EXHIBIT 10.8
Agreement dated on December 15, 2003 for the Sale and Purchase of Shares in
Beijing Linkhead Technologies Co., Ltd
AGREEMENT AMONG
(1) PACIFICNET STRATEGIC INVESTMENT HOLDINGS LIMITED AND PACIFICNET INC.
(2) BEIJING LINKHEAD TECHNOLOGIES LIMITED
(3) XXXXXX HOLDING GROUP INC. AND
GREAT MIND CONSULTANTS LIMITED, AND
BEIJING XIN DA BEI TECHNOLOGIES, LTD
(4) XX. XXX BIN
FOR THE SALE AND PURCHASE OF SHARES IN
BEIJING LINKHEAD LIMITED
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THIS AGREEMENT is made the 15th of December, 2003.
AMONG:
(1) PACIFICNET STRATEGIC INVESTMENT HOLDINGS LIMITED (CHINESE COMPANY
NAME), a company existing under the laws of the British Virgin
Islands whose principal place of business is at Xxxx 0000, Xxxx Xxxx
Xxxxx, 000 Xxxxxxxxx Xxxx Xxxx, Xxxx Xxxx. (hereafter referred as
the "PURCHASER"). The Purchaser is a wholly owned subsidiary of
PacificNet Inc. ("PACT"), a company incorporated under the laws of
the State of Delaware in the United States of America whose
principal office is situate at 000 Xxxx Xxxxxxx Xxxx, Xxxxx 000,
Xxxxx, XX 00000-0000, the United States of America, the shares of
which are listed on the NASDAQ stock exchange in the United States
of America under the trading symbol of "PACT".
(2) BEIJING LINKHEAD TECHNOLOGIES LTD., CO. (CHINESE COMPANY NAME) a
company existing under the laws of the People's Republic of China
whose principal place of business is 1601, 26 Building, 3 Block,
Anzhenli, Xxxx Xxxx District, Beijing 100029 (hereinafter referred
to as the "COMPANY");
(3) XXXXXX HOLDING GROUP INC., a company existing under the laws of the
British Virgin Islands whose principal place of business is Offshore
Incorporations Limited, PO Box 3444, Offshore Incorporations Center,
Road Town, Tortola, British Virgin Islands, and
GREAT MIND CONSULTANTS LIMITED, a company existing under the laws of
the British Virgin Islands whose principal place of business is
Offshore Incorporations Limited, PO Box 957, Offshore Incorporations
Center, Road Town, Tortola, British Virgin Islands; and
BEIJING XIN DA BEI TECHNOLOGIES, LTD, a company existing under the
laws of the People's Republic of China whose principal place of
business is 4th floor, JingXin Building Annex, 0X Xxxx Xxx Xxxx
Xxxxx Xx., Xxxxxxx, Xxxxx, 000000 (hereinafter jointly referred to
as the "COMPANY SHAREHOLDER");
(4) XX. XXX BIN whose principal place of business is at 1601, 26
Building, 3 Block, Anzhenli, Xxxx Xxxx District, Beijing 100029
(hereinafter referred to as the "WARRANTOR");
WHEREAS:
A. The Company is a private company incorporated under the laws of the
People's Republic of China whose principal place of business is
1601, 26 Xxxxxxxx, 0 Xxxxx, Xxxxxxxx, Xxxx Xxxx Xxxxxxxx, Xxxxxxx
100029
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B. The Company has an authorized share capital of US$1,200,000 divided
into 120,000,000 ordinary shares of US$0.01 each, of which
120,000,000 shares representing the entire issued share capital of
the Company (the "SHARES") have been issued, and are beneficially
owned by the Company Shareholder as set out in Part I of Schedule 1.
