EXHIBIT 10.7
DATED THIS 10th DAY OF JULY 2007
BETWEEN
DOMAINE GROUP LIMITED
as the Vendor
AND
TREMAX INTERNATIONAL LIMITED
as the Purchaser
AND
AMARU, INC.
SHARES SALE AND PURCHASE AGREEMENT
THIS AGREEMENT is made on the 10th day of JULY 2007
BETWEEN
1. DOMAINE GROUP LIMITED, a company incorporated in British Virgin
Islands and having its registered office at Portcullis Trustnet
Xxxxxxxx, P.O. Box 3444 Road Town Tortola, British Virgin Islands
(the "Vendor");
AND
2. TREMAX INTERNATIONAL LIMITED, a company incorporated in British
Virgin Islands and having its registered office at Akara Building, 00
Xx Xxxxxx Xxxxxx, Xxxxxxxx Cay I, Road Town, Tortola, PO Box 3136,
British Virgin Islands (hereinafter referred to as the "Purchaser"),
AND
3. AMARU, INC. a company incorporated under the laws of the state of
Nevada, Las Vegas, USA and having its registered office at 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxx Xxxx, XX 00000-0000 (hereinafter referred to as
"Amaru"),
collectively referred to as the "Parties" and individually a "Party".
WHEREAS
A. CBBN HOLDINGS LIMITED (Company Registration No. 1059858), is a
company incorporated in British Virgin Islands and having its
registered office at Portcullis Trustnet Xxxxxxxx, P.O. Box 3444 Road
Town Tortola, British Virgin Islands (the "Company").
B. Cosmactive Broadband Networks Co., Ltd ([chinese symbols]) ("CBN") is
a company incorporated in the ROC whose registered office is at 6F,
No. 00-0 Xxxxxxxx Xxxx, Xxx Xxxx Xxxxxxxx, Xxxxxx 000, Xxxxxx and as
at the date hereof has an authorised capital of NT$309,000,000
divided into 30,900,000 shares of NT$10 each, all of which shares
have been issued and are fully paid with further details of the
Company being set out in Schedule 1.
C. As at the date of this Agreement, the Company is the legal and
beneficial owner of 80% of the entire issued and paid up capital of
CBN.
D. As at the date of this Agreement, the Vendor is the legal and
beneficial owner of 100% of the entire issued and paid up capital of
US$2.00 of the Company, comprising 2 ordinary shares (the "Sale
Shares").
E. The Purchaser is a wholly-owned subsidiary of Amaru.
F. The Vendor is desirous of selling and the Purchaser is desirous of
purchasing, the Sale Shares on the terms and subject to the
conditions, contained in this Agreement.
NOW IT IS HEREBY AGREED as follows: -
1. DEFINITIONS
-----------
1.1 In this Agreement, unless there is something in the subject or
context inconsistent therewith the following expressions bear the
following meanings, namely:-
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"ACCOUNTS" means the audited balance sheets of the Company or CBN, as
the case maybe, as at 31 December 2006 and as at the Last Accounting
Date as well as the audited profit and loss accounts of the Company
or CBN, as the case maybe, for the financial year ended 31 December
2006 and for the four months ended on the Last Accounting Date
including all notes and reports on such balance sheets and profit and
loss accounts, prepared in accordance with the generally accepted
accounting principles in the ROC;
"ARTICLES OF INCORPORATION" means the articles or bye-laws of
incorporation of the Company;
"COMPLETION" means the completion of the sale and purchase of the
Sale Shares referred to in Clause 8 below;
"COMPLETION DATE" means 15 July 2007 or such other date as the
Parties may agree in writing;
"ENCUMBRANCE(S)" means and includes any interest or equity or adverse
claim of any matter whatsoever or any person (including without
prejudice to the generality of the foregoing, any right to acquire,
option or right of pre-emption) or any mortgage, charge, pledge, lien
or assignment or any other encumbrances, priority or security
interest or arrangement of whatsoever nature over or in the relevant
property;
"FIA APPROVAL" means a foreign investment approval to be obtained by
the Purchaser under the State for Investment by Foreign Nationals in
ROC;
"GOVERNMENT" means any agency, division or subsidiary of the
Government of ROC or any other government, domestic or foreign,
including the employees or agents thereof;
"GROUP" means the Company, CBN and any subsidiaries of CBN (if any)
collectively;
"LAST ACCOUNTING DATE" means 30 April 2007;
"LONG TERM CONTRACT" means any contract or agreement (including,
without limiting the generality of the foregoing, any contract or
agreement with company officers, trade associates, trade unions,
advertisers, employees, licensors, licensees, suppliers, agents,
dealers, representatives and associations) which cannot be terminated
with less than 30 days' notice without giving rise to any claim for
damages or compensation;
"NET WORTH" means the valuation of CBN of not less than US$2.5
million, based on the management accounts as at the Last Accounting
Date;
"NT$" means new Taiwan Dollars, the lawful currency of ROC;
"ROC" means Taiwan, the Republic of China;
"TAX RETURNS" means any return, report, information return or other
document (including any related or supporting information) filed or
required to be filed with the Government in connection with the
determination, assessment, collection or administration of any Taxes;
"TAXES" means all forms of taxes and includes (without limitation)
goods and services tax, overseas taxation, corporation tax, income
tax, capital gains tax, share transfer tax, customs and other import
duties, local governmental and municipal impositions, duties, levies
and any payment whatsoever which may be payable as a result of the
operation of any statutory provision relating to taxation and all
penalties, charges and interest relating to any claim for taxation or
resulting from a failure to comply with the provisions of any statute
relating to taxation;
"USA" means the United States of America;
"US$" means the lawful currency of USA.
1.2 Except to the extent that the context otherwise requires, any
reference in this Agreement to a "person" includes any individual,
company, corporation, firm, partnership, joint venture, association,
organisation, trust, state or agency of a state (in each case whether
or not having separate legal personality).
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1.3 Unless the context otherwise requires, words importing the singular
number only include the plural number and vice versa.
1.4 The words "hereof", "herein", "hereon" and "hereunder" and words of
similar import, when used in this Agreement, refer to this Agreement
as a whole and not to any particular provision of this Agreement.
1.5 The heading to the clauses hereof shall not be deemed to be a part
thereof or be taken in consideration in the interpretation or
construction thereof or of this Agreement.
1.6 References herein to recitals, clauses, schedules and appendices are
to recitals, clauses, schedules and appendices of and/or to this
Agreement.
1.7 Reference to any statute or statutory provisions includes a reference
to that statute or statutory provision as from time to time amended,
extended or re-enacted, with or without modification.
