECT SALE LICENCE |
| |
|
A) |
NSM is desirous of
undertaking a multi-level direct sales business in Malaysia and is preparing an
application for submission to the MDTCA for the issue by the MDTCA to NSM of a
DS Licence. |
| |
|
B) |
To fulfil the equity
requirements set out by the MDTCA pursuant to the DS Guidelines, the VENDOR is
willing to restructure NSMH (as the holding company of NSM) and to divest, in
the manner described in Recital III(C), its right to
70% (Seventy percent) of its effective equity shareholdings in NSM to
Malaysians, including 30% (Thirty percent) thereof to Bumiputera
Malaysian. |
| |
|
C) |
The VENDOR intends,
by this Agreement, to divest to the PURCHASER, its right to
40% (Forty Percent) of the share capital of NSMH as restructured. As the
VENDOR is currently identifying prospective Malaysian Bumiputera investor(s)
with a view to divesting the 10% Block to such investor(s), the PURCHASER
understands and accepts that, following the completion of the sale and purchase
of the Sale Shares, his equity interest in the enlarged share capital of NSMH
will be diluted and so as to maintain the PURCHASER’s shareholdings in NSMH
at 40% (Forty Percent), the VENDOR is willing to divest further Ordinary
NSMH Shares to the PURCHASER [or his nominee(s)] upon such terms and conditions
to be agreed upon. The VENDOR is currently in discussion with LEMBAGA TABUNG
ANGKATAN TENTERA with a view to its being the Malaysian Bumiputera investor to
take up the 10% Block pursuant to the proposed divestment. |
| |
|
D) |
As currently envisaged,
NSM’s equity restructuring exercise for the purposes of compliance with the
DS Guidelines will encompass the following:- |
| |
|
|
i) |
following the grant by MTDCA
of the DS Approval, the VENDOR will do the following acts and things in the following
order:- |
| |
|
|
|
|
a) |
cause NSMH to increase its authorised share capital to
RM5,000,000.00 (Ringgit Five Million) divided into 2,500,000 (Two
Million and Five Hundred Thousand) Ordinary NSMH Shares and 2,500,000
(Two Million and Five Hundred Thousand) ICPS; |
| |
|
|
|
|
b) |
cause NSMH to increase its issued share capital to RM2,500,000.00
(Ringgit Two Million and Five Hundred Thousand) divided into 2,500,000
(Two Million and Five
Hundred Thousand) ICPS, all of which are to be
subscribed for by the VENDOR at par payable upon allotment; |
| |
|
|
|
|
c) |
cause NSM to increase its authorised share capital to
RM5,000,000.00 (Ringgit Five Million) divided into 5,000,000 (Five
Million) Ordinary NSM Shares; |
| |
|
|
|
|
d) |
cause NSM to increase its issued share capital to RM2,500,000.00
(Ringgit Two Million and Five Hundred Thousand) divided into 2,500,000
(Two Million and Five Hundred Thousand) Ordinary NSM Shares, all of which are to
be subscribed for by NSMH at par payable upon allotment; |
| |
|
|
|
|
e) |
convert 1,500,000 (One Million and Five Hundred Thousand) ICPS into 1,500,000
(One Million and Five Hundred Thousand) Ordinary NSMH Shares; |
| |
|
|
|
|
f) |
complete in accordance with the provisions of this Agreement, the sale by the
VENDOR to the PURCHASER of the Sale Shares; and |
| |
|
|
|
|
g) |
complete in accordance with the provisions of the SPA(Nadzmi), the sale
by the VENDOR to Dato’ Nadzmi of 450,000 (Six Hundred Thousand)
Ordinary NSMH Shares comprising 30% (Thirty Percent) of NSMH’s total
issued share capital immediately upon the completion of SPA(Nadzmi). |
| |
|
|
ii) |
following the fulfilment
of all of the conditions precedent contained in SPA(OBI), the VENDOR will do the
following acts and things in the following order:- |
| |
|
|
|
|
a) |
convert 750,000 (Seven Hundred and Fifty Thousand) ICPS held by it
in NSMH into 750,000 (Seven Hundred and Fifty Thousand) Ordinary NSMH