C. The Company, directly and through its various contractual
arrangements with ShenZhen Linkhead Limited, a People's Republic of
China limited liability corporation, is engaged in the business of
providing value-added telecom services (VAS), interactive voice
response (IVR) system development and integration, voice internet
portals, computer telephony integration (CTI), VoIP, internet and
mobile application development, telecom customer relationship
management (CRM) services for China's telecom operators, telecom
related management and consulting services, mobile consumer
analytics, mobile data-mining, internet e-commerce and mobile
commerce, mobile applications based on WAP, K-Java, BREW, EMS, short
messaging services (SMS), multimedia messaging services (MMS),
outsourced software development, and other mobile value-added
services (VAS) in the PRC, (the "BUSINESS");
D. Company Shareholder wishes to sell to the Purchaser, and the
Purchaser wishes to purchase from such Shareholder, 51% of the
SHARES owned by such Shareholder (the "Sale Shares"), all upon the
terms and subject to the conditions set forth herein; The COMPANY
has agreed to sell and the Purchaser has agreed to purchase the
SHARES as set out in Part II of Schedule 1 for the consideration and
upon the terms and conditions set out in this Agreement.
E. The Purchaser requires the WARRANTOR, who is the ultimate
beneficiary owner of Company Shareholder and who have requested the
Purchaser to enter into this Agreement, to give such
representations, warranties, covenants and undertakings as are set
out herein as a condition to the Purchaser's entry into this
Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements and covenants hereinafter set forth, and intending to be legally
bound hereby, the parties to this Agreement hereby agree as follows:
1. INTERPRETATION
1.1 The Recitals and Schedules form part of this Agreement and shall
have the same force and effect as if expressly set out in the body
of this Agreement and any reference to this Agreement shall include
the Recitals and Schedules.
1.2 In this Agreement except where the context otherwise requires the
following words and expressions shall have the following meanings:
"BVI" The British Virgin Islands;
"COMPLETION" completion of the sale and purchase of the Sale
Shares in accordance with Clause 5 of this
Agreement;
"COMPLETION DATE" JANUARY 15, 2004, on or before 6 p.m. (or such
later date as the parties shall agree in writing);
"CONDITIONS" the conditions contained or referred to in
Clause 4;
"CONSIDERATION" the consideration payable for the sale and
purchase of the Sale Shares to the COMPANY
pursuant to Clause 3 [as adjusted by clause 6];
"HONG KONG" Hong Kong Special Administrative Region of the PRC;
HK$ Hong Kong dollars
"PACT SHARES" ordinary shares of PACT;
"PRC" People's Republic of China;
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"SALE SHARES" the 61,200,000 ordinary shares of US$0.01
each in the capital of the Company (being
FIFTY-ONE PER CENT (51%) of the existing issued
and allotted share capital on a fully diluted
basis) such shares being beneficially owned by and
registered in the name of the Company Shareholder
in the proportions inter se set out in Part II of
Schedule 1;
"US$" United States dollars;
"UNITED STATES" United States of America;
1.3 Words and phrases (not otherwise defined in this Agreement) the
definitions of which are contained or referred to in the Companies
Ordinance (Cap. 32) shall be construed as having the meanings
thereby attributed to them.
1.4 References in this Agreement to ordinances and to statutory
provisions shall be construed as references to those ordinances or
statutory provisions as respectively as modified (on or before the
date hereof) or re-enacted (whether before or after the date hereof)
from time to time and to any orders, regulations, instruments or
subordinate legislation made under the relevant ordinances or
provisions thereof and shall include references to any repealed
ordinance or provisions thereof which has been so re-enacted (with
or without modifications).
1.5 The headings are for convenience only and shall not affect the
construction of this Agreement.
1.6 All representations, undertakings, warranties, indemnities,
covenants, agreements and obligations given or entered into by more
than one person are given or entered into jointly and severally.
1.8 Except where the context otherwise requires words denoting the
singular include the plural and vice versa; words denoting any one
gender include all genders; words denoting persons include
incorporations and firms and vice versa.
1.9 Reference to clauses, sub-clauses, paragraphs and schedules are
(unless the context requires otherwise) to clauses, sub-clauses,
paragraphs and schedules of this Agreement.
1.10 The expressions the "Company", the "Company Shareholder" and the
Purchaser shall unless the context requires otherwise shall include
their successors, personal representatives and permitted assigns.
1.11 The schedules and appendices form part of this Agreement.
2. SALE OF SHARES
2.1 Subject to the terms of this Agreement the Company Shareholder shall
sell as beneficial owner and the Purchaser (relying on the
representations, warranties, agreements, covenants, undertakings and
indemnities hereinafter referred to) shall purchase the SALE SHARES
free from all options, liens, charges, pledges, claims, agreements,
encumbrances, equities and other third party rights of any nature
whatsoever and together with all rights of any nature whatsoever now
or hereafter attaching or accruing to it including all rights to any
dividends or other distribution declared paid or made in respect of
them after the date of this Agreement.