2. SALE AND PURCHASE OF SALE SHARES
--------------------------------
The Vendor shall sell, and the Purchaser or its nominee(s) shall
purchase the Sale Shares, at the Consideration (as hereafter
defined), free from any Encumbrances whatsoever and together with all
rights now or hereafter attaching there to including all dividends
and distributions declared, made or paid on or after the Completion
Date.
3. CONSIDERATION
-------------
3.1 The Parties hereto agree that the consideration for the transfer of
the Sale Shares (the "Consideration") shall be 5,333,333 new shares
of restricted common stock in the share capital of Amaru (the
"Consideration Shares").
3.2 The Purchaser shall procure that the Consideration be fully satisfied
on Completion by the issue and allotment to the Vendor of the
Consideration Shares by Amaru credited as fully paid and free from
all encumbrances and ranking pari passu in all respects with the
common stock in the capital of Amaru existing as at the Completion
Date.
4. CONDITIONS PRECEDENT
--------------------
4.1 The Parties agree that the transfer of the Sale Shares shall be
completed upon satisfaction, where applicable, of all the following
conditions (the "Conditions Precedent"):-
(a) the Purchaser being satisfied with the results of the
assets, liabilities, business, legal, financial and
operational due diligence exercise conducted on the Group;
(b) the Vendor shall have taken such steps as may be necessary
to rectify or put in order any errors or omissions in
agreements entered into by the Vendor, the Vendor's records
or such of its affairs whatsoever, discovered by the
Purchaser in the course of its due diligence exercise. All
such acts of rectification shall be made at the sole cost of
the Vendor;
(c) each of the warranties and undertakings given by the Vendor
in this Agreement remaining true and not misleading in any
material respect at Completion, as if repeated at Completion
and at all times between the date of this Agreement and
Completion;
(d) the Purchaser having obtained approval of its board of
directors and, if required, its shareholders, in relation to
the acquisition of the Sale Shares and the transactions
contemplated herein;
(e) the written approval from the regulatory authorities in the
ROC (including without limitation the FIA Approval) in
relation to the transfer of Shares having been obtained in
accordance with the laws and regulations of the ROC without
any condition(s) imposed on the Purchaser which is/are
unacceptable and/or unduly burdensome to the Purchaser and
if such conditions are required to be fulfilled prior to the
Completion Date, are fulfilled prior to the Completion Date;
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(f) all necessary consents, permits and approvals (if
applicable) having been granted by any third parties,
including but not limited to the approval of the Vendor's
board of directors and shareholders, in connection with the
transfer of the Sale Shares having been obtained;
(g) if applicable, all other necessary consents, licences and
approvals required under the laws of ROC, the United States
of America and any other relevant jurisdictions where
applicable, in connection with the execution, delivery and
performance of this Agreement by the Vendor and the
Purchaser, having been obtained and shall be in full force
and effect on or before the Completion Date (or such other
date as the parties hereto may agree in writing) and if any
such approval is obtained subject to any conditions, where
such conditions affect any of the Parties hereto, such
conditions being acceptable to the party concerned and if
such conditions are required to be fulfilled prior to the
Completion Date, are fulfilled prior to the Completion Date;
(h) the Parties shall on Completion Date execute such further
documents, agreements, deeds, and do such further acts and
things, as may be required so that full effect shall be
given to the provisions of this Agreement and the transfer
of the Sale Shares.
4.2 Unless specifically waived by the Purchaser, if the condition
precedent referred to in Clause 4.1 above is not fulfilled on the
Completion Date or such later date as the Parties may agree in
writing, or if any of the terms, conditions, warranties and
representations herein contained are in any way breached, or untrue,
incorrect or misleading in any material respect, or if prior to the
Completion Date the Vendor's obligations herein are not fulfilled by
the Company, CBN and/or the Vendor, then the Purchaser may at any
time prior to the Completion Date in addition to and without
prejudice to its other rights and remedies by notice in writing to
the Vendor rescind this Agreement whereupon this Agreement shall be
deemed to be rescinded AB INITIO and of no further force or effect
save for such rights and remedies as shall have accrued in favour of
the Purchaser.
4.3 Either Party shall use its best endeavours to ensure that the
conditions set out in Clause 4.1 shall be satisfied by the Completion
Date.
5. INSPECTION
----------
5.1 The Vendor hereby agrees that forthwith after the execution of this
Agreement, it shall procure the Group to permit a person or persons
authorised by the Purchaser:-
(a) to inspect all accounts, records, books and statements of
the Group wherever the same may be situate and make and
retain copies thereof;
(b) to inspect all documents of title relating to all and any
property of the Group;
(c) to inspect all deeds, documents, files, records and
correspondence relating to the business and affairs of the
Group, including its portfolio of loans, credit facilities,
hire purchase agreements and lease agreements and relating
to all borrowings of and all encumbrances and charges
created by the Group wherever the same may be situate and
make and retain copies thereof; and
(d) to obtain all such statements, information, explanations and
data from solicitors, bankers and auditors of the Group as
the Purchaser may reasonably require regarding the affairs,
operations, administration and financial or other whatsoever
state or condition of the Group,
and for the purpose of giving effect to this Clause the Vendor shall
cause such authorisations or other directions to be given to the
Purchaser and provide such facilities, assistance and access as the
Purchaser may require.
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6. UNDERTAKINGS
------------
6.1 Pending Completion, the Vendor hereby undertakes that it will
exercise all its voting rights for the time being in the Company and
take all such other steps as may be within its powers to procure
that:-
(a) each of the Company and CBN shall carry on business as
presently carried on subject to the Purchaser's agreement on
all matters and to the prohibitions, restrictions and
undertakings contained in this Clause 6;
(b) each of the Company and CBN will not consolidate or
subdivide any shares, create any new classes of shares,
grant any options over shares or any right to subscribe for
shares or debentures, convert any debentures or obligations
into shares, alter any of the rights attached to any of its
issued shares, reduce any share capital or otherwise
re-organise or grant any rights in respect of its share
capital in any way;
(c) each of the Company and CBN will not in any way sell or
dispose of any part of its undertaking property or assets in
any manner howsoever or acquire any assets;
(d) each of the Company and CBN will not declare or pay any
dividends (whether interim or final), bonus or other
distribution to its members);
(e) each of the Company and CBN will not create, extend, grant
or issue or agree to create, extend, grant or issue any
mortgage, charge, debenture, pledge or other security or
encumbrance over any of its assets or property or permit any
liens to arise on any of its assets or property;
(f) each of the Company and CBN will not enter into any Long
Term Contract or abnormal contract or capital commitment;
(g) each of the Company and CBN will not operate its bank
accounts otherwise than in the ordinary course of business;
(h) each of the Company and CBN will not pass any resolution by
its members except for the purpose of giving effect to this
Agreement;
(i) each of the Company and CBN will not appoint any new or
additional directors;
(j) each of the Company and CBN will not permit any of its
normal insurances to lapse or do anything to make any policy
of insurance void or voidable;
(k) the existing share structure of each of the Company and CBN
shall not be altered;
(l) each of the Company and CBN will not enter into any new (or
amend any existing) employee benefit plan, program or
arrangement or any new (or amend any existing) employment,
severance or consulting agreement, grant any general
increase in the compensation of officers or employees
(including any such increase pursuant to any bonus, pension,
profit-sharing or other plan or commitment) or grant any
increase in the compensation payable or to become payable,
except in accordance with pre-existing provisions;
(m) each of the Company and CBN will not deal with its assets in
any manner whatsoever or give any indulgence, waiver,
release, compromise or concessions to any party under any
transaction, contract, agreement or any document whatsoever,
including but not limited to, hire purchase loans and
mortgage loans, entered into by, given in its favour or
which it is otherwise a party to;
(n) each of the Company and CBN will continue to keep all its
books of account and all other records in the ordinary
course and in accordance with existing practice;
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(o) each of the Company and CBN will maintain sufficient
authorities and powers of the directors, and will undertake
or procure all other requisite actions, to effect the sale
and purchase of the Sale Shares;
(p) each of the Company and CBN will not conduct or manage its
affairs in such manner as would be likely to prejudice the
interest of the Purchaser as a prospective purchaser of the
Sale Shares.