Shares; |
| |
|
|
|
|
b) |
complete, in accordance
with the provisions of SPA(OBI), the sale by the VENDOR to the Other Bumiputera
Investor of the 10% Block; and
|
| |
|
|
|
|
c) |
divest to the PURCHASER [or his nominee(s)], a further 300,000
(Three Hundred Thousand) Ordinary NSMH Shares so as to maintain his equity
shareholding interest in NSMH at 40% (Forty Percent) of NSMH’s
enlarged share capital. |
| |
IV. |
AGREEMENT FOR SALE AND PURCHASE OF SALE SHARES |
| |
The PURCHASER wishes to purchase and the VENDOR is willing to sell to the PURCHASER,
the Sale Shares on a willing buyer and willing seller basis at the Purchase
Price upon the terms and subject to the conditions hereinafter appearing. |
| |
Prior to or simultaneously with the execution of this Agreement, the VENDOR will enter
into the SPA(Nadzmi) whereby the VENDOR will sell to Dato’ Nadzmi, upon the
terms and subject to the conditions therein appearing, 450,000 (Four
Hundred and Fifty Thousand) Ordinary NSMH Shares. |
| |
|
NOW IT IS HEREBY
AGREED as follows:- |
| |
1. |
DEFINITIONS &
INTERPRETATION |
| |
In this Agreement, unless the context otherwise requires, the following expressions
shall have the meanings set forth opposite such expressions:- |
| |
|
"Completion" |
: |
the completion in
accordance with the provisions of this Agreement of the sale by the VENDOR and
the purchase by the PURCHASER of the Sale Shares |
| |
|
"Completion Confirmation" |
: |
the confirmation
(substantially in the form of "Annexure 1") signed by the Parties upon
Completion of the Sale Shares pursuant to Clause 4.3 |
| |
|
"Completion Date" |
: |
the date stipulated by the
VENDOR and occurring during the Completion Period on which Completion takes
place |
| |
|
"Completion Period" |
: |
a period of 30
(Thirty) days commencing from the date on which all of the Conditions Precedent
are fulfilled in accordance with the provisions of this Agreement |
| |
|
"Conditional Period" |
: |
a period of 3
(Three) calendar months commencing from the date of this Agreement and expiring
on a date corresponding to the date of this Agreement (or such longer period as
the Parties may mutually agree upon in writing) |
| |
|
"Conditions Precedent" |
: |
the conditions set forth in Clauses 2.1.1 to 2.1.4 |
| |
|
"DS Application" |
: |
the application by NSM to MDTCA (in terms acceptable to NSM) for the grant of a
DS Licence pursuant to the Direct Sales Xxx 0000 and the DS
Guidelines |
| |
|
"DS Approval" |
: |
the approval of MDTCA
described in Clause 2.1.1 and includes the reply to an appeal lodged
therefor |
| |
|
"DS Guidelines" |
: |
the Guidelines for the
Application of a Direct Sale Licence and the Guidelines on Foreign Participation
in Wholesale and Retail Trade |
| |
|
"DS Licence" |
: |
a multi-level direct sales
licence issued pursuant to the Direct Sales Xxx 0000 |
| |
|
"Dato' Nadzmi" |
: |
DATO' MOHD NADZMI BIN MOHD
SALLEH (NRIC No. 540501-03-5293) of Xx. 00-0, Xxxxx XXX0/0X, Xxxxxxx Xxxxxxxx
Xxxxxx, Xxxxxx Xxxxxxxxx Xxxxxxx, 00000 Xxxxxxxx Xxxx, Xxxxxxxx Darul
Ehsan |
| |
|
"Effective Clauses" |
: |
Clauses 1, 2 and 6 to 19 |
| |
|
"ICPS" |
: |
an irredeemable
convertible non voting preference share having a par value of RM1.00 (Ringgit
One) each in NSMH |
| |
|
"Indebtedness" |
: |
the Purchase Price and
all interest accrued thereon or any part thereof remaining unpaid by the
PURCHASER from time to time to the VENDOR |
| |
|
"MDTCA" |
: |
Ministry of Domestic Trade & Consumer Affairs |
| |
|
"NSM" |
: |
NU SKIN (MALAYSIA) SDN. BHD. (Company No. 402787-V), a company incorporated in
Malaysia under the Companies Xxx 0000 and having its registered address at x/x
0xx Xxxxx, Xxxxxx Xxxxxxxx, Xx. 00, Xxxxx Xxxx Xxxxxx, 00000 Xxxxx
Xxxxxx |
| |
|
"NSMH" |
