Exhibit 10(a)1
DATE : 5th December 2007
CHINA ENTERPRISES LIMITED
(as Vendor)
AND
XXXXXX PACIFIC LIMITED
(as Purchaser)
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AGREEMENT
FOR SALE AND PURCHASE OF THE ENTIRE ISSUED SHARE CAPITAL OF
MANWIDE HOLDINGS LIMITED
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THIS AGREEMENT is dated the 5th day of December 2007
BETWEEN:
(1) CHINA ENTERPRISES LIMITED, a company incorporated under the laws of Bermuda
with limited liability and having its registered office situated at
Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxxx XX 11, Bermuda (the "VENDOR");
and
(2) XXXXXX PACIFIC LIMITED, a company incorporated under the laws of British
Virgin Islands with limited liability and having its registered address
situated at OMC Xxxxxxxx, P.O. Box 3152. Road Town, Tortola, British Virgin
Islands (the "PURCHASER").
WHEREAS:
(A) MANWIDE HOLDINGS LIMITED (the "COMPANY") is a company incorporated with
limited liability under the laws of the British Virgin Islands and has an
authorized share capital of US$50,000 divided into 50,000 shares (the
"SHARES") of US$1.00 each, of which 1 Share (the "SALE SHARE") has been
issued and are fully paid, which is beneficially owned by the Vendor.
Further information and particulars of the Company as at the date of this
Agreement and as at Completion are set out in Part A of Schedule 1.
(B) THE ROSEDALE LUXURY HOTEL & SUITES LIMITED ("ROSEDALE") is a company
incorporated with limited liability under the laws of the PRC and has a
registered share capital of US$20,000,000.00, fully paid and is
beneficially owned by the Company. Further information and particulars of
Rosedale as at the date of this Agreement and as at Completion are set out
in Part B of Schedule 1.
(C) The Vendor has agreed to sell and the Purchaser has agreed to purchase or
procure the purchase of the Sale Share on the terms and conditions of this
Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 In this Agreement (including the Recitals and the Schedules), unless the
context otherwise requires, the following words and expressions shall have
the following meanings ascribed to each of them below:
"ACCOUNTS" the audited financial statements (or where audited
financial statements are not available for whatever
reasons, the management accounts duly certified true
and correct by the directors of the relevant company) of
each of the Company and Rosedale for the year ended
31 December 2006 which comprise at least a balance sheet
as at 31 December 2006 and an income statement for the
year then ended;
"ACCOUNTS DATE" 30 November 2007;
"AGREEMENT" this agreement for the sale and purchase of the Sale
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Share, as amended or supplemented from time to time;
"BUSINESS DAY" A day (other than Saturdays and days on which a tropic
cyclone warning No. 8 or above or a black rainstorm
warning signal is hoisted in Hong Kong at any time
between 9:00 a.m. and 5:00 p.m.) on which licensed banks
in Hong Kong are generally open for business normal
business hours;
"COMPANY" has the meaning ascribed to it in Recital (A);
"COMPANIES ORDINANCE" the Companies Ordinance (Chapter 32 of the Laws of
Hong Kong);
"COMPLETION" completion of this Agreement for the sale and purchase
of the Sale Share in accordance with Clause 4;
"COMPLETION DATE" means the date of signing of this Agreement;
"CONSIDERATION" the total sum of HK$500,000.00 payable by the Purchaser
to the Vendor for the purchase of the Sale Share
pursuant to Clause 3;
"ENCUMBRANCE" includes any option, right to acquire, right of
pre-emption, mortgage, charge, pledge, lien,
hypothecation, title retention, right of set off, claim,
counterclaim, trust arrangement or other security, any
equity or restriction (including any restriction imposed
under the Companies Ordinance or other applicable laws
or regulations) or other adverse rights and interests of
all kinds and descriptions and "ENCUMBER" shall be
construed accordingly;
"GROUP" the Company and its subsidiary(ies), from time to time;
"HK$" Hong Kong dollars, the lawful currency of Hong Kong;
"HK GAAP" the generally accepted accounting principles in Hong
Kong;
"HONG KONG" the Hong Kong Special Administrative Region of the PRC;
"LIABILITIES" indebtedness, obligations and liabilities (whether
actual, contingent, current, deferred or otherwise)
(including but not limited to Tax obligations and
liabilities);
"MANAGEMENT ACCOUNTS" the unaudited management accounts duly certified true
and correct by the directors of each of the Company and
Rosedale for the eleven months ended on the Accounts
Date which comprises at least a balance sheet as at the
Accounts Date an income statement for the eleven months
then ended;
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"PRC" the People's Republic of China, which for the
purpose of this Agreement, excludes Hong Kong, the
Macau Special Administrative Region of the PRC and
Taiwan;
"PRC GAAP" the generally accepted accounting principles in the
PRC;
"SALE SHARE" has the meaning ascribed to it in Recital (A);
"ROSEDALE" has the meaning ascribed to it in Recital (B);
"SHARE(S)" has the meaning ascribed to it in Recital (A);
"TAXATION" OR "TAX" all forms of taxation whenever created or imposed
and whether in Hong Kong, PRC, the British Virgin
Islands or elsewhere and without limiting the
generality of the foregoing, includes all forms of
profits tax, interest tax, salaries tax, property
tax, estate duty, stamp duty, sales tax, any
provisional tax, customs and import duty and any
amount equal to any deprivation of any relief,
allowance, set off, deduction in computing profits
or rights to repayment of taxation granted by or
pursuant to any legislation concerning or otherwise
relating to taxation and also includes in addition
and without prejudice to the foregoing, all fines,
penalties, costs, charges, expenses and interests
relating thereto;
"US$" United States dollars, the lawful currency of the
United States of America;
"WARRANTIES" the representations, warranties and undertakings
and indemnities made or given by the Vendor to the
Purchaser in this Agreement (including but not
limited to Schedule 2) and "WARRANTY" shall be
construed accordingly; and
1.2 The headings of this Agreement are inserted for convenience only and shall
be ignored in construing this Agreement.