6.2 On execution of this Agreement, the Vendor shall ensure that the
Purchaser or person(s) authorised by the Purchaser to obtain
certified copies of instruments of transfers and corresponding share
certificates evidencing the vesting of the legal and beneficial title
of the Sale Shares in the Vendor.
7. VALUATION OF THE SALE SHARES
----------------------------
7.1 The Consideration has been agreed by the Parties hereto on the basis
that the Vendor has represented the value of the Net Worth of CBN to
be not less than US$2.5 million (the "Represented Net Worth") as at
the Last Accounting Date. In furtherance of such representation, a
copy of the management accounts dated 30 April 2007 is annexed hereto
as APPENDIX A (the "Management Accounts") and has also been delivered
to the Purchaser.
7.2 In the event that the actual Net Worth (the "Actual Net Worth") is
determined by the Purchaser to be less than the Represented Net
Worth, then: -
(a) in the case of such determination of the Actual Net Worth
taking place on or before the Completion Date, the Purchaser
may:-
(i) elect not to proceed with Completion whereupon this
Agreement shall be deemed to be rescinded AB INITIO and
of no further force or effect save for such rights and
remedies as shall have accrued in favour of the
Purchaser; or
(ii) proceed with the acquisition of the Sale Shares with a
reduction in the Consideration on a dollar for dollar
basis by deducting from the Consideration such
amount(s) representing the difference between the
Represented Net Worth and the Actual Net Worth.
(b) in the case of such determination of the Actual Net Worth
taking place after the Completion Date, the Consideration
shall be correspondingly reduced on a dollar for dollar
basis by deducting from the Consideration such amount(s)
representing the difference between the Represented Net
Worth and the Actual Net Worth.
7.3 The Parties hereby agree that the Represented Net Worth shall be
deemed to have been reduced with a corresponding reduction in the
Consideration if any of the following shall occur:-
(a) any sums due or payable to CBN by any party are in default
or overdue by more than 3 months or are not collected within
3 months of the relevant due dates or the expiry of the
relevant credit terms granted;
(b) in respect of any party with obligations under any
agreements entered into with CBN:-
(i) an order is made or an effective resolution is passed
for the winding up of such party or such party becomes
bankrupt, insolvent, is unable to pay its debts as they
fall due, stops, suspects or threatens to stop or
suspend payment of all or a material part of its debts,
or proposes or makes a general assignment or an
arrangement or composition with or for the benefit of
its creditors, or comes under judicial management, or a
receiver and/or manager is appointed in respect of the
assets or property of such party;
(ii) a distress, attachment, execution or other legal
process is levied, enforced or sued out on or against
the assets of the party;
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(iii) it is or will become unlawful for any party to such
agreement(s) to perform or comply with any one or more
of its obligations thereunder;
(iv) any event occurs which, under the laws of any
applicable jurisdiction, has an effect analogous or
equivalent to any of the events referred to in this
sub-clause 7.3 (b);
(v) if there is a bona fide dispute by such party with
respect to the amount payable or the obligation to make
payment (whether by way of counterclaim or set off or
otherwise) under any such agreement;
(c) a legal opinion is given by CBN's legal advisors for the
time being (including foreign legal advisors) or by the
Purchaser's legal advisers for the time being that any
provisions in any agreement entered into by CBN is not
valid, binding and enforceable in accordance with its
respective terms; and
(d) any assets of CBN are disposed of prior to the Completion
Date at a consideration below the value of such assets as
reflected and provided in the Audit Report.
7.4 Upon the occurrence of any of the events in Clause 7.3 above, the
Parties hereby agree that the Consideration shall be reduced by the
full amount due to CBN under the relevant agreement or other document
or in the event of a disposal of CBN's assets, the Consideration
shall be reduced by the amount representing the difference between
the consideration for which such assets were sold and the value as
reflected and provided in the Audit Report.
7.5 For the avoidance of doubt, the Parties agree that no adjustments
will be made to the Consideration in the event that the Actual Net
Worth is more than the Represented Net Worth.
8. COMPLETION
----------
8.1 Provided that this Agreement has not been rescinded by the Purchaser
and Amaru in accordance with Clause 4.2 or Clause 7.2 and subject as
hereinafter provided, Completion shall take place on the Completion
Date.