: |
NU SKIN MALAYSIA HOLDINGS SDN. BHD. (Company No. 552189-P), a company
incorporated in Malaysia under the Companies Xxx 0000 and having its registered
address at x/x 0xx Xxxxx, Xxxxxx Xxxxxxxx, Xx. 00, Xxxxx Xxxx Xxxxxx, 00000
Xxxxx Xxxxxx |
| |
|
"Ordinary NSM Share" |
: |
an ordinary share having a par value of RM1.00 (Ringgit One) in NSM |
| |
|
"Ordinary NSMH Share" |
: |
an ordinary share having a par value of RM1.00 (Ringgit One) in NSMH |
| |
|
"Other Bumiputera Investor" |
: |
such prospective Malaysian Bumiputera
investor(s) (other than Dato’ Nadzmi) as is identified by and as is
acceptable to the VENDOR to acquire the 10% Block |
| |
|
"Parties" |
: |
the VENDOR and the PURCHASER |
| |
|
"Party" |
: |
either of the Parties |
| |
|
"PURCHASER" |
: |
KIOW XXX XXXX, XXXXXXX above described |
| |
|
"Purchase Price" |
: |
RM (Ringgit)
) |
| |
|
"Sale Shares" |
: |
600,000 (Six Hundred Thousand) Ordinary NSMH Shares to
be held by the VENDOR as the beneficial owner thereof following the conversion
of ICPS referred to in Recital III(D)(i)(e) |
| |
|
"SPA (Nadzmi)" |
: |
the sale and purchase agreement for the sale by the VENDOR and the purchase by
Dato’ Nadzmi of 450,000 (Four Hundred and Fifty Thousand) Ordinary
NSMH Shares described in Recital V and includes such variations and
modifications as may be agreed between the parties thereto |
| |
|
"SPA (OBI)" |
: |
the sale and purchase agreement for the sale by the VENDOR and the purchase by
the Other Bumiputera Investor of the 10% Block and includes such variations and
modifications as may be agreed between the parties thereto |
| |
|
"VENDOR" |
: |
NU SKIN ENTERPRISES, INC. above described |
| |
|
1.2.1 |
The Annexures hereto shall
be taken, read and construed as essential parts of this Agreement. The headings
in this Agreement are inserted for convenience of reference only and shall not
be taken, read and construed as essential parts of this Agreement. |
| |
|
1.2.2 |
All references to
Annexures, Recitals and Clauses are to be construed as references to the
annexures, recitals and clauses of this Agreement. All references to provisions
of statutes include such provisions as modified, re-certified or re-enacted. All
references to this Agreement include this Agreement as amended or modified from
time to time by written agreement between the Parties. All references to a
natural person shall include such person’s heirs, personal representatives,
successors-in-title and permitted assigns. All references to a company shall
include such company’s successors-in-title and permitted assigns.
|
| |
|
1.2.3 |
Except where the context
otherwise requires, words applicable to natural persons include any body of
persons, company, corporation, firm or partnership corporate or incorporate and
vice versa; words importing the masculine gender shall include the feminine and
neuter genders and vice versa; words importing the singular number shall include
the plural number and vice versa.
|
| |
|
1.2.4 |
Where two or more persons
or parties are included or comprised in any expression, agreements, covenants,
terms, stipulations and undertakings expressed to be made by or on the part of
such persons shall, unless otherwise provided herein, be deemed to be made by
and be binding upon such persons jointly and severally.
|
| |
|
1.2.5 |
In computing time for the
purposes of this Agreement, unless the contrary intention appears, a period of
days from the happening of an event or the doing of any act or thing shall be
deemed to be exclusive of the day on which the event happens or the act or thing
is done and if the last day of the period is a weekly or public holiday, the
period shall include the next following day which is not a weekly or public
holiday.
