EXHIBIT 4.20
DATED THE 30TH DAY OF JANUARY, 2002
THE ASHTON TECHNOLOGY GROUP, INC.
("SELLER")
AND
XX XXXXXX GROUP LIMITED
("PURCHASER")
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AGREEMENT FOR SALE AND
PURCHASE OF SHARES
IN RESPECT OF THE SHARES IN
KINGSWAY ATG ASIA LIMITED
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THE AGREEMENT is made the 30th day of January, 2002.
BETWEEN
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(1) THE ASHTON TECHNOLOGY GROUP, INC., a company incorporated under the
laws of Delaware, United States of America whose principal business
address is situate at 11 Penn Center, 0000 xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, XX 00000, XXX. (the "SELLER"); and
(2) XX XXXXXX GROUP LIMITED, a company incorporated under the laws of
British Virgin Islands whose registered address is situate at P.O. Box
957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin
Islands (the "Purchaser").
WHEREAS:
(A) The Seller is the beneficial owner of 47,000,000 fully-paid ordinary
shares in the issued share capital of Kingsway ATG Asia Limited
("KAA").
(B) KAA is a company incorporated under the laws of the British Virgin
Islands and its business address is situate at 0xx Xxxxx, Xxxxxxxxx
Xxxxx, 00 Xxxxxxxx Xxxx, Xxxx Xxxx.
(C) The Purchaser agrees to purchase from and the Seller agrees to sell his
shares in KAA to the Purchaser.
NOW, IT IS HEREBY AGREED as follows:
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1. INTERPRETATION
1.1 In this agreement, including the schedules, the following words and
expressions shall, except where the context otherwise requires, have
the following meanings:-
"BUSINESS DAY" means a day (excluding Saturday and Sunday) on which
banks in Hong Kong are open for business throughout their normal
business hours;
"COMPLETION" means completion of the sale and purchase of the Sale
Shares in accordance with Clause 5 hereof;
"COMPLETION DATE" means 30 March 2002;
"CONDITIONS" means the conditions precedent set out in Clause 4 hereof;
"GOVERNMENTAL APPROVAL" means any consent, approval, authorization,
waiver, permit, grant, franchise, concession, agreement, license,
certificate, exemption, order, registration, declaration, filing,
report or notice of, with, by or to any Governmental Authority;
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SALE AND PURCHASE AGREEMENT
"GOVERNMENTAL AUTHORITY" means any nation or government, any
international or transnational organ of which two or more nations or
governments are members or any state or other subdivision of any of the
foregoing;
"HONG KONG" means the Hong Kong Special Administrative Region of the
PRC;
"LAW" means any of (i) constitutions, treaties, statutes, laws
(including the common law), codes, rules, regulations, ordinances or
orders of any Governmental Authority, (ii) Governmental Approvals or
(iii) orders, decisions, injunctions, judgments, awards and decrees of
or agreements with any Governmental Authority;
"SALE SHARES" means the 47,000,000 fully paid ordinary shares in the
issued share capital of KAA legally and beneficially owned by the
Seller and registered under their name in KAA's member register;
"US$" means United States Dollars, the lawful currency of the United
States of America;
"WARRANTIES" means the representations and warranties of the Seller as
set out in Clause 6 hereof.
1.2 In this agreement:-
(a) references to Recitals, Clauses, Sub-clauses, Schedules and
Exhibits are to the clauses and sub-clauses of, and the recitals,
schedules and exhibits to, this agreement;
(b) references to any statutory provision or any rule or regulation
(whether or not having the force of law) shall be construed as
reference to the same as amended, varied, modified, consolidated
or re-enacted from time to time and to any subordinate legislation
made under such statutory provision;
(c) references to parties are to parties of this agreement;
(d) words importing the singular include the plural and vice versa,
words importing one gender include every gender, and references to
persons include bodies corporate and unincorporated; and
(e) headings are for ease of reference only and shall not affect the
interpretation of this agreement.
2. SALE AND PURCHASE OF SHARES
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2.1 The Seller agrees to sell and the Purchaser agrees to purchase the Sale
Shares for the price and upon the terms and conditions contained in
this agreement.
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SALE AND PURCHASE AGREEMENT
2.2 The total price for the Sale Share shall be HK$23,400,000 which shall
be paid by the Purchaser to the Seller on or before the Completion Date
or such later date agreed by both parties in writing.