8.2 On Completion, the Vendor shall deliver to the Purchaser:-
(a) the duly executed transfer for the transfer of the Sale
Shares in favour of the Purchaser or its nominee(s)
accompanied by the relative share certificate(s)
representing the Sale Shares, which certificate(s) shall be
duly endorsed by the Vendor to the Purchaser and/or its
nominee(s), together with any other documents of transfer as
may be necessary or appropriate to vest in the Purchaser
and/or its nominee(s) the good title to the Sale Shares free
from any Encumbrances;
(b) original of tax clearance vouchers evidencing the payment of
securities transaction tax for the transfer of the Sale
Shares;
(c) written confirmation from the Vendor that each of the
warranties contained in SCHEDULE 2 is completely true and
accurate and not misleading in any material respect as at
Completion Date;
(d) written evidence or copies of all necessary consents,
licences and approvals required under the laws of ROC and
any other relevant jurisdictions where applicable, in
connection with the execution, delivery and performance of
this Agreement by the Vendor and the Purchaser and the
transactions contemplated herein;
(e) legal opinion from a law firm in the ROC acceptable to the
Parties that the transactions contemplated herein are valid,
legal and not in breach of any relevant rules and
regulations of the ROC;
(f) all the statutory and other books and records (including
financial records) duly written up to date of the Group and
its licenses and certificates for carrying on the business,
including without limitation the profit-seeking enterprise
registration certificate of the Group, and chop(s) and any
other papers, records, and documents of the Group;
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(g) a board resolution of the Company approving the registration
of the transfer of the Sale Shares and the transactions
contemplated herein;
(h) a board resolution of each of the Company and CBN in form
and substance acceptable to the Purchaser revoking all
existing authorities to the relevant banks in respect of the
operation of its bank accounts and giving authority in
favour of such persons as the Purchaser may nominate to
operate such accounts and if applicable evidence to the
reasonable satisfaction of the Purchaser, of each of the
Company and CBN having duly notified the relevant banks of
the aforesaid change in authority;
(i) evidence satisfactory to the Purchaser that all loans or
other indebtedness due or owning to the Group by the Vendor
or directors or other officers of the Group have been repaid
in full;
(j) the written resignations of [chinese symbols] and [chinese
symbols] from their directorships in CBN and Chua Xxxx Xxxx
from their directorships in the Company, to take effect on
the Completion Date with acknowledgements in form and
substance acceptable to the Purchaser signed by each of them
to the effect that each of them has no claim against the
Company or CBN, as the case may be, respectively for
compensation for loss of office, redundancy or unfair
dismissal or otherwise whatsoever;
(k) a board resolution of each of the Company and CBN approving
the appointments of Xxxxx Xxxxxxxx and Ngiam Zee Moey as
directors of the Company and CBN together with evidence to
the reasonable satisfaction of the Purchaser;
(l) a board resolution and shareholders' resolution of the
Vendor in form and substance satisfactory to the Purchaser
approving the execution and performance by the Vendor of
this Agreement and the transactions contemplated herein;
(m) a certified true copy of the certificate of incumbency and
certificate of good standing in respect of the Vendor issued
by the relevant entities/authorities on a date which is not
earlier than two (2) weeks before Completion Date;
(n) evidence of amendment to the Articles of Incorporation as
may be required by the Purchaser have being effected;
(o) such waivers or consents as the Purchaser may require to
enable the Purchaser and/or its nominee(s) to be registered
as the holders of any of the Sale Shares; and
(p) such other documents as may be required to give to the
Purchaser good title to the Sale Shares and to enable the
Purchaser or its nominee(s) to become the registered holders
thereof.
8.3 Against receipt of the documents set out in Clause 8.2 above, Amaru
and the Purchaser, as the case may be, shall:
(a) deliver to the Vendor the duly certified copies of the
relevant board and shareholder resolutions of the Purchaser
approving the execution of all relevant documents in
connection with the transfer of the Sale Shares including
the allotment and issue of the Consideration Shares to the
Vendor; and
(b) allot and issue the Consideration Shares to the Vendor, such
Consideration Shares shall be credited as fully paid-up,
free from all encumbrances and ranking pari passu in all
respects with the ordinary shares in the capital of Amaru
existing as at Completion.
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8.4 Without prejudice to any other remedies available to the Purchaser
and Amaru, if in any respect of the provisions of Clause 8.2 are not
complied with by the Vendor on the Completion Date the Purchaser
may:-
(a) defer Completion to a date not more than 14 days after the
Completion Date (and so that the provisions of this Clause 8
shall apply to Completion as so deferred);
(b) proceed to Completion so far as practicable (without
prejudice to its rights hereunder); or
(c) rescind this Agreement.
9. WARRANTIES
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The Vendor hereby represents, warrants and undertakes to the
Purchaser and Amaru as an inducement to the Purchaser and Amaru to
enter into this Agreement and it is a condition of this Agreement
that save as disclosed herein or in the Accounts, each of the
warranties contained in SCHEDULE 2 is, at the date hereof and will at
Completion be completely true and accurate and not misleading in any
material respect.
10. RESTRAINT
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10.1 The Vendor shall not directly or indirectly:-
(a) either on its own account or for any other person directly
or indirectly solicit, interfere with or endeavour to entice
away from the Group any person who is now or has been a
client, customer, employee, supplier or service provider of,
or in the habit of dealing with the Group;
(b) either alone or jointly with or as manager, agent for or
employee of any person, directly or indirectly carry on or
be engaged or concerned or interested in the business
undertaken and engaged by CBN (the "Relevant Business") or
in any business similar to the Relevant Business;
(c) act as a director or otherwise (except with the prior
written consent of the CompanyPurchaser) of any other
person, firm or company engaging directly or indirectly in
the Relevant Business which is in competition, whether
directly or indirectly with CBN;
(d) use the name "COSMACTIVE" or any colourable imitation
thereof in connection with any business not belonging to
CBN; and
(e) be engaged, concerned or interested in any business
including any business which is wholly or partly in
competition with any business carried on by CBN by itself or
themselves or in partnership, common ownership or as a joint
venture with any third party.
10.2 Save for purposes connected with the businesses of CBN, the Vendor
agrees that it shall not directly or indirectly disclose to any
person, or itself use for any purpose, and shall use its best
endeavours to prevent the publication or disclosure of information
concerning the business, accounts or finances of CBN or any of its
clients' or customers' transactions or affairs, which may, or may
have, come to its knowledge.
10.3 The restrictions contained in Clause 10.1 shall apply from the date
hereof and shall terminate at the end of a period of two (2) years
after the Completion Date. The restriction contained in Clause 10.2
shall continue to apply after the expiry or termination of this
Agreement without limit in point of time but shall cease to apply to
information or knowledge which may come into the public domain,
otherwise then by breach of the said Clause 10.2.
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10.4 The restrictions contained in this Clause are considered reasonable
by the Parties, but in the event that any such restriction shall be
found to be void but would be valid if some part thereof were
deleted, or the period or area of application reduced, such
restriction shall apply with such modification as may be necessary to
make it valid and effective.
11. CONFIDENTIALITY
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11.1 COMMUNICATIONS: All communications between the parties hereto and all
Confidential Information of the parties, shall be kept confidential
by the recipient unless or until compelled to disclose by judicial or
administrative procedures or in the opinion of their counsel, by
other requirements of law, or the recipient can reasonably
demonstrate that (a) it is or part of it is, in the public domain,
whereupon, to the extent that it is in the public domain, this
obligation shall cease or (b) it is required to be disclosed by the
recipient by operation of applicable laws or regulations or pursuant
to the rules of any stock exchange, and in such cases, this
obligation shall cease only to the extent required under the
respective circumstances.