1.3 Unless the context otherwise requires, references in this Agreement to the
singular shall be deemed to include references to the plural and vice
versa; and references to one gender shall include all genders and
references to any person shall include an individual, firm, body corporate
or unincorporated.
1.4 References in this Agreement to clauses and schedules are references to
clauses and schedules of this Agreement and references to sub-clauses and
paragraphs are unless otherwise stated, references to sub-clauses and
paragraphs of the clause, sub-clause or, as appropriate, the schedule in
which the reference appears.
1.5 Reference to a "SUBSIDIARY" shall be construed in accordance with section 2
of the Companies Ordinance.
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1.6 Reference to any ordinance, regulation or other statutory provision in this
Agreement includes reference to such ordinance, regulation, provision or
rule as modified, consolidated or re-enacted from time to time.
1.7 The Schedules comprise schedules of this Agreement and form part of this
Agreement.
2. SALE AND PURCHASE OF THE SALE SHARE
2.1 Subject to the terms and conditions of this Agreement, the Vendor as
beneficial owner of the Sale Share shall sell and the Purchaser shall,
relying on the Warranties and indemnities herein contained, purchase or
procure the purchase of the Sale Share, with full title guarantee with
effect from the date of this Agreement free from all Encumbrances together
with all rights now or hereafter attaching or accruing thereto including
but not limited to all dividends paid, declared and/or made in respect
thereof on or after the date of this Agreement.
2.2 The Vendor represents and warrants that there are no pre-emption rights and
any other restrictions on the transfer of the Sale Share, whether conferred
by the memorandum and articles of association of the Company or otherwise.
3. CONSIDERATION
The consideration for the sale and purchase of the Sale Share shall be the
sum of HK$500,000.00 (the "CONSIDERATION"), which shall be satisfied by the
Purchaser upon Completion, by a cheque drawn on a licensed bank in Hong
Kong, payable by the Purchaser to the Vendor or to such other party at such
other time as the Vendor may direct.
4. COMPLETION
4.1 Completion shall take place at the office of the Vendor at 31st Floor, Bank
of America Tower, 00 Xxxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx on the Completion
Date at 4:00 p.m. (or at such other place and time as the parties may agree
in writing) when all acts and requirements set out in this Clause 4 shall
be complied with.
4.2 On Completion, the Vendor shall deliver, or procure the delivery, to the
Purchaser of all the following:
(a) duly executed instrument of transfer, in respect of the transfer of
the Sale Share by the Vendor in favour of the Purchaser or such other
nominee as the Purchaser may direct and such other documents as may be
required to give a good and effective transfer of title to the Sale
Share to the Purchaser or such nominee and to enable the Purchaser or
such nominee to become the registered and beneficial holder thereof
free from all Encumbrances to the Purchaser's satisfaction;
(b) the original share certificate in respect of the Sale Share and/or
other evidence as may be required by the Purchaser showing that the
Vendor is the beneficial owner of the Sale Share free from all
Encumbrances;
(c) original of the resolutions of the relevant directors of the Company
and Rosedale to in Clauses 4.3 and 4.4, together with a letter under
seal from each of the relevant persons referred to under Clauses
4.3(c) and 4.4(c) acknowledging it/he/she has no claim outstanding for
compensation or otherwise against the Company and Rosedale (as the
case may be);
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(d) (i) all statutory records and books of the Company and Rosedale
(which shall be written up to date) and all unissued share
certificates (if any);
(ii) all common seals and all rubber stamps, cheque books, cheque
stubs and bank statements, receipt books, all current insurance
policies, books and accounts and title deeds and evidence of
ownerships to all assets and all current contracts and all other
accounting records;
(iii) all correspondence and other documents belonging to the Company
and Rosedale (including its constitutional documents); and
(iv) such other documents as the Purchaser may reasonably request;
(e) written confirmation of the Vendor that it is not aware of any matter
or thing which is in breach of or inconsistent with any of the
Warranties; and
4.3 The Vendor shall procure the passing of resolutions by the director(s) of
the Company pursuant to which the following matters, among other matters,
shall be dealt with and approved:
(a) the transfer of the Sale Share to the Purchaser or its nominee and its
registration as holder of the Sale Share and the issue of a new share
certificate in relation thereto;
(b) such person(s) as the Purchaser may nominate to be validly appointed
as director(s) of the Company with effect from the Completion Date;
and
(c) the resignation of all director(s) and secretary (if any) of the
Company with effect from the Completion Date.