2.3 The Purchaser will issue a HK$23,400,000.00 zero-coupon bond ("NOTE")
to the Seller and the Seller will accept the Note as full satisfaction
of the consideration in Clause 2.2 payable to the Seller by the
Purchaser.
3. NO ENCUMBRANCES
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3.1 The Sale Shares shall be sold to the Purchaser free from all charges,
liens, encumbrances, equities and other adverse claims and interests
together with all rights now and hereafter attaching thereto including
the right to all dividends and other distributions hereafter declared,
paid or made in respect thereof.
4. CONDITIONS PRECEDENT
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4.1 The obligations of the Purchaser under this agreement to consummate the
purchase of the Sale Shares hereunder shall be subject to the
satisfaction, at or prior to the Completion Date, of each of the
following conditions:
(a) all of the Warranties made by the Seller in this agreement shall
be true and correct as of the Completion Date as if made on and as
of the Completion Date; and
(b) all of the undertakings and obligations that are required of the
Seller to be performed or complied with pursuant to this agreement
on or prior to the Completion Date shall have been duly performed
and complied with.
4.2 The Purchaser may waive all or any of the Conditions in whole or in
part at any time by written notice to the Seller.
4.3 The Seller shall use all reasonable endeavours to procure that the
Conditions are fulfilled on or before the Completion Date or such later
date as the Seller and the Purchaser may agree in writing.
5. COMPLETION
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5.1 The sale and purchase of the Sale Shares shall be completed on or
before the Completion Date or such later date agreed by both parties in
writing.
5.2 The Completion shall occur at such place and time as the Seller and the
Purchaser may agree.
5.3 The Seller shall on completion deliver or cause to be delivered to the
Purchaser a certified true copy of the resolutions of the board of
directors of the Seller approving and authorizing the execution,
delivery and performance by the Seller of, and the consummation of the
transactions contemplated by, this agreement, the sale of the Sale
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SALE AND PURCHASE AGREEMENT
Shares to the Purchaser, the execution and delivery of the brought
note(s) and sold note(s) and instrument(s) of transfer in relation to
the Sale Shares in favour of the Purchaser or its nominee(s) and other
agreements and documents contemplated to be entered into by the Seller
hereby.
5.4 Upon completion, all of the Sale Shares shall be sold and purchased
simultaneously.
5.5 The Seller shall indemnify and hold harmless the Purchaser and its
successors and assigns from and against any and all losses,
liabilities, claims, damages, costs and expenses (including, without
limitation, any legal cost and expenses incurred in connection with
investigating, prosecuting and/or defending any action or proceeding
arising therefrom) which the Purchaser may incur or sustain from or as
a result of any of the Warranties not being true or correct or any
breach of undertaking or covenant by the Seller under this agreement.
This indemnity shall be without prejudice to any other rights and
remedies of the Purchaser in relation to any breach of any Warranty and
all other rights and remedies are expressly reserved to the Purchaser.
The indemnity provided herein shall survive the payment for or delivery
of the purchase consideration as contemplated by this agreement.
6. REPRESENTATIONS AND WARRANTIES
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6.1 The Seller represents and warrants to the Purchaser as at the date
hereof and as of the Completion Date as follows:
(a) Except for the Share Mortgage for Ashton Technology Group dated 30
January 2002, the Seller is the beneficial owner of the Sale
Shares and the Sale Shares are free from all charges, liens,
encumbrances, equities and other adverse claims and interests.
(b) The Seller had obtained the approval of any third party for the
execution and delivery by the Seller of this agreement, the
performance by him of his obligations hereunder and the
consummation by it of the transactions contemplated hereby.
(c) No Governmental Approval is required for the execution and
delivery by the Seller of this agreement, the performance by him
of his obligations hereunder and the consummation by it of the
transactions contemplated hereby.
6.2 The Purchaser represents and warrants to the Seller as at the date
hereof and as of the Completion Date as follows:
(a) The Purchaser is a company duly organized and validly existing
under the laws of British Virgin Islands and is in good standing
under such laws.
(b) The Purchaser has all requisite corporate right, power and
authority to execute this Agreement and to consummate the
transaction contemplated hereby.
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SALE AND PURCHASE AGREEMENT
(c) The execution and delivery of this Agreement do not, and the
consummation of the transaction contemplated hereby will not
conflict with or result in any violation of any provision of the
Purchaser's constitution documents.