11.2 NOTWITHSTANDING TERMINATION: The obligations contained in this Clause
shall endure, even after the termination of this Agreement, without
limit in point of time except to the extent that and until any
Confidential Information enters the public domain as set out above.
11.3 For the purposes of this Clause, "CONFIDENTIAL INFORMATION" means any
information which is proprietary and confidential to a party,
including but not limited to the terms of this Agreement, information
concerning or relating in any way whatsoever to its distributorship
arrangements, principals, any of the trade secrets or confidential
operations, processes or inventions carried on or used by a party,
any information concerning the organisation, business, finances,
transactions or affairs of a party, dealings of a party, secret or
confidential information which relates to the business or party or
any of its principals', clients' or customers' transactions or
affairs, any party's technology, designs, documentation, manuals,
budgets, financial statements or information, accounts, dealers'
lists, customer lists, marketing studies, drawings, notes, memoranda
and the information contained therein, any information therein in
respect of trade secrets, technology and technical or other
information relating to the development, manufacture, clinical
testing, analysis, marketing, sale or supply, or proposed
development, manufacture, clinical testing, analysis, marketing, sale
or supply of any products or services by a party; and information and
material which is either marked confidential or is by its nature
intended to be exclusively for the knowledge of the recipient alone.
12. NO WAIVER
---------
No failure on the part of any of the Parties to this Agreement to
exercise, and no delay on its part in exercising, any right or remedy
under this Agreement will operate as a waiver thereof nor will any
single or partial exercise of any right or remedy preclude any other
or further exercise or the exercise of any other right or remedy. The
rights and remedies provided in this Agreement are cumulative and not
exclusive of any rights or remedies provided by law.
13. CONTINUING EFFECT OF AGREEMENT
------------------------------
13.1 All provisions of this Agreement shall so far as they are capable of
being performed or observed continue in full force and effect
notwithstanding completion except in respect of those matters then
already performed.
13.2 This Agreement shall be binding on and shall enure for the benefit of
each of the Parties' successors in title or legal personal
representatives.
14. GOOD FAITH
----------
In entering into this Agreement the Parties recognise that it is
impracticable to make provision for every contingency that may arise
in the course of the performance thereof. If by reason of any
unforeseen occurrence or development the operation of this Agreement
is likely to cause any inequitable hardship to any of the Parties,
the Parties will negotiate immediately in good faith as to what
manner the terms and conditions of this Agreement may be modified in
11
order to provide an equitable solution in so far as such is possible
within the spirit of this Agreement for such unforeseen occurrence or
development provided that no modification or amendment of this
Agreement and no waiver of any of the terms and conditions hereof
shall be valid unless made in writing.
15. GENERAL INDEMNITY
-----------------
The Vendor shall indemnify the Purchaser and hold the Purchaser
harmless from and against any damages, deficiencies, losses, costs,
liabilities and expenses (including legal fees and disbursements on a
full indemnity basis) and in particular, but without prejudice to the
generality of the foregoing, from and against any depletion or
diminution of the assets, resulting directly or indirectly from or
arising out of any breach of any of the representations, warranties,
covenants and agreements made by the Vendor herein and further any
claim for any taxation with respect to income tax, company tax,
property tax, withholding tax, stamp duty, customs and other export
and import duties (to the extent that such claim exceeds the amount
of any provision or reserve therefor in the Accounts and arises from
any dispute with or failure to fully and accurately disclose all
facts and circumstances in respect of such taxation to the relevant
authorities) made against the Group where such claim arises out of
the conduct of the business of the Group or out of any act or
omission of the Group before Completion.
16. ANNOUNCEMENT
------------
Except as required by law, the Vendor shall not procure that the
Group make or issue any press release, other public statement,
disclosure or any publicity concerning this Agreement, the Group
without the prior consent of the Purchaser.
17. COSTS
-----
17.1 The Vendor shall bear any stamp duties and/or other administrative
fees chargeable on the transfer of the Sale Shares from the Vendor to
the Purchaser.
17.2 Subject to the provisions of Clause 17.1 above, the Vendor shall bear
all legal and other costs and expenses incurred by it in connection
with this Agreement and the sale of the Sale Shares and the Purchaser
shall bear all legal and other costs and expenses incurred by it in
connection with this Agreement and the purchase of the Sale Shares.
18. TIME OF ESSENCE
---------------
Any time or period mentioned in any provision of this Agreement may
be extended by mutual agreement between the Parties hereto but as
regards any time, date or period originally fixed or any time, date
or period so extended as aforesaid time shall be of the essence.
19. NOTICES
-------
Any such notice, demand or communication shall be deemed to have been
duly served (if given by electronic mail) immediately upon receiving
acknowledgement of receipt via the electronic mail, from the intended
recipient or (if given or made by telefax) immediately or (if given
or made by letter) three (3) days after posting and in proving the
same it shall be sufficient to show that the envelope containing the
same was duly addressed, stamped and posted.
20. ENTIRE AGREEMENT
----------------
This Agreement embodies the entire terms and conditions agreed upon
by the Parties as to the subject matter of this Agreement and
supersedes and cancels in all respects all previous agreements,
letters of intent, and undertakings entered into amongst the Parties
with respect to the subject matter hereof, whether such be written or
oral.
12
21. PARTIAL INVALIDITY
------------------
The illegality, invalidity or unenforceability of any provision of
this Agreement under the law of any jurisdiction shall not affect its
legality, validity or enforceability under the law of any other
jurisdiction nor the legality, validity or enforceability of any
other provision.
22. WAIVER
------
No failure or delay on the part of the Purchaser in exercising any
power or right hereunder upon default of the Vendor shall operate as
a waiver thereof nor shall any single or partial exercise of such
right or power preclude any other or further exercise of any other
right or power hereunder.
23. EXECUTION IN COUNTERPARTS
-------------------------
This Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same
instrument.
24. RIGHTS OF THIRD PARTIES
-----------------------
Any person who is not a party to this Agreement (whether or not such
person shall be named, referred to, or otherwise identified, or form
part of a class of persons so named, referred to or identified, in
this Agreement) shall have no right whatsoever to enforce this
Agreement or any of its terms.
25. GOVERNING LAW AND JURISDICTION
------------------------------
25.1 This Agreement shall be governed by, and construed in accordance
with, the laws of Singapore.
25.2 Each of the Parties hereby submits irrevocably to the non-exclusive
jurisdiction of the courts of Singapore.
[THE REST OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
13
IN WITNESS WHEREOF this Agreement has been entered into the day and year first
above written.
Signed by )
for and on behalf of DOMAINE GROUP LIMITED )
in the presence of:- )
Signed by )
for and on behalf of TREMAX INTERNATIONAL LIMITED )
in the presence of:- )
Signed by )
for and on behalf of AMARU, INC. )
in the presence of:- )
14
SCHEDULE 1
----------
PARTICULARS OF CBN
NAME : Cosmactive BroadBand Networks Co., ltd.