|
| |
The provisions of this Agreement (save for the Effective Clauses) are conditional
upon the fulfilment of the following conditions within the Conditional Period:- |
| |
|
2.1.1 |
the grant by MDTCA to NSM
of its approval for the issue of a DS Licence upon such terms and conditions
acceptable to NSM and the VENDOR;
|
| |
|
2.1.2 |
the subscription by the
VENDOR of 2,500,000 (Two Million and Five Hundred Thousand) ICPS in NSMH
at par payable in full upon allotment;
|
| |
|
2.1.3 |
the subscription by NSMH
of 2,500,000 (Two Million and Five Hundred Thousand) Ordinary NSM Shares
at par to be paid in full upon allotment; and
|
| |
|
2.1.4 |
the execution by the
VENDOR, the PURCHASER and Dato’ Nadzmi of a Shareholders Agreement (as
holders of NSMH Shares) in terms acceptable to the VENDOR.
|
| |
2.2 |
Fulfilment of the Conditions Precedent |
| |
|
2.2.1 |
The VENDOR shall use its
best endeavours to procure, at its own costs and expense, the fulfilment of the
Conditions Precedent described in Clause 2.1.2 and 2.1.3.
|
| |
|
2.2.2 |
The VENDOR shall procure
NSM to submit the DS Application to MDTCA. The PURCHASER shall use its best
endeavours to assist NSM to obtain, in a timely manner, the DS Approval and the
issue of the DS Licence.
|
| |
|
2.2.3 |
Each Party shall promptly
sign and do all documents, acts and things required by applicable laws,
regulations and guidelines to be signed and done by such Party to procure the
fulfilment with all due speed of the Conditions Precedent AND, if so requested
by such Party, the other Party shall, upon written request, provide such
information and particulars as may be necessary or reasonably required to
procure the fulfilment of the Conditions Precedent.
|
| |
2.3 |
Approvals deemed unacceptable |
| |
The DS Approval shall be deemed not to be granted and the Conditions Precedent shall
be deemed to be unfulfilled in the following cases:- |
| |
|
2.3.1 |
if MDTCA does not grant the DS Approval within the Conditional Period; and
|
| |
|
2.3.2 |
if MDTCA grants (within the Conditional Period) the DS Approval upon terms
and/or conditions which are unacceptable to NSM and the VENDOR and upon any
appeal thereof (lodged upon terms and grounds deemed appropriate by NSM and the
VENDOR), the terms and/or conditions of the DS Approval are not modified or are
modified in such manner that they remain unacceptable to NSM and the VENDOR.
|
| |
2.4. |
Waiver & non-fulfilment
of Conditions Precedent |
| |
|
2.4.1 |
The VENDOR may (but shall not be obliged to) waive or modify (by written
agreement between the Parties) any of the Conditions Precedent referred to in
Clauses 2.1.1 to 2.1.4 whereupon the Condition Precedent concerned shall be
deemed to be (as applicable) deleted or modified as aforesaid.
|
| |
|
2.4.2 |
If all or any of the Conditions Precedent (as shall not have been waived
pursuant to the foregoing provisions) are not fulfilled within the Conditional
Period, this Agreement shall (unless extended by written consent between the
Parties) become null and void and the respective obligations of the Parties
hereunder (including the Effective Clauses) shall wholly cease and no Party
shall have any claim hereunder against the other Party save in respect of any
antecedent breach of any provision of this Agreement.