4.4 The Vendor shall procure the passing of resolutions by the director(s), and
if required the shareholders of Rosedale pursuant to which the following
matters, among other matters, shall be dealt with and approved:
(a) such person(s) as the Purchaser may nominate to be validly appointed
as director(s) of Rosedale with effect from the Completion Date;
(b) such person as the Purchaser may nominate to be validly appointed as
the authorized representative of Rosedale with effect from the
Completion Date;
(c) such person(s) as the Purchaser may require to resign as director(s)
and authorized representative of Rosedale with effect from the
Completion Date; and
(d) such person(s) as the Purchaser may nominate to be the authorized
signatories for the operation of the bank accounts of Rosedale and
cause the removal of such existing authorized signatories as the
Purchaser may direct.
4.5 Against performance of the obligations by the Vendor under Clauses 4.2, 4.3
and 4.4, the Purchaser shall pay to the Vendor, or to such other party as
the Vendor may direct, the sum of HK$500,000 as referred to in Clause 3.
4.6 If the Vendor shall fail to do anything required to be done by them under
Clauses 4.2, 4.3 and 4.4, without prejudice to any other right or remedy
available to the Purchaser, the Purchaser may:
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(a) defer Completion to a day not later than twenty-one (21) days after
the date fixed for Completion (and so that the provisions of this
paragraph (a) shall not apply to Completion as so deferred); or
(b) proceed to Completion so far as practicable but without prejudice to
the Purchaser's rights to the extent that the Vendor shall not have
complied with their obligations hereunder; or
(c) rescind this Agreement without liability on its part and all monies
paid by the Purchaser to the Vendor hereunder shall be repaid to the
Purchaser in full without any deduction forthwith.
4.7 Clauses 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 shall survive
Completion.
5. WARRANTIES
5.1 The Vendor hereby represents and warrants to the Purchaser that the
Warranties are true and accurate in all respects as at the date of this
Agreement and will continue to be so up to and including the Completion
Date and acknowledges that the Purchaser, in entering into this Agreement,
is relying on, among other matters, such Warranties. For the avoidance of
doubt, the liabilities and obligations of the Vendor under the Warranties
shall in no circumstances be lessened, modified, relieved or otherwise
reduced due to any actual or constructive knowledge of the Purchaser of any
facts or events relating to the business, operations or otherwise of the
Company or Rosedale.
5.2 The Vendor agrees that the Purchaser shall treat each of the Warranties as
a condition of this Agreement. In addition, each of the Warranties is
without prejudice to any other Warranty and, except where expressly
otherwise stated, no provision in any Warranty shall govern or limit the
extent or application of any other provision in any Warranty.
5.3 The Vendor agrees to fully indemnify and keep the Purchaser fully
indemnified on demand from and against all losses, liabilities, damages,
costs and expenses (including legal expenses) which the Purchaser may incur
or sustain from or in consequence of any of the Warranties not being
correct or fully complied with or any breach by the Vendor of any of the
provisions of this Agreement. This indemnity shall be without prejudice to
any other rights and remedies of the Purchaser in relation to any such
breach and all such rights and remedies are hereby reserved.
5.4 The Warranties shall survive Completion and the rights and remedies of the
Purchaser in respect of any breach of the Warranties shall not be affected
by Completion or by any investigation made by or on behalf of the Purchaser
into the affairs of the Company or Rosedale or by the Purchaser rescinding,
or failing to rescind this Agreement, or failing to exercise or delaying
the exercise of any right or remedy, or by any other event or matter
whatsoever, except a specific and duly authorized written waiver or release
and no single or partial exercise of any right or remedy shall preclude any
further or other exercise.
5.5 If at any time before Completion, the Purchaser finds that any of the
Warranties is incorrect or any undertakings given by the Vendor is breached
or has not been or is (in the reasonable opinion of the Purchaser)
incapable of being rectified the Purchaser may rescind this Agreement by
written notice to the Vendor and all monies paid by the Purchaser to the
Vendor hereunder shall be repaid to the Purchaser in full without any
deduction forthwith.
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5.6 It is agreed between the parties that, (without limitation or prejudice to
any rights accruing to the Purchaser pursuant to any of the provisions of
this Agreement or otherwise available to the Purchaser) in the event of
there being discovered a breach of any Warranty or any of the provisions of
this Agreement, any damages or compensation to which the Purchaser may be
entitled shall be calculated on whichever of the following bases the
Purchaser shall elect, that is to say either:
(a) there shall be paid to the Purchaser such sum as shall represent the
difference between the total amount contracted to be paid or satisfied
or to be procured to be paid or satisfied by the Purchaser and such
amount as the Purchaser would have been willing to pay if it had full
knowledge of the events, conditions or situations which caused or
resulted in the breach of the said Warranty or provision of this
Agreement, plus any and all expenses and costs, including without
limitation attorney's fees and expenses, to enforce this provision and
to collect such sum; or
(b) there shall be paid to the Purchaser the sum which if paid to the
Company and/or Rosedale concerned would, in light of all the
circumstances, be necessary to put the Company and/or Rosedale
concerned into the same position in which it would have been had the
said Warranty been true and accurate and such events, conditions or
situations which caused or resulted in the breach of the Warranty or
the provision of this Agreement did not exist, plus any and all
expenses and costs, including without limitation attorney's fees and
expenses, to enforce this provision and to collect such sum.