COMPANY UNIFORM NUMBER : 70770184
REGISTERED ADDRESS : 6 F, Xx. 00-0 Xxxxxxxx Xxxx, Xxx Xxxx
Xxxxxxxx, Xxxxxx 000, Xxxxxx
DATE AND PLACE OF INCORPORATION : ROC 20 April 2000
SHARE CAPITAL : 30,900,000 shares of NT$10 each
DIRECTORS : [chinese symbols] (Xxxxx, Xxxx-Ho)
[chinese symbols]
[chinese symbols]
[chinese symbols] (Xxxx Xxxxx)
SUPERVISORS : [chinese symbols]
[chinese symbols]
[chinese symbols]
15
SCHEDULE 2
----------
WARRANTIES
----------
Save as disclosed in the Accounts, the Vendor hereby warrants to the Purchaser
and Amaru with the intent that the provisions of this Schedule shall at
Completion continue to have full force and effect and are true, complete and
accurate and not misleading in all material respects.
PART A - GENERAL
----------------
1. INFORMATION
-----------
1.1 The facts set out in the recitals to this Agreement and in this
Agreement are true, complete and accurate in all material respects
and all information contained herein and which has been given by any
of the directors or officers or professional advisers of each of the
Vendor and the Group to any of the directors or officers or
professional advisers of the Purchaser in connection with this
Agreement was when given true, complete and accurate in all respects
and after making due and careful enquiries the Vendor is not aware of
any fact or matter not disclosed in writing to the Purchaser which
renders any such information untrue, inaccurate or misleading or the
disclosure of which might reasonably affect the willingness of the
Purchaser to purchase the Sale Shares or the price at or terms upon
which the Purchaser would be willing to purchase them.
1.2 The Vendor will and the Vendor will procure that the Group takes all
such steps within its power to provide all such information and
documents with regard to the business and assets of the Group as the
Purchaser may reasonably require and will give the Purchaser and its
solicitors such assistance and facilities as they may reasonably
require to enable it to fully investigate the accuracy of the
warranties herein contained.
2. MEMORANDUM AND ARTICLES OF ASSOCIATION
--------------------------------------
2.1 The copies of the Memorandum and Articles of Association of the
Vendor and the Articles of Incorporation of the Group delivered to
the Purchaser are true copies and have attached thereto copies of all
such resolutions and agreements as are required by law to be
delivered to the Registrar of Companies in ROC and any other relevant
jurisdictions where applicable, as the case may be, for registration.
2.2 There is no provision in the Memorandum and Articles of Association
of the Vendor and the Articles of Incorporation of the Group and no
provision of any existing contract, agreement or instrument binding
on the Group that any of the assets or property of the Group which
has been or would be contravened by the execution and delivery of
this Agreement and such other documents and instruments as are
contemplated in this A greement or by the performance or observance
by the Vendor and Group of any of the terms hereof or thereof.
3. DIVIDENDS
---------
No dividends or other distributions of profits have been declared
made or paid by the Group since the Last Accounting Date and all
dividends or distributions of profits declared made or paid since the
date of incorporation of the Group has been declared made or paid in
accordance with its Articles of Association.
4. LEGAL MATTERS
-------------
4.1 Each entity within the Group has full power and authority to carry on
its business as now or previously carried on, in particular, it has
the requisite approvals and authority to carry on its business as now
or previously carried on.
16
4.2 There are no claims, actions, suits, proceedings, labour disputes or
investigations pending or, threatened, before any national, state or
local court or governmental or regulatory authorities, domestic or
foreign, or before any arbitrator of any nature, brought by or
against the Vendor or the Group, or any of the Vendor and the Group's
officers, directors, employees or agents involving, affecting or
relating to the Vendor or the Group or transfer of the Sale Shares,
nor is any basis known to any of the Vendor or the Group's directors
or officers for any such action, suit, proceeding or investigation.
4.3 Neither the Vendor nor any entity within the Group has gone into
liquidation or passed any resolution for winding-up, nor has any
petition for winding up or for any of them to be placed under
judicial management been presented. No receiver or receiver or
manager of the undertaking or assets (or any part thereof) of the
Vendor or any entity within the Group has been appointed or is
threatened or expected to be appointed.
4.4 Neither the Vendor nor any entity within the Group defaulted nor is
it in default of any of its obligations or undertakings contained in
any contracts, agreements or instruments binding on it or any of its
assets or property nor has any event of default (however termed)
occurred or is continuing under any such contracts, agreements or
instruments nor has any borrowing or indebtedness of each of them
whether as principal or surety become or is capable of being declared
payable prior to its stated maturity.
4.5 The Vendor has and will have full power and authority and has taken
all necessary corporate action and obtained all requisite corporate
approval to enter into and perform this Agreement which constitute or
will constitute valid and binding obligations on it in accordance
with the terms hereof, in particular, either that the sale of the
Sale Shares herein does not amount to a disposal of the whole or
substantially the whole of the Vendor's undertaking or property or in
the event it does, that the sale of the Sale Shares herein has been
approved by the Vendor in general meeting.
5. BUSINESS
--------
5.1 Since the Last Accounting Date:-
(a) the business of each entity within the Group has been
continued in a normal manner;
(b) neither the turnover nor the financial nor trading position
of the Group has adversely and materially changed;
(c) the Group has not borrowed any money;
(d) the Group has not learnt of any circumstances making bad or
doubtful any debt; and
(e) there has been no change in any method of accounting or
accounting practice of the Group and the Group has kept its
books of accounts, files and records other than in the
ordinary course and other than in accordance with existing
practice.
5.2 Since the Last Accounting Date:-
(a) the business of the Group has not been materially or
adversely affected by the loss of any important customer or
by any abnormal factor not affecting similar businesses to a
like extent; and
(b) after making due and careful enquiries the Vendor is not
aware of any facts which are likely to give rise to any such
effects.
5.3 Each entity within the Group has all the necessary licences and
consents for the proper carrying out of its business. All statutory,
municipal and other requirements applicable to and all conditions
applicable to any licences and consents involved in the carrying out
of the business of each entity within the Group as now or previously
carried on have been complied with and the Vendor is not aware of any
intended or contemplated refusal or revocation of any such licence or
consent.
17
6. ASSETS
------
6.1 No statutory or contractual notices have been served on the Group in
respect of its assets or properties which in any way might impair,
prevent or otherwise interfere with the Group's use or proprietary
rights in its assets or properties.