3. CONSIDERATION
3.1 The Consideration for the Sale Shares shall be US$4,972,500, to be
settled in accordance with the following provisions :
a) USD$222,500 payable to the Company in cash or wire transfer
within 30 days after the successful Completion as defined in Clause
5 of this Agreement, and ;
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b) USD$4,750,000 payable in PACT Shares: equivalent to 950,000 PACT
shares based on a valuation of $5.00 per PACT share, payable to the
Company Shareholder.
3.2 Within 30 days of the signing of this agreement, PURCHASER shall
deliver to COMPANY SHAREHOLDER a sum of 350,000 Restricted PACT
Shares (the "Deposit Shares"), being a refundable deposit and
partial payment of the purchase consideration; in addition, PACT
shall deliver to the Escrow Agent (designated by the Purchaser) the
sum of 600,000 PACT Shares (the "Escrow Shares"), to be held under
the terms of an escrow agreement to be entered into with the Escrow
Agent, being the remaining payment of the purchase consideration;
3.4 In the event that :
(c) the Purchaser fails to receive any required regulatory
approvals by the SEC, NASDAQ, or fails to receive the
approval of the Shareholders of PACT if required; or
(d) the conditions set out in Clause 5 shall not have been
fulfilled by the Completion Date or such other date as
the parties hereto may agree in writing;
(e) the transaction is not completed for any reason by
JANUARY 15, 2004; the Escrow Agreement shall provide
that the Deposit Shares shall be returned to the
Purchaser within ten (10) days following the date on
which the Purchaser rescinds this Agreement.
3.4 ESCROW ARRANGEMENT FOR CONSIDERATION SHARES
COMPANY SHAREHOLDER hereby agrees and acknowledges that the total
Consideration payable by PACT is based on COMPANY SHAREHOLDER's
warranty in respect of the Net Income of COMPANY as described in
this section. In this regard COMPANY SHAREHOLDER hereby agrees to
allow the Purchaser to appoint the Escrow Agent upon the terms of
the Escrow Agreement in the agreed terms to hold all the
Consideration Shares to be issued in accordance with this Agreement
on Completion and COMPANY SHAREHOLDER undertakes with PACT that it
shall not either sell, transfer, charge, encumber, grant options
over or otherwise dispose of, or of any legal or beneficial interest
in any of the Consideration Shares until such part of the
Consideration Shares are released to by the Escrow Agent to COMPANY
SHAREHOLDER in accordance with the following schedule:
----------------------------------------------------- ---------------- ----------------------------------
RELEASE DATE NUMBER OF RELEASE CRITERIA BASED ON
SHARES TO BE ACCUMULATED NET INCOME
RELEASED
----------------------------------------------------- ---------------- ----------------------------------
3.4.1. After Q1 of 2004, within 30 days of 150,000 COMPANY has achieved:
the Auditors certification that the restricted Net Income for the 3 months
auditor's review relating to COMPANY and its PACT Shares ending on March 31 (Q1) of 2004
business is acceptable and can be of not less than USD$375,000
consolidated into PACT's audited accounts,
balance sheet and financial statements, in
accordance with the US GAAP.
----------------------------------------------------- ---------------- ----------------------------------
3.4.2. After Q2 of 2004, within 30 days of the 150,000 COMPANY has achieved:
Auditors certification that the auditor's review restricted Net Income for the 6 months
relating to COMPANY and its business is acceptable PACT Shares ending on June 30 (Q1+Q2) of
and can be consolidated into PACT's audited 2004 of not less than
accounts, balance sheet and financial statements, USD$750,000
in accordance with the US GAAP.
----------------------------------------------------- ---------------- ----------------------------------
3.4.3. After Q3 of 2004, within 30 days of the 150,000 COMPANY has achieved:
Auditors certification that the auditor's review restricted Net Income for the 9 months
relating to COMPANY and its business is acceptable PACT Shares ending on September 30
and can be consolidated into PACT's audited (Q1+Q2+Q3) of 2004 of not less
accounts, balance sheet and financial statements, than USD$1,125,000
in accordance with the US GAAP.
