THIS AGREEMENT made the 12th day of February Two Thousand and One
BETWEEN all those persons whose respective names and addresses are set out in
the First Schedule hereto (the "Vendors") of the one part and the person whose
name and address are set out in the Second Schedule hereto (the "Purchaser") of
the second part and XXX XXX WAH, holder of Hong Kong Identity Card No.
Al85781(1), gentleman of 1/F., Liven House, 61-63 King Yip Street, Xxxx Xxxx,
Kowloon, Hong Kong (the "Vendor Guarantor") of the third part.
WHEREAS
(A) TOY CONCEPTS INTERNATIONAL LIMITED (the "Company") was incorporated in
Hong Kong under the Companies Ordinance on 5 August 1993 as a private
company limited by shares with an authorized share capital of
HK$1,000,000.00 divided into 1,000,000 ordinary shares of HK$1.00 each,
all of which have been issued and fully paid up as at the date hereof.
(B) The Vendors are respectively the registered holders of the number of
shares in the Company as am set out opposite to their respective names
in the third column of the First Schedule hereto at the date hereof
(hereinafter referred to as "the Sole Shares") and each of the Vendors
has the right, power and authority to sell and transfer the Sale
Shares, free from any claims, debts, liens, options, preemption rights,
charges, encumbrances, equities or adverse rights of any description
together with all rights attached thereto and all dividends and
distributions declared paid or made in respect thereof after the, date
hereof.
(C) The Vendors have agreed to sell and the Purchaser has agreed to
purchase the Sale Shares on the terms and conditions and on the basis
of the warranties, representations, undertakings, agreements and
indemnities hereinafter mentioned.
NOW IT IS HEREBY AGREED as follows
1. DEFINITIONS AND INTERPRETATION
------------------------------
1.1 In this Agreement, unless otherwise expressed or required by context,
the following expressions shall have the respective meanings set
opposite thereto, as follows:
Expression Meaning
---------- -------
"Accounts" the unaudited profit and loss account for the year ended on
and the unaudited balance sheet as at the Accounts Date of the
Company together with the pro forma consolidated balance
sheet of the Company for the financial period ended on the
Accounts Date, a copy of which has been initialed by the
Vendors for the purpose of identification and , annexed hereto
as Annex A;
1
"Accounts Date" 31 March 2000;
"Business Day" any day on which banks in Hong Kong are officially open for
business, except a Saturday;
"Completion" completion of the sale and purchase of the Sale Shares
pursuant to Clause 4;
"Completion Date" the first Business Day after
the fulfillment of the Conditions
Precedent or June 1, 2001, whichever
shall occur later, on which
completion of the transactions set
out in Clause 4.1 are to take place;
"Conditions Precedent" the condition precedent provided in Clause 2.1;
"Consideration" the purchaser price for the purchase of the Sale Shares as set
out in Clause 3.1;
"Deposits" the payment of the Consideration made by the Purchaser pursuant to Clause 3;
"Disclosed" fully and fairly disclosed to the Purchaser in this Agreement
and the Disclosure Letter and the Accounts;
"Disclosure Letter" the disclosure letter dated
the date of this Agreement, from the
Vendors to the Purchaser annexed
hereto as Annex B;
"HK$" Hong Kong Dollars, the lawful currency of Hong Kong;
"Hong Kong" The Hong Kong Special Administrative Region of the
People's Republic of China;
"Purchaser's Solicitors" Messrs. X.X. Xxxx & Co., at 8th Floor, Wing Xxxx Xxxx
Xxxxxxxx, 00 Xxx Xxxxx Xxxx Xxxxxxx, Xxxx Xxxx;
"Tax" and "Taxation" means any form of
taxation, levy, duty, surcharge,
contribution or imposition of
whatever nature (including any fine,
penalty, surcharge or interest in
relation thereto) imposed by a
local, municipal, governmental,
state, federal or other body or
authority iii Hong Kong;
"Vendors' Solicitors" Messrs. Xxxx, Xxx & Xxx xx Xxxx 000, Xxx Xxxxx Building,
Xx.00 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx;
2
"Warranties" the representations, warranties, undertakings or indemnities
made or given! by the Vendors in this Agreement;
"US$" the United States of America Dollars, the lawful currency of
the United States of America;
1.2 The headings to the Clauses of this Agreement are for ease of reference
only and shall be ignored in interpreting this Agreement.
1.3 Reference herein to "Clauses" and "Schedules" are reference to clauses
of and schedules to this Agreement.
1.4 Words and expressions in the singular include the plural and vice
versa,
1.5 Reference to person include any public body and any body of persons,
corporate or unincorporate.