6.2 All the fixed and movable equipment and vehicles used in connection
with the business of the Group and all other assets of or represented
as belonging to the Group are the absolute property of the Group save
as those held under hire purchase or lease or rental agreements and
the Group has not defaulted in any of the material provisions of any
hire or hire purchase or lease or rental agreement, or agreement for
payment on deferred terms or xxxx of sale or trading contract to
which it is a party and the Group has observed and performed all the
terms and conditions on its part to be observed and performed in all
such agreements trading contracts and bills.
6.3 Where any of the Group's assets or property comprise receivables or
debts due to the Group (including those arising from loans, credit
facilities made by the Group and hire purchase agreements and lease
agreements entered into by the Group), that the Group has not
assigned (whether by factoring, forfeiting, absolutely or by way of
security), transferred, pledged, encumbered, charged, sold or
disposed of such receivables or debts or agreed to do any of the
aforesaid.
7. CONTRACTS
---------
7.1 No uncompleted contract or commitment of a Material Amount (as
defined below) has been entered into or incurred by the Group which:-
(a) is outside its ordinary and proper course of business or is
of an onerous or long-term nature; or
(b) involves or is likely to involve obligations or liabilities
which by reason of their nature or magnitude ought
reasonably to be made known to the Purchaser.
For the purpose of this paragraph 7.1, "Material Amount" means an
amount which by itself or in the aggregate exceeds US$10,000.00.
7.2 Each entity within the Group:-
(a) does not, since the Last Accounting Date, have any material
capital commitment or will pending Completion undertake any
material capital commitment and for the purpose of this
paragraph "material capital commitment" means commitment(s)
which by itself or in the aggregate exceeds US$10,000.00;
(b) is not party to any contract which cannot be terminated by
three months' notice or less or (where not reduced to
writing) by reasonable notice without giving rise to any
claim for damages or compensation; and
(c) has not committed any breach of any of its obligations or
any of the terms and conditions of any material contract and
will continue to perform all such obligations and to observe
all such terms and conditions up to Completion.
7.3 There are:-
(a) no loans made by any entity within the Group to any of its
shareholders or directors, or alternatively, any and all
such loans have been waived in writing by the relevant
shareholder or director;
(b) no debts owing by any entity within the Group other than
debts which have arisen in the ordinary and normal course of
business;
(c) no debts owing by any entity within the Group to any of its
employees, shareholders or directors;
18
(d) no securities (including guarantees or indemnities given by
any person) for any such loans or debts as aforesaid; and
(e) no guarantees or indemnities given by any entity within the
Group for the liabilities of or for the benefit of any third
party (including any of its directors, shareholders or
employees).
7.4 Each entity within the Group has not by reason of any default by it
in any of its obligations become bound or liable to be called upon to
repay prematurely any loan capital or borrowed monies.
7.5 There are no existing contracts or engagements to which any entity
within the Group is a party and in which any of its shareholders
and/or directors are interested.
7.6 The terms of all leases, tenancies, licences, concessions and
agreements of whatever nature to which each entity within the Group
is a party have been duly complied with by all the Parties thereto
and no such lease, tenancy, licence, concession or agreement will
become subject to avoidance, revocation or be otherwise breached or
affected upon or in consequence of the making or implementation of
this Agreement.
8. INTELLECTUAL PROPERTY
---------------------
8.1 No disclosure has been made to any person of any of the industrial
know-how or any intellectual property rights or the financial or
trade secrets of the Group save in its ordinary and proper course of
business and upon (in the case of industrial know-how) the Group
having secured the confidential nature of any such disclosure.
8.2 (a) There are no claims or threatened claims against any entity
within the Group for infringement of:-
(i) the usage of any patent, registered designs,
know-how or trade secrets, copyrights, trade
marks, service marks, trade and business names
or similar intellectual property rights (whether
registered or not) ("Intellectual Property") (or
which has been used) by it;
(ii) the commercial monopoly rights of third parties
or which has been disclosed to it by third
parties under licence or similar arrangements
and no such claims have been settled by the
giving of any undertakings which remain in
force; and
(b) shareholders or officers of each entity within the Group
have not knowingly infringed any Intellectual Property
registered in the name of an entity within the Group or in
which it has a beneficial interest.
9. EXISTING FACILITIES AND GUARANTEES
----------------------------------
9.1 The existing banking facilities as at the date hereof amount to an
aggregate total of NT$7,000,000.
9.2 the Group has not entered into or is bound by any guarantee,
indemnity, undertaking, mortgage, charge, debenture, lease or unusual
or other encumbrances under which any liability or contingent
liability is outstanding.
10. INSURANCE
---------
All the assets of the Group which are of an insurable nature have at
all material times been and are at the date hereof insured in amounts
reasonably regarded as adequate against fire and other risks normally
insured against by companies carrying on similar businesses or owning
property of a similar nature and the Group has at all material times
been and is at the date hereof adequately covered against accident,
third party errors and omissions and other risks normally covered by
insurance by such companies. The particulars of the insurances of the
Group which have been supplied to the Purchaser are true and correct.
19
In respect of all such insurances:-
(a) all premiums have been duly paid to date;
(b) all the policies are in force and are not voidable on
account of any act, omission or non-disclosure on the part
of the insured party; and
(c) the Group will keep and maintain all existing insurance
coverages in respect of its businesses up to Completion.
11. SHARE CAPITAL/LOAN CAPITAL
--------------------------
11.1 The Vendor is the registered holder of the Sale Shares and is
entitled to sell and transfer to the Purchaser the full legal and
beneficial ownership of the Sale Shares and that the Sale Shares are,
and will on the Completion Date be, free from all charges, mortgages,
liens and other encumbrances.
11.2 The Sale Shares constitute 100% of the issued and allotted share
capital of the Company. The Company legally and beneficially owns own
80% of the total issued and paid up share capital of CBN as at the
date of this Agreement and will own no less than 80% of the total
issued and paid up share capital of CBN at Completion Date.
11.3 There are no outstanding subscription agreements, options or rights
to acquire from the Group any unissued shares or which otherwise
confer on the holder or holders thereof any right (whether or not
upon the happening of any contingency or after any lapse of time and
whether or not upon the payment of delivery of any consideration) to
acquire any unissued shares of any class nor is the Group committed
to grant or issue any such option, warrant, right or security.
11.4 No securities granted by the Group to its bankers or others are
liable to be called up by reason of the transfer of the Sale Shares
contemplated herein or, alternatively, if so liable, the Group will
procure from the relevant parties a waiver of any right so to do.
11.5 There are no agreements in force which call for the present or future
issue of or grant to any person the right to call for the issue of
any share or loan capital of the Group, and no share or loan capital
has been created and/or issued or agreed to be issued by the Group
since the Last Accounting Date.