----------------------------------------------------- ---------------- ----------------------------------
3.4.4. After Q4 of 2004, within 30 days of the 150,000 COMPANY has achieved:
Auditors certification that the auditor's review restricted Net Income for the 12 months
relating to COMPANY and its business is acceptable PACT Shares ending on December 31
and can be consolidated into PACT's audited (Q1+Q2+Q3+Q4) of 2004 of not
accounts, balance sheet and financial statements, less than USD$1,500,000
in accordance with the US GAAP.
----------------------------------------------------- ---------------- ----------------------------------
Total Number of PACT Shares to be released from 600,000
the Escrow restricted
PACT Shares
----------------------------------------------------- ---------------- ----------------------------------
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Purchaser agrees that on the relevant release date (as referred to
in the above schedule) COMPANY SHAREHOLDER will collect the relevant
portion of the Consideration Shares from the Escrow Agent (if the
Release Criteria has been met).
3.5. NET INCOME WARRANTY BY COMPANY SHAREHOLDER, BONUS SHARES, AND
PENALTY
3.5.1 COMPANY SHAREHOLDER warrants, represents and undertakes that: (i)
the total Net Income of COMPANY for the period from 1st January 2004
to 31st December 2004 ("First Fiscal Year") will not be less than
USD$1,500,000. (ii) the total Net Income of COMPANY for the period
from 1st January 2005 to 31st December 2005 ("First Fiscal Year")
will not be less than USD$2,000,000.
3.6. BONUS SHARES (EARNOUT) FOR ACHIEVING NET INCOME EXCEEDING THE
USD$1,500,000 PROFIT GUARANTEE FOR FISCAL YEAR 2004
Subject to Completion having occurred and the terms of this
Agreement, after the Fiscal Year 2004, within 30 days of the
Auditors certification that the audited financial statements
relating to COMPANY and its business is acceptable and can be
consolidated into PACT's audited accounts, balance sheet and
financial statements, in accordance with the US GAAP., the Company
Shareholder shall be entitled to subscribe for and be issued and
allotted the following number of Bonus Shares at par value based on
the Net Income of the Company, according to the following formula:
Number of Bonus Shares to be issued for Fiscal Year 2004 = ( Net
Income Amount in USD$ for Fiscal Year 2004 in excess of
USD$1,500,000) *51% / ( 30-Day Volume Weighted Average Price of the
common stock of PACT )
3.6.1. THE FOLLOWING IS THE DETAILED FORMULA FOR CALCULATING THE NUMBER OF
BONUS SHARES TO BE ISSUED:
Number of Bonus Shares to be issued for Fiscal Year 2004 = ( Actual
Audited Net Income Amount in USD$ for Fiscal Year 2004 -
USD$1,500,000) *51% / ( 30-Day Volume Weighted Average Price of the
common stock of PACT beginning from the 15th trading day prior to
the announcement of the 2004 Annual Financial Results to the 15th
trading day after the announcement )
3.6.2. MAXIMUM BONUS SHARES = 600,000 NEWLY ISSUED RESTRICTED PACT SHARES
* The Number of Bonus Shares must not exceed 600,000 shares of the
common stock of PACT
3.6.3. Upon the Company Shareholder being entitled to subscribe for the
relevant number of Bonus Shares pursuant to the above formula and
payment of the par value on each Bonus Share to PACT, the Purchaser
shall procure PACT to issue the relevant number of Bonus Shares to
the Company Shareholder within 30 days of the Announcement of the
Annual Result.
3.7. PENALTY IN CASE OF SHORTFALL OF NET INCOME BELOW USD$1,500,000 FOR
FISCAL YEAR 2004: In the event that COMPANY produces only a portion
of the annual Net Income warranted by COMPANY SHAREHOLDER at the end
of 2004, then COMPANY SHAREHOLDER shall return to PURCHASER the
number of PACT shares equivalent to the dollar amount of the
shortfall of the Net Income divided by US$5.00 (the original per
share price of the PACT stock at the closing) .
3.9. IN CASE OF ANY STOCK SPLIT OR REVERSE STOCK SPLIT BY PACT, THE
NUMBER OF PACT SHARES TO BE ISSUED, AWARDED, OR RETURNED WILL BE
ADJUSTED ACCORDING TO THE STOCK SPLIT RATIO.
