DATED THE 28 DAY OF JANUARY 2000
------------------------------------------
CMS DEVELOPMENT LIMITED
XXXXX XXXXXXX XXXX
AND
SPIDERWEB CORPORATION
(AS SELLERS)
AND
GLOBAL TELEPHONE COMMUNICATION INC.
(AS PURCHASER)
------------------------------------------
AGREEMENT FOR SALE AND PURCHASE OF
SHARES IN
NANO TECHNOLOGY LIMITED
------------------------------------------
XXXX & PARTNERS,
SOLICITORS,
41ST FLOOR, JARDINE HOUSE,
0 XXXXXXXXX XXXXX,
XXXXXXX, XXXX XXXX.
REF.:KKM/990238
THIS AGREEMENT is dated the 28 day of January 2000
BETWEEN:
(1) The following persons (each a "SELLER" and collectively the
"SELLERS"):
(a) CMS DEVELOPMENT LIMITED, a company incorporated in the British
Virgin Islands (IBC No. 128319) and having its registered office
at Columbus Centre Building, Wickhams City, Road Town, Tortola,
British Virgin Islands ("CMS");
(b) SPIDERWEB CORPORATION, a company incorporated in the British
Virgin Islands (IBC No.230382) and having its registered office
at P.O. Box 957, Offshore Incorporations Centre, Road Town,
Tortola, British Virgin Islands ("SPIDERWEB");
(c) XXXXX XXXXXXX XXXX, holder of Canadian Passport No. XX000000 of
Xxxxx 0X, Xxxxx XX, Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxx Xxxx
("XX. XXXX");
(2) GLOBAL TELEPHONE COMMUNICATION INC., a company incorporated in the
British Virgin Islands (IBC No. 346782) and having its registered office
at East Asia Xxxxxxxx, P.O. Box 901, Road Town, Tortola, British Virgin
Islands (the "PURCHASER").
WHEREAS:
(A) Nano Technology Limited (the "COMPANY") is a company incorporated in
the British Virgin Islands, further particulars of which are set out
in the Schedule.
(B) Cyber 2000 Limited ("CYBER 2000"), a company incorporated in Hong
Kong (Company No. 684198) and having its registered office at Room
1802, Dominion Centre, 00-00 Xxxxx'x Xxxx Xxxx, Xxxx Xxxx, is a
wholly-owned subsidiary of the Company. Cyber 2000 is established for
the purpose of developing the "voice over internet protocol" and the
business of providing re-sale services of "voice over internet
protocol".
(C) The Sellers have agreed to sell and the Purchaser has agreed to acquire
the Sale Shares from each of CMS, Spiderweb and Xx. Xxxx subject to and
upon the terms of this Agreement.
(D) In addition to the purchase of the Sale Shares pursuant hereto, the
Purchaser will subscribe for 4,000 Shares ("SUBSCRIPTION TRANSACTION").
Subscription of the Shares and purchase of the Sale Shares pursuant
hereto will take place simultaneously whereupon the Purchaser will enter
into a shareholders agreement in form agreed between the parties (the
"SHAREHOLDERS AGREEMENT") with the Sellers and the Company. The
Shareholders Agreement sets out the terms and conditions upon and
subject to which the parties will invest in the Company and regulates
the internal management of the Company.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.01 In this Agreement (including the Recitals and the Schedule), unless the
context otherwise requires or permits:
"CHEN SALE SHARES" means the 1,000 shares of US$1.00 each in the Company
legally and beneficially owned by Xx. Xxxx;
"CMS SALE SHARES" means the 1,500 shares of US$1.00 each in the Company
legally and beneficially owned by CMS;
"COMPLETION" means completion of the sale and purchase of the Sale Shares
in accordance with the terms of this Agreement;
"ENCUMBRANCE" means any mortgage, charge, pledge, lien (otherwise than
arising by statute or operation of law), hypothecation or other
encumbrance, priority or security interest whatsoever over or in any
property, assets or rights of whatsoever nature and includes any agreement
for any of the same;
"GTCI" means Global Telephone Communication Inc., a company incorporated
in the State of Nevada, United States of America, whose securities are
listed on the NASDAQ OTC Bulletin Board;
"GTCI SHARES" means new shares of par value US$0.001 each in the capital
of GTCI;
"HONG KONG" means the Hong Kong Special Administrative Region of the
People's Republic of China;
"NASDAQ" means National Association of Securities Dealers Automated
Quotations;
"SALE SHARES" means the CMS Sale Shares, the Spiderweb Sale Shares and the
Chen Sale Shares collectively;
"SPIDERWEB SALE SHARES" means the 500 shares of US$1.00 each in the
Company legally and beneficially owned by Spiderweb; and
"US DOLLARS" and the sign "US$" mean the lawful currency for the time
being of the United States of America.