5.7 The Purchaser's rights under the above clauses are in addition to and
without prejudice to all other rights and remedies available to it and its
exercise of or its failure to exercise its rights under any of the above
clauses shall not constitute a waiver of or prejudice any of its other
rights under this Agreement.
6. VENDOR'S UNDERTAKINGS
6.1 The Vendor covenants and undertakes that prior to Completion and without
the prior written consent of the Purchaser, the Vendor shall procure that
each of the Company and Rosedale shall not:
(a) issue or agree to issue any shares, warrants or other securities or
loan capital or grant or agree to grant any option over or right to
acquire or convert into any share or loan capital or otherwise take
any action which might result in the Purchaser (or its nominee)
acquiring on Completion a percentage interest in the Company and
Rosedale lower than that contemplated under this Agreement;
(b) incur any expenditure on capital account or enter into any option in
respect of any part of its assets (other than in its ordinary and
usual course of business);
(c) dispose of or agree to dispose of or grant any option in respect of
any part of its assets (other than in its ordinary and usual course of
business);
(d) borrow any money;
(e) enter into any agreement, arrangement, commitment or otherwise incur
any liabilities (other than in its ordinary and usual course of
business);
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(f) make any loan, advances or other credits to any third party (other
than in its ordinary and usual course of business);
(g) declare make or pay any dividend or other distribution or do or suffer
anything which may render its financial position less favourable than
as at the date of this Agreement;
(h) grant or issue or agree to grant or issue any mortgages charges
debentures or other securities or give or agree to give any
guarantees, indemnities, surety or security;
(i) let or agree to let or otherwise part with possession or ownership of
the whole or any part of the properties owned by the Company or
Rosedale or purchase, take on lease or assume possession of any real
property;
(j) employ any person;
(k) permit any of its insurances to lapse or do anything which would make
any policy of insurance void or voidable;
(l) purchase or redeem any shares in the Company or Rosedale or provide
financial assistance for any such purchase;
(m) in any other way depart from the ordinary course of its respective
day-to-day business either as regards the nature scope or manner of
conducting the same;
(n) alter any provisions of its memorandum or articles of association or
other constitutional documents;
(o) compromise, settle, release, discharge or compound any material civil,
criminal, arbitration or other proceedings or any material liability,
claim, action, demand or dispute or waive any right in relation to any
of the foregoing;
(p) repay any loan or monies to the shareholders of the Company or
Rosedale; and
(q) do any act or thing which will have or which will reasonably be
expected to have a material and adverse effect on the financial
position or prospects of the Company or Rosedale.
7. TAX INDEMNITY
7.1 In this Clause 7, unless the context otherwise requires:
(a) "EVENT" includes (without limitation) any omission, event, action or
transaction whether or not any of the Company and Rosedale is a party
thereto, the death of any person, a change in the residence of any
person for any Tax purpose, a failure to make sufficient dividend
payments to avoid an apportionment or deemed distribution of income
and the entering into and completion of this Agreement and references
to the result of events on or before the Completion Date include the
combined result of two or more events one or more of which shall have
taken place on or before the Completion Date (as the case may be); and
(b) reference to income or profits or gains earned, accrued or received
shall include income or profits or gains deemed to have been or
treated as or regarded as earned, accrued or received for the purposes
of any legislation.
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7.2 Subject as hereinafter provided, the Vendor hereby unconditionally and
irrevocably covenant with and undertake to pay on demand to the Purchaser
(at its election, for itself and as trustee for the Company and Rosedale)
without recourse to the Company and/or Rosedale, a sum equal to the amount
of:
(a) any Tax liability of the Company and/or Rosedale resulting from or by
reference to any income, profits or gains earned accrued or received
on or before the Completion Date or any event on or before the
Completion Date whether alone or in conjunction with other
circumstances and whether or not such Tax is chargeable against or
attributable to any other person;
(b) any Tax liability of the Company and/or Rosedale that arises after
Completion as a result of an act, omission or transaction by a person
other than any of the Company and Rosedale and which liability to Tax
falls upon the Company and/or Rosedale as a result of its having been
in the same group for Tax purposes as that person at any time before
Completion;
(c) any Tax liability of the Company and/or Rosedale that would not have
been payable had there been no breach of any of the Warranties and
which is not the subject of the covenants above; and
(d) all reasonable costs and expenses which are incurred by the Purchaser
and/or the Company and/or Rosedale in connection with any of the
matters referred to in this Clause 7 or in taking or defending any
action under the covenants contained in this Clause 7 (including,
without prejudice to the generality of the foregoing, all legal and
other professional fees and disbursements).
7.3 The indemnity contained in this Clauses 7 does not cover any claim in
respect of Taxation:
(a) to the extent that provision has been made for such Taxation in the
Accounts; or
(b) as a result of transactions in the ordinary course of normal day to
day operations of the relevant company since the Accounts Date unless
liability for such Taxation would not have arisen but for some act or
omission of, or transaction voluntarily effected by such company or
the Vendor; or
(c) to the extent that such claim arises or is incurred as a result of the
imposition of Taxation as a consequence of any retrospective change in
law or practice coming into force after the date hereof or to the
extent such claim arises or is increased by an increase in rates of
Taxation after the date hereof with retrospective effect.
