Contract
Exhibit 10.5
THIS AGREEMENT is dated 30th December 2009
Dated
the 30th day of December
2009
(1) GREAT EAST
BOTTLES AND DRINKS (BVI) INC.
(the
“Seller”)
and
(2)
Top Sharp Investments Limited
(the
“Purchaser”)
and
(3)
BEST KEY INVESTMENT LIMITED
(the
“Company”)
___________________________________
for the
sale and purchase of
the
entire issued share capital of
BEST KEY INVESTMENT
LIMITED
___________________________________
TABLE OF
CONTENTS
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Clause
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Page
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1
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1
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DEFINITIONS
AND INTERPRETATION
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2
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2
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SALE
AND PURCHASE OF THE SALE SHARE
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4
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3
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CONSIDERATION
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3
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4
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COMPLETION
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3
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5
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REPRESENTATIONS,
warranties AND UNDERTAKINGS
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4
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6
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CONFIDENTIALITY
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4
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7
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SEVERABILITY
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4
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8
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TIME
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4
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9
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ASSIGNMENT
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4
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10
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COSTS
AND EXPENSES
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4
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11
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STAMP
DUTY
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5
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12
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COUNTERPART
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5
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13
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ENTIRE
AGREEMENT
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5
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14
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FURTHER
ASSURANCE
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5
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15
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NO
WAIVER
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5
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16
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NOTICE
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6
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17
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GOVERNING
LAW AND JURISDICTION
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6
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SCHEDULE
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7
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Information
relating to the company
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7
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EXECUTION
PAGE
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8
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THIS AGREEMENT is dated 30th December 2009
BETWEEN :-
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1.
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GREAT EAST BOTTLES AND DRINKS
(BVI) INC., a company incorporated in the British Virgin Islands
whose registered office is situate at X.X. Xxx 0000, Xxxx Xxxx, Xxxxxxx,
Xxxxxxx Xxxxxx Xxxxxxx (the “Seller”);
and
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2.
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BEST KEY INVESTMENT
LIMITED (Company No.1137676), a company incorporated with limited
liability under the Companies Ordinance, (Cap.32), Laws of Hong Kong
having its registered office situated at 203 Hankow Centre, 0-00 Xxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxx, Xxxx Xxxx (the “Company”);
and
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3.
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TOP
SHARP INVESTMENTS LIMITED, a company incorporated in the British Virgin
Islands whose registered office is situate at P.O. Box 957, Offshore
Incorporations Centre, Road Town, Tortola, British Virgin Islands (the
“Purchaser”).
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WHEREAS
:-
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(A)
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Best
Key Investment Limited is a private company limited by shares incorporated
under the Companies Ordinance (Cap.32), Laws of Hong Kong (the "Company") with an
authorized share capital of HK$10,000.00 divided into 10,000 ordinary
shares of HK$1.00 each, of which one share has been issued and fully paid
up (the "Sale
Share"). The Seller is the beneficial owner of the
entire issued share capital of the
Company.
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(B)
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The
Seller has agreed to sell and the Purchaser has agreed to purchase the
Sale Share, on and subject to the terms and conditions hereinafter
appearing.
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NOW IT IS HEREBY
AGREED as follows
:-
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1.
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DEFINITIONS
AND INTERPRETATION
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1.1
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In
this Agreement (including the Recitals and the Schedule), unless otherwise
expressed or required by the context, the following expressions shall have
the respective meanings set opposite
thereto:-
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Expression
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Meaning
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“Business
Day”
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any
day, other than Saturday, on which banks are open for normal banking
business in Hong Kong;
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“Company”
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Best Key Investment
Limited, a private company limited by shares incorporated under the
Companies Ordinance (Cap.32), Laws of Hong Kong, information in respect of
which is set out in Schedule;
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1
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“Completion”
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completion
of the sale and purchase of the Sale Share pursuant to Clause
6;
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“Completion
Date”
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the
date on which Completion takes place in accordance with Clause
6;
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“Consideration”
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the
total consideration for the purchase of the Sale Share being Hong Kong
Dollars one (HK$1);
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“Parties”
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the
parties to this Agreement;
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“Sale
Share”
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1
ordinary share of HK$1.00 each representing the entire issued share
capital of the Company beneficially owned by the
Seller;
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“Shares”
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ordinary
shares of HK$1.00 each in the capital of the
Company;
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“HK$"
or “HK dollars”
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Hong
Kong Dollars.