1.02 References to persons include references to individuals, firms, companies,
corporations and unincorporated bodies of persons and vice versa, and
words importing a gender or the neuter include both genders and the
neuter, and reference to a certain gender shall include any gender.
1.03 Reference herein to Clauses, Recitals and Schedule are to clauses and
recitals in and
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schedule to this Agreement (unless the context otherwise requires) and the
Schedule shall be deemed to form part of this Agreement.
1.04 The headings are inserted for convenience only and shall not affect the
construction of this Agreement.
1.05 Unless the context requires otherwise, in this Agreement words importing
the singular include the plural and vice versa.
1.06 All references to any party hereto shall, where the context permits,
include their respective successors, personal representatives, executors,
administrators, estates and permitted assigns.
2. SALE AND PURCHASE
2.01 Subject to and upon the terms and conditions of this Agreement:
(1) CMS shall as legal and beneficial owner sell and the Purchaser shall
purchase the CMS Sale Shares;
(2) Spiderweb shall as legal and beneficial owner sell and the Purchaser
shall purchase the Spiderweb Sale Shares; and
(3) Xx. Xxxx shall as legal and beneficial owner sell and the Purchaser
shall purchase the Chen Sale Shares,
and in each case free from all Encumbrances with all rights now or
hereafter attaching thereto including all dividends or distributions which
may be paid, declared or made in respect thereof at any time on or after
the date of this Agreement. Each Sale Share will rank pari passu with all
other existing shares in the Company.
2.02 The Purchaser shall not be obliged to purchase, and the Sellers shall not
be obliged to sell, any of the Sale Shares unless the sale and purchase of
the Sale Shares pursuant hereto and the Subscription Transaction are
completed simultaneously.
3. CONSIDERATION
3.01 The consideration for the sale and purchase of:
(1) the CMS Sale Shares shall be (i) US$175,000 which shall be paid and
satisfied in cash and (ii) 250,000 GTCI Shares credited as fully
paid to be alloted and issued to CMS or its nominee;
(2) the Spiderweb Sale Shares shall be US$125,000 which shall be paid
and satisfied in cash; and
(3) the Chen Sale Shares shall be (i) US$50,000 which shall be paid and
satisfied in cash and (ii) 250,000 GTCI Shares credited as fully
paid to be alloted and issued to Xx. Xxxx or this nominee.
3
3.02 The GTCI Shares to be allotted and issued pursuant to Clause 3.01 shall
rank PARI PASSU in all respects with the existing issued ordinary shares
of GTCI.
4. COMPLETION
4.01 Completion shall take place at the office of Xxxxxx Xxx & Co. at 00xx
Xxxxx, Xxxxx XX, Xxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx (or such
other place or in such manner as may be agreed between the parties)
immediately upon signing by all parties of this Agreement when all the
acts and requirements set out in Clauses 4.02 and 4.03 shall be
complied with.
4.02 The Sellers shall deliver or procure the delivery to the Purchaser of
all of the following (unless already delivered prior to Completion):
(1) instruments of transfer in respect of the Sale Shares duly
executed by the respective Sellers in favour of the Purchaser;
(2) share certificate(s) in respect of the Sale Shares and such other
documents as may be required to give good title to the Sale Shares
and to enable the Purchaser or its nominee to be registered as the
holder thereof;
(3) copy, certified by a director of the Company as true and complete,
of the resolutions of the board of directors of the Company
referred to in Clause 4.03;
(4) the Shareholders Agreement duly executed by the parties thereto;
(5) certified true copy resolutions of the board of directors of CMS
authorising the sale of the CMS Sale Shares and execution of this
Agreement and the Shareholders Agreement; and
(6) certified true copy resolutions of the board of directors of
Spiderweb authorising the sale of the Spiderweb Sale Shares and
execution of this Agreement and the Shareholders Agreement.
4.03 The Sellers shall cause a meeting of the board of directors of the
Company at which resolutions shall be passed for the approval of the
transfer of the Sale Shares to the Purchaser, registration of such
transfer and execution of the Shareholders Agreement by the Company.