4. CONDITIONS
4.1 This Agreement is conditional upon:
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4.1.9 the Purchaser being satisfied with the results of a
legal and financial due diligence review to be conducted
by it on the Company;
4.1.10 if required, the relevant stock exchange, government and
securities authority and regulator in the United States
granting listing of the PACT Shares to be issued herein;
4.1.11 if required, a resolution at a meeting of the Directors
of PACT approving this Agreement, the purchase of the
Sale Shares, creating and giving authority for the issue
of the Consideration Shares, the implementation of the
transactions contemplated hereunder and all other
matters incidental hereto in accordance with the
provisions of PACT's articles of association and Bylaws
and such rules, regulations and laws in force from time
to time in the United States and which apply to PACT;
4.1.12 if required, the shareholders of PACT at a meeting of
shareholders approving this Agreement, the purchase of
the Sale Shares, creating and giving authority for the
issue of the Consideration Shares, the implementation of
the transactions contemplated hereunder and all other
matters incidental hereto in accordance with the
provisions of PACT's articles of association and Bylaws
and such rules, regulations and laws in force from time
to time in the United States and which apply to PACT;
4.1.13 all amounts outstanding to the COMPANY SHAREHOLDER by
the Company have been either repaid to the COMPANY or
otherwise waived; and
4.2 If the conditions set out in Clause 4.1 shall not have been
fulfilled, or as the case may be, waived by the Purchaser, on or
before January 15, 2004or such later date as the parties may agree,
this Agreement shall lapse and be of no further effect whereupon the
Deposit Shares shall be returned to the Purchaser in accordance with
Clause 3.3 and no party to this Agreement shall have any claim
against or liability to the other party save in respect of any
antecedent breaches of this Agreement, including any breaches of
this Clause 4.
4.3 The COMPANY SHAREHOLDER and the Company undertakes to disclose in
writing to the Purchaser anything which will or may prevent any of
the conditions from being satisfied at or prior to Completion, as
applicable, immediately upon the COMPANY SHAREHOLDER and/or the
Company becoming aware of such a situation.
4.4 From the date of this Agreement until Completion, except for the
transactions described herein or otherwise with the prior written
consent of the Purchaser :
(a) The COMPANY SHAREHOLDER warrants and undertakes that
they will cause the Company to :
(i) conduct its business in the ordinary course and
consistent with past practices;
(ii) use its best efforts to maintain in full force and
effect the existence of the Company;
(iii) promptly and timely prepare and file any financial
reports and franchise tax returns and pay all
taxes and assessments, if any, required to
maintain the existence of the Company;
(iv) keep records in which true and correct entries
will be made of all material transactions by and
with the Company;
(v) duly observe all material requirements of
governmental authorities unless contested in good
faith by appropriate proceedings with the consent
of the Purchaser;
(vi) promptly pay and discharge, or cause to be paid
and discharged, when due and payable, all lawful
taxes, assessments and governmental charges or
levies imposed upon the income, profits, property
or business of the Company unless contested in
good faith by appropriate proceedings with the
consent of the Purchaser;
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(viii) at all times comply with the provisions of all
contracts, agreements and leases to which the
Company is a party, unless contested in good faith
by appropriate proceedings with the consent of the
Purchaser;
(ix) to use best endeavors to procure that the
employees of the Company at the date of this
Agreement remain and continue as employees after
completion;
(b) The COMPANY SHAREHOLDER warrants and undertakes to cause
the Company not to:
(i) modify its [Memorandum or Articles of Association]
[Bylaws];
(ii) cause or permit its liquidation or dissolution;
(iii) institute, or permit to be instituted against it,
any proceeding, which remains undismissed for a
period of [30] days after the filing thereof,
seeking to adjudicate it as bankrupt or insolvent,
or seeking liquidation, winding-up,
reorganization, arrangement, adjustment,
protection, relief or composition of it or its
debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors,
or seeking the entry of any order or relief or the
appointment of receiver, trustee or other similar
official for it or for any substantial part of its
property;
(iv) make a general assignment for the benefit of its
creditors;
(v) except as agreed in this Agreement, declare or pay
any dividend or make any distribution to any of
its shareholders;
(vi) issue, redeem, sell or dispose of, or create any
obligation to issue, redeem, sell or dispose of,
any shares of its capital stock (whether
authorized but unissued or held in treasury);
(vii) effect any stock split, reclassification or
combination;
(viii) modify its agreements and other obligations with
respect to its long-term indebtedness, including
but not limited to its loan agreements,
indentures, mortgages, debentures, notes and
security agreements;
4.5 Until Completion, the COMPANY SHAREHOLDER and the Company shall
procure that the Purchaser, its agents and representatives are given
reasonable access to such documents relating to the Company , as the
Purchaser shall request.