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1.2
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1.3
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1.4
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Unless
the context otherwise requires:
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(a)
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words
and expressions importing the singular include the plural and vice
versa;
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(b)
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words
and expressions importing natural persons include corporations and
un-incorporated associations and vice versa;
and
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(c)
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words
and expressions importing the masculine gender shall include the feminine
and neuter gender and vice versa.
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2.
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SALE
AND PURCHASE OF THE SALE SHARE
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2.1
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Subject
to the terms and conditions contained in this Agreement, the Seller shall
sell as beneficial owner and the Purchaser shall purchase (or procure its
nominee(s) to purchase) the Sale Share free from all liens, charges,
incumbrances, pre-emption rights, equities and other third party rights
whatsoever and together with all rights attaching to the Sale Share as at
the date of Completion or subsequently becoming attached to the Sale
Share.
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2
2.2 The
Parties hereto acknowledge and agree that the title to, and any risk attaching
to, the Sale Share shall pass to the Purchaser on Completion.
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2.3
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The
Seller hereby wives and agrees to procure the waiver of any restrictions
on transfer of the Sale Share (including but not limited to the
pre-emption rights) which may exist in relation thereto, whether under the
Articles of Association of the Company or
otherwise.
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3.
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CONSIDERATION
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The
total consideration for the sale and purchase of the Sale Share shall be
HK$ 1 (Hong Kong Dollar one).
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4.
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COMPLETION
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4.1
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Completion
of this Agreement shall take place on or before 31 December
2009 (the “Completion
Date”).
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4.2
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At
Completion, the Seller shall deliver or cause to be delivered the
following documents:
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(a)
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duly
executed instruments of transfer and bought and sold notes in respect of
the Sale Share in favour of the Purchaser (or such person(s) as may be
nominated by the Purchaser) accompanied by the relevant original
certificates for the Sale Share;
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(b)
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a
cheque for an amount equal to the Seller's half share of stamp duty drawn
in favour of “The Government of the Hong Kong Special Administrative
Region” in respect of the transfer of the Sale
Share;
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(c)
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all
the statutory and other books and records (including financial records)
duly written up to date and certificate of incorporation, current business
registration certificate, common seal., company chop, share certificate
book and any other papers and documents of the
Company;
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(d)
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certified
true copies of the board minutes of the Company approving the transfer of
the Sale Share.
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4.3
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On
Completion, the Seller hereby unconditionally releases the Company from
all manners of actions, causes of actions, suits, demands, debts,
accounts, covenants, contracts, damages and any and all other claims
whatsoever which the Seller or his successors or assigns ever had now has
or may in the future have against the
Company.
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3
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5.
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REPRESENTATIONS,
WARRANTIES AND UNDERTAKINGS
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The
Seller hereby represents, warrants and undertakes to the Purchaser that the
Seller is the beneficial owner of the Sale Share free and clear of any lien,
charge or encumbrance whatsoever and the Company has not exercised any lien over
any of its issued shares and there is no outstanding call on any of the Sale
Share and all the Sale Share is fully paid; and there are no options or other
agreements outstanding which call for the issue of, sale of or accord to any
person, corporation, or other entity the right to call for the issue or transfer
of any shares in the capital of the Company or the right to require the creation
of any mortgage, charge, pledge, lien or other security or encumbrance over the
Sale Share.
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6.
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CONFIDENTIALITY
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Other
than such disclosure as may be required by applicable law and regulations
under any competent authorities, none of the Parties shall make, and the
Parties shall procure that the Company will not make, any announcement or
release or disclose any information concerning this Agreement or the
transaction herein referred to or disclose the identity of the other Party
(save disclosure to their respective professional advisers under a duty of
confidentiality or where required by applicable law or regulations or
order or judgment of any court) without the prior written consent of the
other Party.
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7.
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SEVERABILITY
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If at any
time any one or more provisions hereof is or becomes invalid, illegal,
unenforceable or incapable of performance in any respect, the validity,
legality, enforceability or performance of the remaining provisions hereof shall
not thereby in any way be affected or impaired.
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8.
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TIME
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Time
shall be of the essence of this Agreement.
9. ASSIGNMENT
This
Agreement shall be binding on and shall ensure for the benefit of the successors
and assignees of the Parties. None of the Parties shall be entitled
to assign or purport to assign any of its rights or obligations under this
Agreement.
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10.
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COSTS
AND EXPENSES
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Each
of the Purchaser and Seller shall bear its own legal and professional
fees, costs and expenses incurred in the negotiation, preparation,
execution and completion of this
Agreement.