1.6 Reference to Ordinances, statutes, legislations or enactments shall be
construed as a reference to such Ordinances, statutes, legislations or
enactments as may be amended or re-enacted from time to time and for
the time being in force.
1.7 Recitals (A), (B) and (C) form part of this Agreement.
2. CONDITIONS PRECEDENT FOR THE SALE AND PURCHASE OF SALE SHARES
-------------------------------------------------------------
2.1. The respective obligations to affect Completion in accordance with
Clause 4 of this Agreement shall be conditional upon the fulfillment of
the condition that the due diligence investigation to be carried out
pursuant to Clause 2.6 having been completed to the reasonable
satisfaction of the Purchaser ("Conditions Precedent"). The Vendors and
the Purchaser shall use all reasonable endeavors to procure the
fulfillment of the Conditions Precedent as soon as possible but in any
event before 1 June 2001 and the Vendors shall provide all reasonable
assistance required by the Purchaser so as to fulfill the Conditions
Precedent.
2.2 If the Conditions Precedent shall not have been fulfilled or waived on
or before 1 June 2001 and the non-fulfillment is not attributable to
the default of any of the parties hereto, this Agreement shall become
null and void and of no legal effect and neither of the parties hereto
shall have any claim and/or recourse against the other of them save and
except any antecedent breach of the terms hereof and the Vendors shall
forthwith thereafter refund and return the Deposits in full to the
Purchaser without interest, costs or compensations whatsoever.
2.3 In the event that (other than due to the default of the Purchaser) the
Vendors shall despite fulfillment or waiver of the Conditions Precedent
fail to complete the sale of the Sale Shares
3
to the Purchaser pursuant to the terms hereof and/or to carry out any
of the Vendors' obligations herein, it shall be open to the Purchaser
either to enforce the sale of the Sale Shares and the performance of
the outstanding obligations by decree of specific performance against
the Vendors or by written notice to the Vendors to forthwith rescind
this Agreement whereupon the Deposits shall be refunded to the
Purchaser forthwith but without prejudice to the Purchaser's right to
claim for damages (if any) against the Vendors and all documents and
things in respect of the Company previously delivered by the Vendors or
the Vendors' Solicitors to the Purchaser or the Purchaser's Solicitors
shall forthwith be returned to the Vendors or the Vendors' Solicitors.
2.4 In the event that (other than due to the default of the Vendors) the
Purchaser shall despite fulfillment or waiver of the Conditions
Precedent fail to complete the purchase of the Sale Shares and/or to
pay the Consideration or any part thereof pursuant to the terms hereof,
the Vendors may xxx the Purchaser for specific performance of this
Agreement or may by notice in writing to the Purchaser forthwith
rescind this Agreement whereupon the Deposits shall be absolutely
forfeited to the Vendors as liquidated damages but without prejudice to
the right of the Vendors to claim for damages (if any) and specific
performance of this Agreement against the Purchaser and all documents
and things in respect of the Company previously delivered by the
Vendors or the Vendors' Solicitors to the Purchaser or the Purchaser's
Solicitors shall be returned to the Vendors or the Vendors' Solicitors.
2.5 The Purchaser may in its absolute discretion waive all of the
Conditions. If the Vendors shall not receive from the Purchaser any
objection or query in writing in relation to the business or any other
matters concerning the Company on or before 1 June 2001, the due
diligence review and investigation referred to in Clause 2.6 shall be
deemed to have been carried out to the satisfaction of the Purchaser
and the Conditions Precedent shall be deemed to have been fulfilled by
the parties hereto or waived by the Purchaser.
2.6 The Purchaser shall be entitled to carry out a due diligence review and
investigation of the business of the Company to such extent as is
necessary for the transaction contemplated under this Agreement, such
due diligence review to be completed on or before 1 June 2001. In order
to facilitate such due diligence review, as soon as practicable after
the date of this Agreement, the Vendors shall. procure the Company to
make available for inspection to authorized representatives of the
Purchaser all such information relating to the Company and such access
to the premises and all books, title deeds, records, accounts,
contracts relating to the Company as soon as practicable and other
documentation of the Company as the Purchaser may reasonably request as
soon as practicable.
2.7 The Purchaser shall not be obliged to complete the purchase of any of
the Sale Shares unless the sale and purchase of all the Sale Shares
shall be, completed simultaneously.
4
3. PAYMENT
-------
3.1 In November 2000, the Company advanced a refundable deposit in the
amount of One Hundred Seventy Thousand ($170,000) to the Vendors as
Consideration for the proposed purchase of the Shares.
3.2 If the Purchaser is not satisfied with the results of its due diligence
investigation which expires on June 1, 2001, the Purchaser shall be
entitled to a full refund of the $170,000 that was advanced to the
Vendors.