7.4 No claim under the indemnity contained in Clause 7 shall be made if and to
the extent that the Purchaser has been compensated pursuant to a claim made
under other terms of this Agreement.
8. ACCESS TO INFORMATION
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The Vendor shall assist the Purchaser, its agents, representatives and
professional advisers in obtaining promptly on request full access to all
such facilities and information regarding the business, assets,
liabilities, contracts and affairs of the Company and Rosedale and in
respect and other evidence of ownership of the assets owned by the Company
and Rosedale as the Purchaser may require.
9. FURTHER ASSURANCE
The Vendor shall execute, do and perform or procure to be executed, done
and performed by other necessary persons all such further acts, agreements,
assignments, assurances, deeds and documents as the Purchaser may require
effectively to vest the registered and beneficial ownership of the Sale
Share in the Purchaser or its nominee free from all Encumbrances and with
all rights now and hereafter attaching thereto.
10. CONFIDENTIALITY
Other than such disclosure as may be required by law, governmental and
regulatory authorities, the parties hereto shall not make any announcement
or release or disclose any information concerning this Agreement or the
transactions herein referred to or disclose the identity of the other party
(save for the disclosure to their respective professional advisers under a
duty of confidentiality) without the written consent of the other party
(such consent not to be unreasonably withheld or delayed).
11. TIME
Time shall be of the essence of this Agreement, both as regards the dates
and periods specifically mentioned and as to any dates and periods which
may, by agreement in writing between or on behalf of the Vendor and the
Purchaser, be substituted for them.
12. ASSIGNMENT
This Agreement shall be binding upon and enure for the benefit of the
estates, personal representatives or successors of the parties but, save as
expressly set out to the contrary, shall not be assignable save with
written consent of the other party, provided that the Purchaser shall be
entitled to transfer the rights and benefits under this Agreement to its
nominee(s) or any other third party.
13. ENTIRE AGREEMENT
This Agreement (together with any documents referred to herein) constitutes
the entire agreement between the parties hereto and supersedes all previous
agreements, arrangements, statements, understandings or transactions
between the parties hereto in relation to the matters hereof and the
parties acknowledge that no claim shall arise in respect of any agreement
so superseded.
14. AMENDMENT
Unless otherwise specifically provided for in this Agreement, any provision
of this Agreement may be amended, varied, supplemented or waived only if
the parties hereto agree in writing.
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15. NOTICES AND OTHER COMMUNICATION
15.1 Any notice required or permitted to be given hereunder shall be given in
writing in the English language delivered personally or sent by post
(airmail if overseas) or by facsimile message to the parties hereto due to
receive such notice at their addresses as set out below (or such other
address as it may have notified to the other party hereto in accordance
with this Clause 15).
15.2 Any notice, demand or other communication so addressed to the relevant
party shall be deemed to have been delivered (a) if delivered personally,
when left at the address set out below; (b) if sent by prepaid registered
post or courier, 3 Business Days (or 5 Business Days if sent by airmail)
after posting it; and (c) if sent by facsimile, when confirmation of its
transmission has been recorded by the sender's fax machine.
15.3 (a) For the purpose of delivery of notices under this Agreement and the
address of the Vendor are:
Address : 31st Floor, Bank of America Tower, 00 Xxxxxxxx Xxxx,
Xxxxxxx, Xxxx Xxxx
Attention : The Board of Directors
(b) For the purpose of delivery of notices under this Agreement and the
address of the Purchaser are:
Address : OMC Xxxxxxxx, X.X. Xxx 0000, Xxxx Xxxx, Xxxxxxx, Xxxxxxx
Xxxxxx Xxxxxxx
Attention : The Board of Directors
15.4 Nothing in this Clause 15 shall preclude the service of communication or
the proof of such service by any mode permitted by law.
16. COSTS AND STAMP DUTY
16.1 Each party shall bear his/its own costs and expenses (including legal fees)
incurred in connection with the preparation, negotiation, execution and
performance of this Agreement and all documents incidental or relating to
Completion.
16.2 All stamp duty payable in connection with the sale and purchase of the Sale
Share shall be borne by the Vendor on one part and the Purchaser on the
other in equal shares.
17. GENERAL
17.1 The provisions of this Agreement including the Warranties and indemnities
herein contained insofar as the same shall not have been fully performed at
Completion or any other requisite time shall remain in full force and
effect notwithstanding Completion or after such requisite time.
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17.2 This Agreement may be executed in one or more counterparts each of which
shall be binding on each party by whom or on whose behalf it is so
executed, but which together shall constitute a single instrument. For the
avoidance of doubt, this Agreement shall not be binding on any party hereto
unless and until it shall have been executed by or on behalf of all persons
expressed to be the parties hereto.
17.3 Any right of rescission conferred upon any party hereby shall be in
addition to and without prejudice to all other rights and remedies
available to it and no exercise or failure to exercise such a right of
rescission shall constitute a waiver by such party of any such other right
or remedy.