4.04 Against compliance and fulfillment of all acts and requirements set out
in Clauses 4.02 and 4.03, the Purchaser shall deliver to the respective
Sellers:
(1) banker's drafts issued by a licensed bank in Hong Kong of the
respective amounts of US dollars as specified in Clauses 3.01 (1),
(2) and (3) made payable to the respective Sellers being full or
part (as the case may be) consideration for the CMS, Spiderweb and
Chen Sale Shares;
(2) share certificate(s) in respect of the GTCI Shares issued in the
names of CMS
4
and Xx. Xxxx or their respective nominees;
(3) instruments of transfer in respect of the Sale Shares duly
executed by the Purchaser in favour of the respective Sellers;
(4) a counterpart of the Shareholders Agreement duly executed by the
Purchaser;
(5) certified true copy resolution of GTCI authorising the issue and
allotment of GTCI Shares; and
(6) certified true copy resolutions of the board of directors of the
Purchaser authorising the purchase of the Sale Shares and
execution of this Agreement and the Shareholders Agreement.
4.05 Either party may grant time for performance of the requirements under
Clauses 4.02, 4.03 and 4.04 and effect Completion, such indulgence may
be given subject to such terms and conditions as that party may impose.
5. SELLERS' WARRANTIES
5.01 Each of the Sellers hereby jointly and severally represents and
warrants to the Purchaser that all statements of facts herein are true
and correct.
5.02 Each of CMS and Spiderweb hereby represents and warrants to the
Purchaser that:
(1) it has the right, power and authority to enter into and perform
this Agreement which constitute or when executed will constitute
legal, valid and binding obligations on it in accordance with the
terms herein; and
(2) it is the legal and beneficial owner of the CMS Sale Shares or the
Spiderweb Sale Shares (as the case may be) free from all
Encumbrances and there is no agreement or arrangements to create
any Encumbrance over or affecting any of the same.
5.03 Xx. Xxxx hereby represents and warrants to the Purchaser that he is the
legal and beneficial owner of the Chen Sale Shares free from all
Encumbrances and there is no agreement or arrangement to create any
Encumbrance over or affecting any of the same.
5.04 Each of the Sellers will indemnify and keep the Purchaser fully
indemnified on demand from and against all losses, costs and expenses
(including legal expenses) which the Purchaser may incur or sustain
from or in consequence of any of the warranties given by the respective
Sellers under Clauses 5.01, 5.02 or 5.03 not being correct or fully
complied with.
6. COSTS
6.01 Each party shall bear its own legal costs and other fees, costs and
expenses incurred in
5
connection with the negotiation, preparation, execution and performance
of this Agreement and all documentation incidental or relating to
Completion.
6.02 All transaction costs payable in connection with the transfer of the
GTCI Shares from the Purchaser to each of CMS and Xx. Xxxx shall be
borne by the Purchaser and the relevant Seller in equal shares.
7. NOTICES
7.01 Each notice, demand, consent or other communication given or made under
this Agreement shall be in writing and delivered or sent to the
relevant party at its address or fax number set out below (or such
other address or fax number as the addressee has by five days' prior
written notice specified to the other parties):
To CMS : CMS Development Limited, Xxxx X-0, 00
Xxxxxxx Xxxx, Xxxx Xxxx
Attention: Xx. Xxxx Man Xxx, Xxxxxxx
Fax Number: (000) 0000 0000
To Spiderweb : Xxxxx 0X, Xxxxx XX, Xxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxx Xxxx
Attention: Xx. Xxxxx Xxxxxxx Xxxx
Fax Number: [(852) [*]
To Xx. Xxxx : Xxxxx 0X, Xxxxx XX, Xxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxx Xxxx
Attention: Xx. Xxxxx Xxxxxxx Xxxx
Fax Number: [(852) [*]]
To the Purchaser : x/x Xxxxxx Xxx & Xx., 00xx Xxxxx, Xxxxx XX, The
Gateway, Harbour City, Kowloon, Hong Kong
Attention: Xx. Xxxxx Xxxx
Fax Number: (000) 0000 0000
7.02 Any notice, demand, consent or other communication so addressed to the
relevant party shall be deemed to have been delivered (a) if given or
made by letter, when actually delivered to the relevant address; and
(b) if given or made by fax, when dispatched.
7.03 All notices, demands, consents and other communications shall be in the
English language.
8. MISCELLANEOUS
8.01 RESTRICTION ON ANNOUNCEMENTS: Each of the parties hereto undertakes
that prior to Completion and thereafter it will not (save as otherwise
provided in this Agreement or as required by law and other relevant
rules and regulations, including the listing rules governing the
listing of shares on the NASDAQ OTC Bulletin Board) make any
announcement in connection with this Agreement unless the other parties
hereto shall have given their respective consents to such announcement
which consents may not
6
be unreasonably withheld and may be given either generally or in a
specific case or cases and may be subject to conditions.