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4
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11.
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STAMP
DUTY
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The
stamp duty payable in respect of transfer of the Sale Share shall be borne
by the Parties in equal share and the Seller shall deliver a cheque in a
sum equal to his share of stamp duty to the Purchaser’s Solicitors in
accordance with Clause 6.2(b) of this Agreement. The Seller
hereby undertakes to pay forthwith to the Purchaser half of any additional
stamp duty which may be imposed by the Hong Kong Stamp Office in respect
of such transfer of Sale Share.
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12.
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COUNTERPART
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This
Agreement may be executed in one or more counterparts, each of which so
executed shall constitute an original and all of which together
individually or otherwise executed by all Parties will constitute one and
the same document.
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13.
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ENTIRE
AGREEMENT
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This
Agreement constitutes the whole agreement between the Parties regarding
the subject matter of this Agreement and supersedes any prior agreements,
understandings or arrangements between them, whether oral or in writing,
and no representation, undertaking or promise shall be taken to have been
given or be implied from anything said or written in negotiations between
the Parties prior to the execution of this
Agreement.
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14.
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FURTHER
ASSURANCE
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Each
Party undertakes to the other that each of them shall do all such acts and
things and execute all such deeds and documents as may be necessary or
desirable to carry into effect or to give legal effect to the provisions
of this Agreement and the transactions hereby
contemplated.
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15.
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NO
WAIVER
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No
failure or delay by 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 the Purchaser of any breach by the Seller of any
provision hereof shall be deemed to be a waiver of any subsequent breach of that
or any other provision hereof.
5
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16.
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NOTICE
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Each
notice, demand or other communication given or made hereunder shall be in
writing and delivered or sent to the relevant addressee at its address or fax
number set out below (or such other address or fax number as the addressee has
by five (5) days' prior written notice specified to the others
below):
To the
Seller :
·
·
Fax
Number: ·
To the
Purchaser:
·
·
Fax
Number: ·
Attention: ·
To the
Company: ·
·
Fax
Number: ·
Attention: ·
Any
notice, demand 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
despatched.
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17.
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GOVERNING
LAW AND JURISDICTION
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17.1
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This
Agreement shall be governed by and construed in all respects in accordance
with the laws of Hong Kong and the Parties agree to submit to the
non-exclusive jurisdiction of the courts of Hong
Kong.
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17.2
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The
submission to the jurisdiction of the Hong Kong Courts shall not limit or
restrict the right of any Party to take proceedings in the courts of any
other country having, claiming or accepting jurisdiction over the other
Party, nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction
whether concurrently or not.
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IN WITNESS whereof the Parties
hereto have executed this Agreement on the day and year first above
written.
6
SCHEDULE
Information relating to
the
Company
| 1. |
Name
|
:
|
BEST
KEY INVESTMENT LIMITED
|
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| 2. |
Company
No.
|
:
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1137676
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| 3. |
Registered
Office
|
:
|
203
HANKOW CENTRE, 0-00 XXXXXX XXXX, XXXX XXX XXXX,
XXXXXXX
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| 4. |
Date
of Incorporation
|
:
|
1
June 2007
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Place
of Incorporation
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:
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Hong
Kong
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||
| 5. |
Director
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:
|
XXXXXX
XXXXX XXXX XXXX
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| 6. |
Secretary
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:
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XXXXXX
XXXXX MUI
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| 7. |
Share
Capital
|
:
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Authorized
|
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:
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HK$10,000.00
divided into 10,000 shares of HK$1.00 each
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||
|
|
:
|
Issued
|
||
| : | 1 share of HK$1.00 each | |||
| 8. | Shareholding structure: | |||
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Name of shareholder
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No. of share held
|
|||
| GREAT EAST BOTTLES AND DRINKS (BVI) INC | 1 | |||
| Total: | 1 | |||
7
EXECUTION
PAGE
The
Seller
SIGNED
by )
)
director(s)
for and on behalf
of )
GREAT
EAST BOTTLES AND
DRINKS )
(BVI)
INC. in the presence of
:-
)
The
Purchaser
SIGNED
by )
)
director(s)
for and on behalf
of )
TOP SHARP
INVESTMENTS
LIMITED )
in the
presence of
:- )
The
Company
SIGNED
by )
)
director(s)
for and on behalf
of )
BEST KEY INVESTMENT
LIMITED )
in the
presence of
:- )
)
8