17.4 No failure or delay by the Vendor or the Purchaser in exercising any right,
power or remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of the same preclude any further
exercise thereof or the exercise of any other right, power or remedy.
Without limiting the foregoing, no waiver by a party of any breach by the
other party of any provisions hereof shall be deemed to be a waiver of any
subsequent breach of that or any other provision hereof. If at any time any
provision of this Agreement is or becomes illegal, invalid or unenforceable
in any respect, the legality, validity and enforceability of the remaining
provisions of this Agreement shall not be affected or impaired thereby.
18. GOVERNING LAW AND JURISDICTION
18.1 This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and the parties hereto submit to the non-exclusive
jurisdiction of the Hong Kong courts for the purpose of determining or
enforcing any claim arising hereunder.
18.2 The Vendor irrevocably appoints the board of directors of 31st Floor, Bank
of America Tower, 00 Xxxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx as its process agent
to receive on behalf service of any writ, summons, order, judgment or other
notice of legal process in Hong Kong. Such service shall be deemed
completed on delivery to such process agent (whether or not it is forwarded
to and received by the Vendor). If for any reason such process agent ceases
to be able to act as process agent, or no longer has any address in Hong
Kong, the Vendor irrevocably agrees to appoint or substitute process agent
acceptable to the Purchaser and to deliver to the Purchaser a copy of the
new process agent's acceptance of that appointment within five (5) days.
18.3 The Purchaser irrevocably appoints Investgold Limited (for the attention of
the Director) of Room 203, Siu Fat Industrial Building, 139-141 Xxx Xxx
Street, Xxxx Xxxx, Kowloon, Hong Kong as its process agent to receive on
behalf service of any writ, summons, order, judgment or other notice of
legal process in Hong Kong. Such service shall be deemed completed on
delivery to such process agent (whether or not it is forwarded to and
received by the Purchaser). If for any reason such process agent ceases to
be able to act as process agent, or no longer has any address in Hong Kong,
the Purchaser irrevocably agrees to appoint or substitute process agent
acceptable to the Vendor and to deliver to the Vendor a copy of the new
process agent's acceptance of that appointment within five (5) days.
13
IN WITNESS whereof this Agreement has been duly executed by all parties hereto
the day and year first above written.
THE VENDOR
SIGNED by
XX. XXXXX XXX )
For and on behalf of )
) /s/ Xx. Xxxxx Xxx
CHINA ENTERPRISES ) ------------------------------------------
LIMITED )
in the presence of: )
THE PURCHASER
SIGNED by )
BRIGHTCHEER INVESTMENT )
LIMITED ) /s/ Brightcheer Investment Limited
for and on behalf of ) ------------------------------------------
)
XXXXXX PACIFIC LIMITED )
in the presence of: )
14
SCHEDULE 1
PART A
PARTICULARS OF THE COMPANY
Name of the Company : Manwide Holdings Limited
Company number : 584221
Date of incorporation : 3 March 2004
Place of incorporation : British Virgin Islands
Address of registered office : Offshore Incorporations Limited, P.O. Box 957,
Offshore Incorporations Centre, Road Town,
Tortola , British Virgin Islands
Authorized share capital : US$50,000 divided into 50,000 shares of US$1.00
each
Issued share capital : US$1.00
Director(s) : Xxxxxx Hon Xxx
Xxxx Xxx Xxxx, Xxxxx
Shareholder(s) : Name Number of Percentage of
(ordinary Shares) ---- Share(s) shareholding
--------- -------------
China Enterprises 1 100%
Limited
Subsidiaries : The Rosedale Luxury Hotel & Suites Limited
15
SCHEDULE 1
PART B
PARTICULARS OF ROSEDALE
Name of the Company : The Rosedale Luxury Hotel & Suites Limited
Company number (CHINESE CHARACTERS)
Date of incorporation : 30 August 2004
Place of incorporation : The PRC
Address of registered office : (CHINESE CHARACTERS)
Registered share capital : US$20,000,000.00
Authorized representative : (CHINESE CHARACTERS)
Shareholder(s) : Name Percentage of
---- shareholding
--------------
Manwide Holdings Limited 100%
Subsidiary : Nil
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SCHEDULE 2
WARRANTIES
1. INFORMATION
The facts and information set out in the recitals, the Schedules and all
documents and other information which has been provided in writing to the
Purchaser or its representatives or advisers by the Vendor, the Company or
Rosedale or by any director, officer or other representative of the Vendor,
the Company or Rosedale or by their respective professional advisers or
other agents was when given and is now true and accurate in all material
respects. There is no fact or matter which has not been disclosed which
renders any such information untrue, inaccurate or misleading or the
disclosure of which might reasonably affect the willingness of a willing
purchaser to purchase the Sale Share in accordance with the provisions of
this Agreement.
2. COMPLIANCE AND ABILITY TO SELL
2.1 Compliance
(i) Each of the Company and Rosedale is a duly organised limited
liability, company validly existing under the laws of the place of
its incorporation and is duly registered and qualified in each other
jurisdiction in which it conducts its business, and has the corporate
powers and authority to carry on the business presently carried on by
it and to own and hold the assets used therewith.