|
| |
3. |
AGREEMENT FOR SALE &
PURCHASE OF THE SALE SHARES |
Following
the fulfilment of the Conditions Precedent, the VENDOR (as the beneficial owner
of the Sale Shares) shall sell to the PURCHASER and the PURCHASER shall purchase
from the VENDOR on a willing buyer and willing seller basis, the Sale Shares at
the Purchase Price and upon the terms and conditions herein set forth:-
| |
3.1 |
free from all charges, liens, equities, third party
interest or other encumbrances whatsoever; and |
| |
3.2 |
with all rights, benefits
and advantages attached thereto including all dividends and other distributions
which may be declared, made or paid in respect of the Sale Shares subsequent to
the Completion Date. |
| |
4. |
COMPLETION OF THE SALE &
PURCHASE OF SALE SHARES |
| |
If the Conditions Precedent are fulfilled (in accordance with the provisions of
this Agreement) within the Conditional Period, completion of the sale and
purchase hereunder of the Sale Shares shall take place simultaneously with the
completion of SPA(Nadzmi) on the Completion Date at Khaw & Partners’
office at 0xx Xxxxx, Xxxxxx Xxxxxxxx, Xx. 00, Xxxxx Xxxx Xxxxxx, 00000 Xxxxx
Xxxxxx (or such other place acceptable to the PURCHASER as the VENDOR may
nominate. |
| |
4.2 |
VENDOR's obligations on Completion |
Unless the Parties otherwise agree in writing, the VENDOR shall, at Completion:-
| |
|
4.2.1 |
convert 1,500,000 (One Million and Five Hundred Thousand) ICPS in NSMH
held by the VENDOR into 1,500,000 (One Million and Five Hundred Thousand)
Ordinary NSMH Shares;
|
| |
|
4.2.2 |
cause NSMH to issue directly to the PURCHASER, such number of Ordinary NSMH
Shares (as converted) as is equivalent to the Sale Shares;
|
| |
|
4.2.3 |
cause NSMH to deliver to the PURCHASER, the original share certificate(s) to the
Sale Shares issued in the name of the PURCHASER; and
|
| |
|
4.2.4 |
cause the appointment of the PURCHASER as a director of NSMH and NSM (subject to
the PURCHASER’s delivery to the VENDOR not less than 7 (Seven) days
prior to the Completion Date, of 3 (Three) copies of Forms 48A of the
Companies Regulations 1966 duly completed and sworn by the PURCHASER for his
appointment as director of NSMH and NSM
|
| |
4.3 |
Completion Confirmation |
| |
|
4.3.1 |
Following and subject to Completion, the Parties shall execute the Completion Confirmation.
|
| |
|
4.3.2 |
The execution by a Party of the Completion Confirmation pursuant to Clause 4.3.1
shall be without prejudice to the other Party’s rights and remedies in this
Agreement against the first mentioned Party none of which rights shall be deemed
to be thereby waived or varied by the second mentioned Party.
|
| |
The VENDOR shall also execute and do, all such other documents, acts and things (if
any) as the PURCHASER may reasonably require of the VENDOR to perfect the right,
title and interest of the PURCHASER in and to the Sale Shares. |
| |
4.5 |
No Partial Completion |
Unless the VENDOR otherwise agrees in writing:-
| |
|
4.5.1 |
the PURCHASER shall not be entitled to complete the purchase of some only of the
Sale Shares and the failure by the PURCHASER to complete the purchase hereunder
of any number of the Sale Shares shall accordingly be construed as a failure to
complete in respect of all of the Sale Shares; and
|
| |
|
4.5.2 |
the VENDOR shall be entitled, notwithstanding any provisions to the contrary
herein, to terminate this Agreement if the PURCHASER fails to complete the
purchase of all of the Sale Shares.
|
| |
5.1 |
Payment of the Purchase Price |
| |
|
5.1.1 |
The PURCHASER acknowledge that such part of the Purchase Price remaining unpaid
by the PURCHASER to the VENDOR on the Completion Date shall constitute a valid
debt payable by the PURCHASER to the VENDOR upon demand by the VENDOR. At the
request of the PURCHASER, the VENDOR agrees to the application by the PURCHASER
of all dividends and other cash distributions (if any) made by NSMH from time to
time towards payment of the Indebtedness.
|
| |
|
5.1.2 |
The PURCHASER agrees and undertakes with the VENDOR that the PURCHASER shall:-
|
| |
|
|
i) |
pay the Indebtedness to the VENDOR upon demand by the VENDOR; and |
| |
|
|
ii) |
until the Indebtedness shall be paid in full by the PURCHASER to the VENDOR,
direct and authorise NSMH to pay directly to the VENDOR, all such dividends and
other cash distributions (if any) as are payable by NSMH to the PURCHASER. |
| |
|
5.2.1 |
The PURCHASER shall pay to the VENDOR, interest on such part of the Purchase
Price remaining unpaid from time to time at the rate of 12% (Xxxxx
Percent) per annum calculated from the due date for payment of the Purchase
Price and until the date of full payment thereof.