4.6 The COMPANY SHAREHOLDER warrants, represents and undertakes that
there shall have been no Material Adverse Change in the assets or
the business, prospects, financial condition or results of
operations of the Company .
4.7 The Purchaser shall be entitled to rescind this Agreement by notice
in writing to the COMPANY SHAREHOLDER and the Company if prior to
Completion it appears that any of the Warranties is not or was not
true and accurate in all respects or if any act or event occurs
which, had it occurred on or before the date of this Agreement,
would have constituted a breach of any of the Warranties or if there
is any material non fulfillment of any of the Warranties which
(being capable of remedy) is not remedied prior to Completion.
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5. COMPLETION
5.1 Subject to the terms of this Agreement, Completion shall take place
pursuant to this clause at the offices of the Purchaser's Legal
Counsel on the Completion Date.
5.2 Upon Completion the COMPANY SHAREHOLDER and the Company shall:
(a) deliver to the Purchaser:
(i) duly completed and signed transfers of the Sale
Shares by the registered holders thereof in favor
of the Purchaser or as it may direct together with
the relative bought/sold notes and share
certificates;
(ii) duly completed, executed and validly issued share
certificates of the Sale Shares in favor of the
Purchaser or as it may direct;
(iii) certified true copies of the minutes of meetings
of the Company's board of directors and
shareholders approving the transfer, assignment
and allotment of the Sale Shares to the Purchaser;
(v) certified true copies of the minutes of COMPANY's
board of directors and shareholders approving this
Agreement and all matters herein contemplated and
the transfer and assignment of its Sale Shares to
the Purchaser;
6. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
6.1 The Company, the COMPANY SHAREHOLDER and the WARRANTOR jointly and
severally, represents, warrants and undertakes to the Purchaser (to
the intent that the provisions of this clause shall continue to have
full force and effect notwithstanding completion) that :
6.1.1 each of the Warranties is true and accurate in all
respects and not misleading at the date of this Agreement
and will continue to be true and accurate in all respects
and not misleading up to and including the Completion
Date;
6.1.2 the Company and the COMPANY SHAREHOLDER have and will have
full power and authority to enter into and perform this
Agreement and the Deed of Indemnity which constitute or
when executed will constitute binding obligations on them
in accordance with their respective terms;
6.1.3 the Sale Shares will constitute 51 PER CENT. of the entire
issued and allotted capital of the Company on a fully
diluted basis;
6.1.4 there have been no options, warrants, pledges, bonds or
any instrument or agreement of the like whatsoever granted
to any third party by any of the COMPANY SHAREHOLDER, the
Company in favor of any third party in respect of any
shares in the Company ;
6.1.5 there is and at completion will be no pledge, lien or
other encumbrance on, over or affecting the Sale Shares
and there is and at completion will be no agreement or
arrangement to give or create any such encumbrance and no
claim has been or will be made by any person to be
entitled to any of the foregoing;
6.1.6 the COMPANY SHAREHOLDER will be entitled to transfer the
full legal and beneficial ownership of the Sale Shares to
the Purchaser on the terms of this Agreement without the
consent of any third party;
6.1.7 the Company is duly incorporated and validly existing in
its relevant jurisdiction of incorporation.