(ii) Each of the Company and Rosedale has complied with the provisions of
all applicable laws, regulations, orders, licenses, permits and
similar items applicable to it, its memorandum and articles of
association (and all orders notices and directions made thereunder)
and all applicable codes or practices in all material respects.
(iii) Each of the Company and Rosedale has all necessary licences, permits,
consents and authorities for the proper and effective carrying on of
its business and holding of its assets and all such licences,
permits, consents and authorities are valid and subsisting.
(iv) All returns, particulars, resolutions and other documents required to
be filed with or delivered to the registrar of companies or to any
other authority whatsoever by each of the Company and Rosedale have
been correctly and properly prepared and so filed or delivered.
(v) All the accounting records, statutory and other books and records
(including the register of members), and other deeds documents
records, data and information of each of the Company and Rosedale
are, and have since its incorporation been, kept up to date,
properly, accurately and consistently completed and are a complete
and accurate record of all acts and transactions of the Company and
Rosedale (as the case may be) and of all matters required by law or
best business practice to be recorded or registered therein. None of
the Company and Rosedale has received any application or request for
rectification of any such register and all such registers are in the
possession of the Company and Rosedale (as the case may be).
(vi) All title deeds and other documents required to show title to the
assets of each of the Company and Rosedale (duly stamped where
necessary) and all other documents and
17
agreements to which any of the Company and Rosedale is a party and
all other documents, records and correspondence of the business owned
by, or which ought to be in the possession of, the Company and
Rosedale are in the possession of the Company and Rosedale (as the
case may be).
2.2 Power
The Vendor has full power to enter into and perform this Agreement and this
Agreement will constitute, binding obligations on the Vendor, enforceable
in accordance with its terms.
3. CAPITAL STRUCTURE
3.1 Company
(i) The Vendor is the sole legal and beneficial owner of the Sale Share
and is entitled to sell and transfer the full legal and beneficial
ownership of the same to the Purchaser (or its nominee) free from all
Encumbrances. The Sale Share constitute the entire issued share
capital of the Company as at the date of this Agreement and as at
Completion and is fully paid up and has not been issued in violation
of any pre-emptive right or similar right.
(ii) There is no Encumbrance or other form of agreement (including
conversion rights and rights of pre-emption) or security on, over or
affecting all or any of the Sale Share or any unissued shares,
debentures or other securities of the Company and there is no
agreement or commitment to give or create any of the foregoing, and
no claim has been made by any person to be entitled to any of the
foregoing, and no person has the right (whether exercisable now or in
the future and whether contingent or not) to call for the issue of
any share or loan capital of the Company under any of the foregoing.
There are no options, warrants or other rights to acquire any capital
stock of the Company.
(iii) The Company does not have any Liabilities, otherwise than disclosed
in the Management Accounts, and has not entered into any agreement,
arrangement, commitment, guarantee, warranty or understanding
(whether legally enforceable or not) which remains subsisting as at
Completion and other than holding of the share capital of Rosedale as
at the date of this Agreement and as at Completion, the Company does
not hold, otherwise than disclosed in the Management Accounts, any
material asset or property nor has any employee.
3.2 Rosedale
(i) The Company is the legal and beneficial owner of the entire
registered share capital of Rosedale free from all Encumbrances as at
the date of this Agreement and as at Completion and is fully paid up
and has not been issued in violation of any pre-emptive right or
similar right.
(ii) There is no Encumbrance or other form of agreement (including
conversion rights and rights of pre-emption) or security on, over or
affecting the issue shares or any unissued shares, debentures or
other securities of Rosedale and there is no agreement or commitment
to give or create any of the foregoing, and no claim has been made by
any person to be entitled to any of the foregoing, and no person has
the right (whether exercisable now or in the future and whether
contingent or not) to call for the issue of
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any share or loan capital of Rosedale under any of the foregoing.
There are no options, warrants or other rights to acquire any issued
capital Rosedale.
(iii) Otherwise than disclosed in the Management Accounts of Rosedale does
not hold any material asset or property and has not entered into any
agreement, arrangement, commitment, guarantee, warranty or
understanding (whether legally enforceable or not) which remains
subsisting as at Completion.
4. MANAGEMENT ACCOUNTS
4.1 The Management Accounts :
(i) were prepared in all material respects in accordance with HK GAAP in
respect of the Management Accounts of the Company and PRC GAAP in
respect of the Management Accounts of Rosedale;
(ii) give a true and fair view of the assets, liabilities and commitments
of the Company and Rosedale as at the Accounts Date and its profits
or losses for the financial period ended on that date;
(iii) are not affected by any extraordinary, exceptional or non-recurring
item except specified therein;
(iv) properly reflect the financial position of the Company and Rosedale
as at the Accounts Date;
(v) fully disclose all the assets and liabilities of the Company and
Rosedale as at the Accounts Date.
4.2 Save as disclosed, the receivables of both trade and non-trade nature as
reflected in the Management Accounts are fully recoverable within twelve
(12) months from the date of Completion.
4.3 All accounts, books, ledgers and records of the Company and Rosedale have
been properly maintained so that they accurately present and reflect in
accordance with generally accepted accounting principles, standards and
practice all transactions entered into by the Company and Rosedale or to
which they have been parties thereto.