|
| |
|
5.2.2 |
The PURCHASER agrees that any payment made by or on behalf of the PURCHASER
towards payment of the Indebtedness shall firstly be utilised towards settlement
of the interest charged pursuant to Clause 5.2.1.
|
| |
5.3. |
Indebtedness as debt |
| |
The PURCHASER acknowledges that such part of the Indebtedness as remains unpaid from
time to time by the PURCHASER to the VENDOR shall constitute a valid debt
payable by the PURCHASER to the VENDOR in accordance with the provisions hereof
and all such other documents as may be agreed upon by the Parties with or
without others. |
| |
Until the full payment of Indebtedness to the VENDOR, the PURCHASER shall create in
favour of and grant to the VENDOR and/or the VENDOR’s nominee, such
security interest (including a charge) and powers and rights over inter alia the
Sale Shares and execute and perfect such security documentation (including a
memorandum of charge in such terms and conditions acceptable to the VENDOR) as
the VENDOR may require to secure the payment of the Indebtedness. |
| |
A certificate duly signed by the VENDOR stating the amount of the Indebtedness
payable by the PURCHASER to the VENDOR from time to time and at any time shall
be final, conclusive and binding on the PURCHASER and shall not, in the absence
of manifest error, be questioned on any account. |
| |
6. |
PARTIES' RESPECTIVE WARRANTIES |
The VENDOR hereby represents and warrants to the PURCHASER that:-
| |
|
6.1.1 |
the statements in Recital I, II, III(A) and V are true and accurate;
|
| |
|
6.1.2 |
the VENDOR will, at Completion, be the beneficial owner of the Sale Shares; and
|
| |
|
6.1.3 |
the Sale Shares are free from all charges, liens, equities, third party interest
or other encumbrances whatsoever.
|
| |
6.2. |
PURCHASER's Warranties |
The PURCHASER hereby represents and warrants to the PURCHASER that:-
| |
|
6.2.1 |
the PURCHASER is not a bankrupt and has not committed any act of bankruptcy;
|
| |
|
6.2.2 |
the PURCHASER has not committed any criminal offence;
|
| |
|
6.2.3 |
the PURCHASER and his legal, financial and other advisors (if any) have the
financial and business experience to make an informed decision for an investment
and acquisition of the Sale Shares and the PURCHASER together with such advisors
has evaluated the feasibility of an acquisition of or investment in the Sale
Shares;
|
| |
|
6.2.4 |
the PURCHASER and his legal, financial and other advisors (if any) have had
ample opportunity to investigate the proposed business of NSMH and NSM and to
review all relevant documents and to ask all such questions of such persons and
representatives of the VENDOR as the PURCHASER and its advisors consider
necessary for purposes of making an informed decision for an investment in and
acquisition of the Sale Shares;
|
| |
|
6.2.5 |
the PURCHASER has determined on the basis of his own investigation that the
Purchase Price is fair and a reasonable valuation of the Sale Shares;
|
| |
|
6.2.6 |
except for the representations and warranties contained in this Agreement, the
PURCHASER is not relying on any representation or warranty (whether given by the
VENDOR or otherwise) in making his decision to invest in and to acquire the Sale
Shares; and
|
| |
|
6.2.7 |
that the PURCHASER is purchasing the Sale Share for his own account, for
investment purposes only, not for the account of any other person and not with a
view to the distributions, assignment or resale thereof to others.