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7. INDEMNITY
7.1 The COMPANY SHAREHOLDER and the WARRANTOR will indemnify and will
keep indemnified and save harmless the Purchaser (for itself and as
trustee for the Company from and against any and all losses, claims,
damages (including lost profits, consequential damages, interest,
penalties, fines and monetary sanctions) liabilities and costs
incurred or suffered by the Purchaser by reason of, resulting from,
in connection with, or arising in any manner whatsoever out of the
breach of any Warranties or covenants or the inaccuracy of any
representation of the COMPANY SHAREHOLDER or the WARRANTOR contained
or referred to in this Agreement or in any agreement, instrument or
document delivered by or on behalf of the COMPANY SHAREHOLDER or the
WARRANTOR in connection therewith including, but not limited to, any
dimunition in the value of the assets of and any payment made or
required to be made by the Purchaser or the Company or any
Subsidiary and any costs and expenses incurred as a result of such
breach provided that the indemnity contained in this clause 9 shall
be without prejudice to any other rights and remedies available to
the Purchaser;
8. COSTS
8.1 The Purchaser shall pay for all the due diligence costs including
auditing and valuation appraisal costs, fairness opinion letter,
legal costs, and expenses and other incidental costs and
disbursements in relation to the negotiations leading up to the
purchase of the Sale Shares and to the preparation, execution and
carrying into effect of this Agreement.
9. COMPLETE AGREEMENT
This Agreement represents the entire and complete agreement between
the parties in relation to the subject matter hereof and supersedes
any previous agreement whether written or oral in relation thereto.
No variations to this Agreement shall be effective unless made or
confirmed in writing and signed by all the parties hereto.
10. SEVERABILITY
In the event that any provision of this Agreement is held to be
unenforceable, illegal or invalid by any court of competent
jurisdiction, the validity, legality or enforceability of the
remaining provisions shall not be affected nor shall any subsequent
application of such provisions be affected. In lieu of any such
invalid, illegal or unenforceable provision, the parties hereto
intend that there shall be added as part of this Agreement a
provision as similar in terms to such invalid, illegal or
unenforceable provision as may be possible and be valid, legal and
enforceable.
11. COUNTERPARTS
This Agreement may be executed in counterparts with the same force
and effect as if executed on a single document and all such
counterparts shall constitute one and the same instrument.
12. NOTICES
12.1 Any notice required to be given under this Agreement shall be
sufficiently given if delivered in person, forwarded by registered
post or sent by overnight international couriers or facsimile
transmission to the relevant party at its address, or fax number set
out below (or such other address as the addressee has by five days
prior written notice specified to the other parties) :
To the Purchaser :
Xxxx Xxxx, Chairman & CEO
PacificNet Strategic Investment Holdings Limited and PacificNet Inc.
Xxxx 0000, Xxxx Xxxx Xxxxx, 000 Xxxxxxxxx Xxxx Xxxx, Xxxx Xxxx.
Tel: x000-00000000
Fax: x000-00000000
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To the COMPANY :
Attn: Xx. Xxxx Xxxxxxx, Chairman
Beijing Linkhead Technologies Ltd., Co.
1601, 00 Xxxxxxxx, 0 Xxxxx, Xxxxxxxx, Xxxx Xxxx Xxxxxxxx, Xxxxxxx
000000.
To the COMPANY SHAREHOLDER:
Attn: Xx. Xxx Keyu, Chairman
XXXXXX HOLDING GROUP INC
Offshore Incorporations Limited, PO Box 3444, Offshore
Incorporations Center, Road Town, Tortola, British Virgin Islands,
and
Attn: Xx. Xxx Bin, Chairman
GREAT MIND CONSULTANTS LIMITED
Offshore Incorporations Limited, PO Box 957, Offshore
Incorporations Center, Road Town, Tortola, British Virgin Islands
Attn: Xx. Xxxx Xxxxxxx, Chairman
BEIJING XIN DA BEI TECHNOLOGIES, LTD
4th floor, JingXin Building Annex, 0X Xxxx Xxx Xxxx Xxxxx Xx.,
Xxxxxxx, Xxxxx, 000000
To the WARRANTOR :
Xx. Xxx Bin
1601, 26 Building, 3 Block, Anzhenli, Xxxx Xxxx Xxxxxxxx,
Xxxxxxx 000000.
13. GOVERNING LAW AND JURISDICTION
The parties hereby agree that the Purchase Agreement and all
questions relating to their validity, interpretation, performance
and enforcement, shall be governed by and construed in accordance
with the laws of the State of Delaware, notwithstanding any Delaware
or other conflict-of-law provisions to the contrary. Any legal
action or other legal proceeding relating to this Agreement or the
enforcement of any provision of the Purchase Agreement and this
Supplement may be brought or otherwise commenced in any state or
federal court located either in Delaware, Minnesota or Hong Kong.