4.4 Matters since the Accounts Date
(i) Since the Accounts Date :-
(a) full and proper records and books of account of the transactions
dealings and affairs of each of the Company and Rosedale have
been substantially kept, and full and proper entries have been
made in all material respects;
(b) the business of each of the Company and Rosedale has been
carried on in the ordinary course of its business both as
regards the nature, scope and manner of conducting the business
and so as to maintain the business as a going concern and there
has been no material change in the business of any of the
Company and Rosedale, except as otherwise described herein or
contemplated hereby;
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(c) none of the Company and Rosedale has acquired or disposed of any
material assets nor has it incurred any capital expenditure or
material liabilities other than in the ordinary course of
business;
(d) no resolutions in general meeting have been passed by any of the
Company and Rosedale and nothing has been done in the conduct or
management of the affairs of any of the Company and Rosedale
which may reasonably be considered likely to prejudice the
interests of the Purchaser as purchaser of the Sale Share;
(e) none of the Company and Rosedale has entered into any material
contracts not in the ordinary course of business.
(ii) In relation to all financing arrangements to which any of the Company
and Rosedale is a party and to the best knowledge and belief of the
Vendor:-
(a) there has not been any contravention or non-compliance with any
provision of any such document in any material respect;
(b) no steps for the enforcement of any encumbrances have been taken
or threatened;
(c) no event has occurred which would entitle any third party (with
or without the giving of notice) to call for the repayment by
any of the Company and Rosedale of indebtedness prior to its
normal maturity date.
(iii) Other than incurred in the ordinary course of business, none of the
Company and Rosedale has incurred any fees, expenses, charges,
commitments, liabilities (whether actual or contingent), indebtedness
or otherwise since the Accounts Date.
(iv) There has been no material adverse change to the financial position
and trading position of each of the Company and Rosedale since the
Accounts Date.
5. TAXATION
5.1 All notices, returns and computations of the Company and Rosedale for the
purposes of Taxation have been made punctually on a proper basis and are
correct and none of them is, or is likely to be, the subject of any dispute
with any fiscal authority.
5.2 All Taxation which the Company and/or Rosedale is liable to pay prior to
Completion has been or will be so paid prior to Completion.
5.3 None of the Company and Rosedale has paid or become liable to pay any
penalty, fine or interest charged by virtue of the provisions of any
Taxation statute, law, rule or regulation.
5.4 (i) All tax deductible and payable under any Taxation statute, law, rule
or regulation has, so far as is required to be deducted, been
deducted from all payments made or treated as made by the Company
and/or Rosedale and all amounts due to be paid to all relevant
Taxation authorities prior to the date of this Agreement have been so
paid.
(ii) All payments by the Company and Rosedale to any person which ought to
have been
20
made under deduction of tax have been so made and each of the Company
and Rosedale (if required by law to do so) has accounted to the
relevant fiscal authority for the tax so deducted.
(iii) Proper records have been maintained in respect of all such deductions
and payments and all applicable regulations have been complied with.
5.5 None of the Company and Rosedale has since their respective dates of
incorporation been the subject of a discovery, audit or investigation by
any Taxation authority and there are no facts which are likely to cause a
discovery, audit or investigation to be made.
5.6 Full provision or reserve has been made in the Accounts for all Taxation
assessed or liable to be assessed on each of the Company and Rosedale or
for which it is accountable in respect of income, profits or gains earned,
accrued or received on or before the Accounts Date, and proper provision
has been made in the Accounts for deferred taxation in accordance with
internationally accepted accounting standards.
5.7 Each of the Company and Rosedale has sufficient records to permit accurate
calculation of the tax liability or relief which would arise upon a
disposal or realisation on completion of each asset owned by the Company
and Rosedale at the Accounts Date or acquired by the Company or Rosedale
before Completion.
5.8 Each of the Company and Rosedale has duly submitted all claims and
disclaimers the making of which has been assumed for the purposes of the
Accounts.
6. PROCEEDINGS
6.1 None of the Company and Rosedale is engaged in any litigation or
arbitration proceedings and there are no lawsuits or arbitration
proceedings pending or threatened by or against the Company and/or Rosedale
or any person for whose acts or defaults the Company and/or Rosedale may be
vicariously liable.
6.2 No injunction has been granted against the Company and/or Rosedale.
6.3 None of the Company and Rosedale is subject to any order or judgment given
by any court or governmental agency which is still in force.
6.4 None of the Company and Rosedale has given any undertaking to any court or
to any third party arising out of any legal proceedings.
6.5 There is no matter or fact in existence which might give rise to any legal
proceedings or arbitration involving the Company and/or Rosedale including
any which might form the basis of any criminal prosecution against the
Company and/or Rosedale.
6.6 No governmental or other investigation or inquiry is in progress or
threatened in respect of the Company or Rosedale or its business and there
are no circumstances likely to lead to any of the same.
6.7 None of the Company and Rosedale is insolvent nor unable to pay its debts
as they fall due. No order has been made or petition presented or
resolution passed for the winding up of the Company or Rosedale and no
distress, execution or other process has been levied on any of their
respective assets.
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6.8 No administrative or other receiver has been appointed by any person of the
business or assets of the Company or Rosedale or any part thereof, nor has
any order been made or petition presented for the appointment of an
administrator in respect of the Company or Rosedale.
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