|
| |
6.3 |
Subsistence of warranteis |
| |
The representations, warranties and agreements given or made by the respective
Parties under this Agreement shall remain in full force and effect and shall
continue to subsist hereafter notwithstanding Completion which will take place
on the basis of the statements made herein. |
| |
6.4. |
Breach of warranty before Completion |
| |
If prior to Completion, any of the representations and warranties on the part of a
Party have not been carried out or complied with or are in any material respects
untrue or incorrect (and in respect of any breach which is capable of remedy,
such Party have failed to remedy such breach within 14 (Fourteen) days
after the other Party’s written notice to the first mentioned Party
requiring the same to be remedied) the second mentioned Party shall be entitled
by notice in writing to the first mentioned Party to terminate this Agreement
(without prejudice to the second mentioned Party’s rights and remedies at
law and hereunder in respect of the first Party’s misrepresentation and/or
breach of warranty). |
| |
Any notice or request with reference to this Agreement shall be in writing signed by
the Party by whom it is served or by its solicitors and shall be deemed to be
sufficiently served or given for all purposes herein on the Party to whom it is
served if it is left by hand at or sent by commercial courier, registered post
or facsimile (with copy by hand or commercial courier or ordinary or registered
post) to (as applicable) the address of the Party to whom it is sent as set out
below or the registered office for the time being of such Party or such other
address as one Party may from time to time notify to the other Party in writing. |
| |
|
7.1.1 |
to the VENDOR
NU SKIN ENTERPRISES, INC.
00 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000,
Xxxxxx Xxxxxx of America
Telefax: 00 1 801 345 3899
Attn: ............................
|
| |
|
7.1.2 |
to the PURCHASER
NU SKIN ENTERPRISES, INC.
KIOW XXX XXXX, XXXXXXX
5-C, Xxxx Xx Xxxxx
000, Xxxxx Xxx Xxxx
Xxxx Xxxx
Telefax: 00 852 2898 8271
|
| |
|
7.2.1 |
by facsimile (and confirmed by the delivery of a copy thereof by hand or
commercial courier or ordinary or registered post) shall be deemed to have been
served and received upon completion of the effective transmission of such notice
and a written record of the transmission is printed out from the sender’s
facsimile machine;
|
| |
|
7.2.2 |
by ordinary or registered post within Malaysia shall be deemed to have been
served and received on the 3rd (Third) day occurring after the date on
which it is posted;
|
| |
|
7.2.3 |
by an ordinary or registered post outside Malaysia shall be deemed to have been
served and received on the 10th (Tenth) day occurring after the date on
which it is posted;
|
| |
|
7.2.4 |
by hand or commercial courier shall be deemed to have been served at the time of
delivery of the notice.
|
Each
Party shall bear its own solicitors’ costs of and incidental to this
Agreement.
| |
8.2 |
Stamp duty on purchase of Sale Shares |
| |
As the intended purchaser hereunder of the Sale Shares, the PURCHASER shall bear
the stamp duty chargeable on this Agreement and its acquisition of the Sale
Shares (if any) and all other relevant documents incidental to this Agreement
and, if relevant, any penalties for late stamping. |
| |
|
Time wherever mentioned shall be
the essence of this Agreement |
| |
10. |
AUTHORITY TO EXECUTE AGREEMENT |
| |
|
Each of the Parties warrants to
the other Party:- |
| |
|
10.1 |
that it has (as
applicable) the power, authority and capacity to enter into and to execute and
deliver this Agreement and to carry the terms hereof into effect;
and |
| |
|
10.2 |
that it agreements and
undertakings as contained in this Agreement constitute legal, valid and binding
obligations on it in accordance with the provisions herein. |
| |
11. |
GOVERNING LAW &
JURISDICTION |
This
Agreement is governed by the laws of Malaysia and subject to Clause 12, the
Parties submit themselves and their assets to the non-exclusive jurisdiction of
the courts in Malaysia.