7. FURTHER ASSURANCE
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7.1 Each party shall execute and perform such further documents and acts as
may reasonably be required to give effect to the respective obligations
of the parties under this agreement.
8. MISCELLANEOUS
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8.1 Expenses. Each party hereto shall bear its own expenses, costs and fees
in connection with the transactions contemplated hereby, including the
preparation, execution and delivery of this agreement and compliance
herewith.
8.2 Notices. All notices, requests, demands or other communication required
or permitted to be given under this agreement shall be in writing and
may be sent by post (first class postage prepaid) or delivered by hand
or given by facsimile or by courier to the address or fax number from
time to time designated. The initial address so designated by each
party shall be the address shows on the first page of this Agreement.
Any such notice or communication shall be sent to the party to whom it
is addressed and must contain sufficient reference and/or particulars
to render it readily identifiable with the subject matter of this
agreement. All such notices, requests, demands and other communications
shall be deemed to have been given (i) if by personal delivery on the
day of such delivery, (ii) if by certified or registered airmail, on
the seventh day after the mailing thereof, (iii) if by next-day or
overnight mail or delivery, on the day delivered, (iv) if by telecopy
or telegram, on the next day following the day on which such telecopy
or telegram was sent, provided that a copy is also sent by certified or
registered airmail.
8.3 Governing Law. This agreement shall be governed in all respects,
including as to validity, interpretation and effect, by the laws of
Hong Kong without giving effect to the conflict of laws rules thereof
and the parties agree to submit to the non-exclusive jurisdiction of
the Hong Kong courts in respects of this agreement.
8.4 Binding Effect. This agreement shall be binding upon and inure for the
benefit of the parties hereto and their respective successors and
assigns, provided that no assignment hereof may be made by any party
hereto except with the prior written consent of the other party.
8.5 Amendment, Waivers. No amendment or modification of this agreement, and
no waiver of any provision hereunder, shall be valid or binding unless
set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification or waiver is sought. Any
such waiver shall constitute a waiver only with respect to the specific
matter described in such writing and shall in no way impair the rights
of the party granting such waiver in any other respect or at any other
time. Neither the waiver by any party hereto of a breach of or a
default under any of the provisions of this agreement, nor
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SALE AND PURCHASE AGREEMENT
the failure by any of the parties, on one or more occasions, to enforce
any of the provisions of this Agreement or to exercise any right or
privilege hereunder, shall be construed as a waiver of any other breach
or default of a similar nature, or as a waiver of any of such
provisions, rights, or privileges hereunder.
8.6 Remedies. The rights and remedies herein provided are cumulative and
none is exclusive of any other, or of any rights or remedies that any
party may otherwise have. The rights and remedies of any party based
upon, arising out of or otherwise in respect of any inaccuracy or
breach of any Warranty shall in no way be limited by the fact that the
act, omission, occurrence or other state of facts upon which any claim
of any such inaccuracy or breach is based may also be the subject
matter of any other representation, warranty, covenant or agreement as
to which there is no inaccuracy or breach.
8.7 Entire Agreement. This agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements and
understandings, both written and oral, between the parties hereto with
respect to the subject matter hereof.
8.8 Severability. If any provision, including any phrase, sentence, clause,
clause or sub-clause, of this Agreement is invalid, inoperative or
unenforceable as for or against any party hereto for any reason, such
circumstances shall not have the effect of rendering such provision in
question invalid, inoperative or unenforceable in any other case or
circumstance or as for or against the other parties hereto, or of
rendering any other provision herein contained invalid, inoperative, or
unenforceable to any extent whatsoever.
8.9 No Implied Rights. Nothing herein express or implied, is intended to or
shall be construed to confer upon or give to any person, firm
corporation or legal entity, other than the parties hereto and their
affiliates, any interests, rights, remedies or other benefits with
respect to or in connection with any agreement or provision contained
herein or contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of
the date first above written.
SIGNED by )
For and on behalf of )
THE ASHTON TECHNOLOGY GROUP, INC. )
in the presence of:- )
/s/Xxxxx X. Xxxxxxxx /s/Xxxxxxx X. Xxxxxxxx
SIGNED by )
For and on behalf of )
XX XXXXXX GROUP LIMITED )
in the presence of:- )
/s/Xxxxx X. Xxxxxxxx /s/Xxxxxxx Xxx
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