8.02 TIME: Time shall in every respect be of the essence of this Agreement.
8.03 ASSIGNMENT: This Agreement shall be binding upon each party's
successors and assigns but none of the rights of the parties under this
Agreement may be assigned or transferred without the prior consent of
the other party.
8.04 COUNTERPARTS: 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.
8.05 ENTIRE AGREEMENT: This Agreement constitutes the entire agreement of
the parties hereto and supersedes all prior understandings,
transactions, communications, statements and agreements whether oral or
written between the parties relating to the subject matter hereof.
8.06 SEVERABILITY: 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.
9. GOVERNING LAW AND JURISDICTION
9.01 This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong.
9.02 The parties hereto hereby irrevocably submit to the non-exclusive
jurisdiction of the Hong Kong courts.
9.03 CMS, Spiderweb and the Purchaser hereby irrevocably appoint Xx. Xxxx
Man Xxx, Xxxxxxx (of Xxxx X-0, 00 Xxxxxxx Xxxx, Xxxx Xxxx), Xx. Xxxxx
Xxxxxxx Xxxx (of Xxxxx 0X, Xxxxx XX, Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxx
Xxxx) and Xxxxxx Xxx & Co., (solicitors, of 00xx Xxxxx, Xxxxx XX, Xxx
Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx) (each, the "PROCESS AGENT")
as their respective agent to receive and acknowledge on its 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 each party's Process Agent or, if sent by registered post
to the aforesaid or last known address of such Process Agent, on the
second business day after posting or, if there is a letter box for the
aforesaid or last known address of such Process Agent, upon inserting
the writ and/or any other relevant documents through the letter box
(whether or not it is forwarded to and received by it). In the event
that a party's Process Agent cannot continue to act as such, such
party shall forthwith appoint another agent in Hong Kong for the same
purposes and notify such appointment to the other parties hereto in
writing.
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THE SELLERS
SIGNED by Xxxxxxx Xxxx
------------------ )
for and on behalf of CMS DEVELOPMENT ) /s/ Xxxxxxx Xxxx
LIMITED in the presence of: )
/s/ Simon Y.S. Xxxx
XXXXX X.X. XXXX
Solicitor
Xxxxxx Xxx & Co.
Hong Kong SAR
SIGNED by Xxxxx Xxxxxxx Xxxx
-------------------- )
for and on behalf of SPIDERWEB ) /s/ Xxxxx Xxxxxxx Xxxx
CORPORATION in the presence of: )
/s/ Simon Y.S. Xxxx
XXXXX X.X. XXXX
Solicitor
Xxxxxx Xxx & Co.
Hong Kong SAR
SIGNED by XXXXX XXXXXXX XXXX )
in the presence of: ) /s/ Xxxxx Xxxxxxx Xxxx
/s/ Simon Y.S. Xxxx
XXXXX X.X. XXXX
Solicitor
Xxxxxx Xxx & Co.
Hong Kong SAR
THE PURCHASER
SIGNED by Xxxxxx Xxxxxxxxxxx
------------------- )
for and on behalf of GLOBAL TELEPHONE ) /s/ Xxxxxx Xxxxxxxxxxx
COMMUNICATION INC. in the presence of: )
/s/ Simon Y.S. Xxxx
XXXXX X.X. XXXX
Solicitor
Xxxxxx Xxx & Co.
Hong Kong SAR
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SCHEDULE
PARTICULARS OF THE COMPANY
Company Name : Nano Technology Limited
Date of Incorporation : 1 December 1999
Place of Incorporation : British Virgin Islands
Company Number : 355222
Share Capital : Authorised Issued
----------- ------
US$50,000 divided into 6,000 ordinary shares
50,000 ordinary shares
of US$1.00 each
Registered Office : Offshore Incorporations Limited, P.O. Box 957,
Offshore Incorporations Centre, Road Town, Tortola,
British Virgin Islands
Directors : Nominated by Name of Director
------------ ----------------
CMS Development Limited Xxxx Man Xxx, Xxxxxxx
Spiderweb Corporation Xxxxx Xxxxxxx Xxxx
Registered Agent : Offshore Incorporations Limited
Shareholders : Number of Shares held
CMS Development Limited 2,000
Spiderweb Corporation 2,000
Xxxxx Xxxxxxx Xxxx 2,000
--------
6,000
Outstanding Mortgage(s)/ : Nil
Encumbrance(s)
9