| |
12.1 |
Reference to Arbitration |
| |
Any dispute or difference which may arise between the Parties at any time hereafter
whether during the continuance in force of this Agreement or upon or after its
termination, touching any matter or thing herein contained or the operation or
construction of this Agreement or any matter or thing in any way connected with,
arising from or in relation to this Agreement or the rights, duties, liabilities
of the Parties hereunder shall be finally settled by arbitration in accordance
with the United Nations Commission on International Trade Law Arbitration Rules
1976. |
| |
12.2 |
Arbitral Proceedings |
| |
A reference to arbitration shall be to 3 (Three) arbitrators. The
arbitration shall be held in Provo, Utah, United States of America and the
language to be used in the arbitral proceedings shall be English. |
| |
Pending the establishment of the arbitral tribunal, the Parties may apply to the courts
in Malaysia (which shall be a non-exclusive jurisdiction) for the grant of
interim injunctions and orders for the protection and preservation of property
subject of or relating to this Agreement. |
Knowledge
or acquiescence by any Party of or in any breach of any of the terms, conditions
or covenants herein contained shall not operate as or be deemed to be a waiver
of such terms, conditions or covenants or any of them and notwithstanding such
knowledge or acquiescence, such Party shall be entitled to exercise such
Party’s rights under this Agreement and to require strict performance by
the other Parties of the terms, conditions and covenants herein.
Any
amendment or alteration to or modification of any part of this Agreement shall
be conferred upon and determined in writing by mutual consultation between the
Parties.
Any
term, condition, stipulation, provision, covenant or undertaking in this
Agreement which is illegal, void, prohibited or unenforceable shall be
ineffective to the extent of such illegality, voidness, prohibitions or
unenforceability without invalidating the remaining provisions hereof, and any
such illegality, voidness, prohibition or unenforceability shall not invalidate
or render illegal, void or unenforceable any other term, condition stipulation,
provision, covenant or undertaking herein contained.
| |
16. |
ENTIRETY OF AGREEMENT |
This
Agreement constitutes the sole and entire agreement between the Parties with
respect to the subject matter hereof and supersedes all previous proposals,
negotiations and understandings whether written or oral between the Parties with
respect to the subject matter hereof.
No
Party shall be entitled to assign such Party’s rights and/or obligations
hereunder without the prior written consent of the other Party.
This
Agreement shall be binding on the successors-in-title and permitted assigns of
the VENDOR and the heirs, personal representatives and permitted assigns of the
PURCHASER.
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and any of the Parties may
execute this Agreement by signing any such counterpart.
IN WITNESS
WHEREOF the Parties have hereunto executed this Agreement the day and
year first above written.
SIGNED BY
D. XXXXXXX XXXXX
for and on behalf of
NU SKIN ENTERPRISES, INC.
the VENDOR aforesaid
in the presence of:-
.......................................
signature of witness
Name:
Passport No:
SIGNED BY
KIOW XXX XXXX
the PURCHASER aforesaid
in the presence of:-
)
.............................................
Kiow Xxx Xxxx
.......................................
signature of witness
Name:
Passport No:
This is the execution page of the Sale and Purchase Agreement dated the
day of 2001 between NU
SKIN ENTERPRISES, INC. and KIOW XXX XXXX, XXXXXXX in respect of the sale and purchase of shares in NU SKIN
MALAYSIA HOLDINGS SDN. BHD.
"Annexure 1" to the Sale and
Purchase Agreement dated the day of
2001 between NU SKIN ENTERPRISES, INC. and
KIOW XXX XXXX, XXXXXXX
FORM OF
COMPLETION CONFIRMATION
COMPLETION
CONFIRMATION
issued pursuant to Clause 4.3 of the
Sale and Purchase Agreement dated ........................ ("SPA") between:-
i) NU SKIN ENTERPRISES, INC ("VENDOR"); and
ii) KIOW XXX XXXX, XXXXXXX ("PURCHASER")
1.
We, the parties to the
SPA hereby CONFIRM that Completion (as defined in the SPA) has taken
place in accordance with the provisions of the SPA on the date of this
confirmation.
2.
The PURCHASER's CONFIRMS:-
2.1
its receipt from the VENDOR
of the original share certificate(s) to the Sale Shares issued in the name
of the PURCHASER; and
2.2
that the PURCHASER has been appointed as a director of NSMH and NSM.
3.
All expressions used in this Completion Confirmation and defined in the SPA shall have the meanings
given to them by the SPA.
Dated this day of
2001
VENDOR:-
D. XXXXXXX XXXXX
for and on behalf of
NU SKIN ENTERPRISES, INC. |
PURCHASER:-
KIOW XXX XXXX, XXXXXXX |