IN WITNESS WHEREOF, each of the Purchaser, the Company, the Company
Shareholder, and the WARRANTOR has duly executed, or has caused to be duly
executed by their respective officers thereunto duly authorized, this Agreement
as of the date first written above.
10
THE PURCHASER: PACIFICNET STRATEGIC INVESTMENT HOLDINGS LIMITED AND PACIFICNET
INC.
By: /s/ Xxxxxx Xxxx
------------------------------------
Name: Xxxxxx Xxxx
Title: Executive Officer
THE COMPANY: BEIJING LINKHEAD TECHNOLOGIES LTD, CO.
By: /s/ Xxxx Xxxxxxx
-----------------------
Name: Xxxx Xxxxxxx
Title: Chairman
THE COMPANY SHAREHOLDER:
By: /s/ Xx. Xxx Keyu,
------------------------------------
Name: Xxx Xxxx
Title: Chairman
XXXXXX HOLDING GROUP INC
By: /s/ Xx. Xxx Bin,
------------------------------------
Name: Lin Bin
Title: Chairman
GREAT MIND CONSULTANTS LIMITED
By: /s/ Xx. Xxxx Xxxxxxx,
------------------------------------
Name: Xxxx Xxxxxxx
Title: Chairman
BEIJING XIN DA BEI TECHNOLOGIES, LTD
THE WARRANTOR:
By: /s/ LIN BIN
------------------------------------
Name: LIN BIN
Title: CEO
BEIJING LINKHEAD TECHNOLOGIES LTD, CO.
11
SCHEDULE 1
PART I
THE COMPANY, COMPANY SHAREHOLDER, AND SHARES
Company Name: Beijing Linkhead Limited
NAME OF SHAREHOLDER (1) (2) NUMBER OF SHARES HELD BY THE SHAREHOLDER
-------------------- ----------------------------------------
XXXXXX HOLDING GROUP INC 25.5%
GREAT MIND CONSULTANTS LIMITED 33%
BEIJING XIN DA BEI TECHNOLOGIES, LTD 41.5%
PART II
THE COMPANY SHAREHOLDER AND SHARES
Company Name: XXXXXX HOLDING GROUP INC
NAME OF SHAREHOLDER (1) (2) NUMBER OF SHARES HELD BY THE SHAREHOLDER
-------------------- ----------------------------------------
XXX XXXX 100%
Company Name: GREAT MIND CONSULTANTS LIMITED
NAME OF SHAREHOLDER (1) (2) NUMBER OF SHARES HELD BY THE SHAREHOLDER
-------------------- ----------------------------------------
LIN BIN 100%
Company Name: BEIJING XIN DA BEI TECHNOLOGIES, LTD
NAME OF SHAREHOLDER (1) (2) NUMBER OF SHARES HELD BY THE SHAREHOLDER
-------------------- ----------------------------------------
XXXX XXXXXXX 100%
12
SCHEDULE 2
PART I
THE COMPANY
NAME : Beijing Linkhead Technologies Ltd., Co.
INCORPORATED IN : People's Republic of China
AUTHORIZED SHARE CAPITAL : 1,200,000 US DOLLARS
NO. ISSUED SHARES : 120,000,000 SHARES
NOMINAL SHARE VALUE : US$0.01
ISSUED SHARE CAPITAL : US$1,200,000
REGISTERED OFFICE : 1-1304 WAN XXX XXXX XXXX XXXXX XXX XXX XXXX
XXX XXXX XXXXXXXX, XXXXXXX, 000000
BENEFICIAL SHAREHOLDERS :
XXXXXX HOLDING GROUP INC
GREAT MIND CONSULTANTS LIMITED
BEIJING XIN DA BEI TECHNOLOGIES, LTD
REGISTERED SHAREHOLDERS :
XXXXXX HOLDING GROUP INC
GREAT MIND CONSULTANTS LIMITED
BEIJING XIN DA BEI TECHNOLOGIES, LTD
DIRECTORS : ,
Xx. Xxxx Xxxxxxx,
Xx. Xxx Bin,
Xx. Xxxx Xx
Xx. Xxx Zhonglin
Xx. Xxx Keyu
SECRETARY : Xx. Xxx Bin
13