12. BOOK DEBTS AND ABSENCE OF UNDISCLOSED LIABILITIES
-------------------------------------------------
12.1 None of the book debts which are included in the Accounts or which
have subsequently arisen have been outstanding for more than 3
months, have realised or will realise in the normal course of
collection their full value as included in the Accounts or in the
books of the Group after taking into account the provisions for bad
and doubtful debts in the Accounts.
12.2 None of the book debts which are included in the Accounts have been
released on terms that any debtor pays less than the net book value
after any provision made in the Accounts as at the Last Accounting
Date or have been written off or have proved to any extent to be
irrevocable or is now regarded as being irrevocable.
12.3 There are no known reasons or circumstances why the book debts which
are included in the Accounts should not be collectable, realisable
and enforceable in full on their respective due dates.
12.4 Save as disclosed herein, the Group does not have any indebtedness or
liability absolute or contingent, known or unknown relating to the
Group, which is not shown or provided for in the Accounts. Except as
shown in the Accounts, the Group is not directly or indirectly liable
upon or with respect to (by discount, repurchase agreements or
otherwise), or obliged in any other way to provide funds in respect
of, of obliged in any other way to provide funds in respect of, or to
guarantee or assume, any debt, obligation or dividend of any person.
20
13. EMPLOYEES
---------
13.1 Copies of service agreements entered into between the Group and its
directors or employees have been furnished to the Purchaser. There
are not in existence any service agreements with its directors or
with employees which cannot be terminated by three (3) months' notice
or less without giving rise to any claim for damages or compensation;
13.2 There are not in existence any contracts of service with the
directors or employees of the Group which carry remuneration at a
rate in excess of NT$2,000,000 per annum.
13.3 There are not in existence nor has any proposal been announced to
establish any retirement, death or disability benefit schemes for
directors or employees or obligations to or in respect of present or
former directors or employees or obligations to or in respect of
present or former directors or employees with regard to retirement,
death or disability pursuant to which the Group is or may become
liable to make payments and no pension or retirement or sickness
gratuity is currently being paid or has been promised by the Group to
or in respect of any former director or former employee.
13.4 There are no amounts owing to any present or former directors other
than remuneration (including directors' fees) accrued due or for
reimbursement of business expenses;
13.5 Since the Last Accounting Date, no liability has been incurred by the
Group for breach of any contract of service, for redundancy payments
or for compensation for wrongful dismissal or unfair dismissal or for
failure to comply with any order for the reinstatement or
re-engagement of any employee and no gratuitous payment has been made
or promised by the Group in connection with the termination or
proposed termination of employment of any present or former director
or employee;
13.6 No collective or other agreement has been entered by the Group with
any relevant union representing any group of employees of the Group;
and
13.7 The Group is not involved in any industrial or trade dispute or any
dispute or negotiation regarding a claim of material importance with
any trade union or organisation or body of employees.
14. The records, statutory books and books of account of the Group are
duly entered up and contain true, full and accurate records of all
matters to be dealt with therein and all such books and all records
and documents (including documents of title) which are its property
are in its possession or under its control and all returns required
to be made to the Registrar of Companies and any relevant authority
have been duly and correctly made.
15. The Group has no interest in any other company partnership or
business. The Group is not participant in any joint venture or
partnership. The Group does not own or have any interest in any other
corporation.
16. Until the Completion Date when the persons nominated by the Purchaser
will be appointed as directors, no new or additional directors of the
Group will be appointed.
PART B - ACCOUNTS
-----------------
17. The Accounts of each entity within the Group have been prepared in
accordance with the applicable statutes and regulations (a true copy
of the Accounts certified by the relevant Secretary or director of
each entity within the Group has been delivered to the Purchaser) and
the Accounts of each entity within the Group:-
21
17.1 have been prepared on a consistent basis in accordance with
accounting principles, standards and practices generally accepted
internationally so as to give a true and fair view of the state of
affairs of such entity at the Last Accounting Date and of the profits
or losses for the period concerned and as at the Last Accounting Date
made:-
(a) adequate provision for all actual liabilities;
(b) adequate provision for all contingent liabilities;
(c) adequate provision for depreciation, amortisation and
obsolescence of assets; and
(d) provision reasonably regarded as adequate for all bad and
doubtful debts;
and are not affected by any unusual or non-recurring item; and
17.2 include all such reserves and provisions for taxation as are
materially necessary to cover all tax liabilities (whether or not
assessed) of such entity up to the date thereof.
18. All proper and necessary books of account, minute books, registers
and records have been maintained by each entity within the Group are
in the possession of such entity and contain accurate information in
accordance with generally accepted principles relating to all
transactions to which such entity has been a party.
19. The value of the Net Worth of CBN is not less than US$2.5 million.
The Vendor after making all due and careful enquiries are not aware
of any cause or reason whatsoever which would or is likely to result
in a reduction of the Net Worth of CBN.
PART C - TAXATION
-----------------
20. All Tax Returns required to be filed before the Completion Date in
respect of the Group relating to the period preceding and including
31 December 2006 have been (or will have been by the Completion Date)
filed, and the Group has (or will have by the Completion Date) paid
or otherwise made full provision or reserve in the Accounts for the
payment of all Taxes required to be paid in respect of the periods
covered by the Accounts up to and including 31 December 2006 and has
made full provision or reserve for the payment of all Taxes with
respect to periods ended up to and including the last Accounting
Date. All Taxes in respect of the periods up to and including the
last Accounting Date of the Group have been paid or adequately
provided for and there are no proposed additional tax assessment
against it not adequately provided for in the Accounts.
21. All necessary information, notices, computations and returns have
been properly and duly submitted by the Group's tax agents to all
relevant taxation or excise authorities in respect of taxation for
all relevant periods up to the date hereof and will continue to be
submitted until Completion in respect of such periods up to the
Completion Date and there is no unresolved correspondence or dispute
with any of those authorities.
22. All documents in the enforcement of which the Group may be interested
have been duly stamped and no document belonging to the Group now or
at Completion which is subject to stamp duty is or will be unstamped
or insufficiently stamped; nor has any relief from such duty been
improperly obtained, nor has any event occurred as a result of which
any such duty from which the Group has obtained relief, has become
payable; and all transfer duty payable upon any transfer of the
Group`s shares before Completion has been duly paid.
23. All income tax, property tax, customs and excise duties, stamp
duties, and other charges and levies assessed or imposed by any
government or governmental or statutory body which have been assessed
or are lawfully assessable upon the Group and which are due and
payable have been paid by the Group and adequate provision has been
made in the Accounts for all such taxes, duties, charges and levies
chargeable or payable in respect of the period up to the Completion
Date.
22
APPENDIX A
----------
MANAGEMENT ACCOUNTS OF CBN
--------------------------
AS AT THE LAST ACCOUNTING DATE
------------------------------
On file with the Company
23