3.3 The Purchaser's obligations set out in this Section 3 are conditional
upon the compliance of all the applicable terms and conditions of this
Agreement on the part of the Vendors,
4. COMPLETION
----------
4.1 Completion of the sale and purchase of the Sale Shares shall take place
on the tenth Business Day after the fulfillment of the Conditions
Precedent or 1 June 2001, whichever shall occur later ("Completion
Date") at the offices of Vendors' Solicitors, or at such date or place
as may be mutually agreed by the parties hereto when the following
business will be simultaneously transacted:
4.1.1 The Vendors shall deliver and/or procure the delivery to the
Purchaser or its nominee(s) the following
4.1.1.1 instrument(s) of transfer in favor of the Purchaser
and/or its nominee(s) in respect of the Sale Shares all duly
executed by the Vendors or the registered holder of the Sale
Shares;
4.1.1.2 original share certificates and the relevant declarations of
trust (if executed) in respect of the Sale Shares;
4.1.1.3 such other documents as may be required to give a good and
effective transfer of title to the Sale Shares to the
Purchaser and/or its nominee(s) and to enable it/them to
become the registered holder(s) thereof;
4.1.1.4 written resignation of the Vendors directors of the Company
with immediate effect after the appointment of the Purchaser's
nominees as referred to in Clause 4.1.2(ii) of this Agreement
and with acknowledgment that they have no claim or right of
action against the Company for compensation for loss of
office, termination of employment or otherwise;
5
4.1.1.5 written resignation of the company secretary of the Company
with immediate effect and with acknowledgment that they have
no claim or right of action against the Company for
compensation for loss of office, termination of employment or
otherwise;
4.1.1.6 written resignation, if required, of the Auditors (if any) of
the Company;
4.1.1.7 all other documents and papers whatsoever relating to the
affairs of the Company as are in the possession or custody of
the Vendors.
4.1.2 The Vendors together with the other director(s) of the Company
shall procure that a board meeting of the Company be held on
Completion and shall procure the passing thereat of board
resolutions to the following effect;
(i) approving the transfer of the Sale Shares to the
Purchaser and/or its nominees and the registration of
the appropriate share transfers subject to the same
being duly stamped;
(ii) appointing three persons as may be nominated by the
Purchaser as directors and appointing such person as
may be nominated by the Purchaser as secretary of the
Company and approving the resignation of the Vendors
directors of the Company and the resignation of the
existing company secretary of the Company.
4.1.3 The Vendors shall do all that is necessary to ensure that the
Sale Shares are duly transferred and registered in the name of
the Purchaser (or its nominee(s)) and that the three persons
as the Purchasers shall nominate are appointed as new
directors of the Company.
4.2 The transactions described in Clause 4.1 shall take place at the same
time so that in default of the performance of any such transactions the
other party or parties shall not be obliged to complete the sale and
purchase aforesaid (without prejudice to any further legal remedies).
5. FURTHER OBLIGATIONS OF THE VENDORS PENDING COMPLETION
-----------------------------------------------------
5.1 The Vendors shall procure that the business of the Company is and shall
be operated in a manner consistent with past practices and shall use
all reasonable endeavors to carry on the business of the Company in the
best interest of the Company in the circumstances or then prevailing
circumstances during the period from the date hereof until Completion.
The Vendors shall procure that the Company shall not during the
aforesaid period except with the prior consent in writing of the
Purchaser:
6
5.1.1 in any material way depart from the ordinary course of its day
to day business either as regards the nature, scope or manner
of conducting the same, or otherwise do anything whereby its
financial position will be materially and adversely affected;
5.1.2 sell or transfer or otherwise dispose of (other than in the
ordinary course of business) any part of its assets, or waive
any rights of material value or cancel or release any debt or
claim, or create or permit to arise any encumbrance on or in
respect of any part of its undertaking, property or assets
save for any encumbrance arising by operation of law and
without any default by the Vendors or the Company;
5.1.3 discharge or satisfy (otherwise than in the ordinary course of
business) any encumbrance, its undertaking, property or assets
or any obligation or liability whether actual or contingent,
or make any payment or enter into any commitment or obligation
or any kind (other than in respect of normal trading accounts
entered into on an arm's length basis and in the ordinary
course of business where full payment is made directly between
the original debtor and creditor so that the direct liability
is discharged in fall);
5.1.4 knowingly contravene or fail to comply with any obligation,
statutory or otherwise, fail to perform and continue to
perform in accordance with the terms of any material
contracts, or knowingly terminate any material agreement,
arrangement or understanding, or enter into any contract or
arrangement outside the ordinary course of business of the
Company;
5.1.5 fail to duly reserve and preserve its material rights in
respect of any actual or potential litigation, arbitration or
other proceedings material to it, or fail to continue to
maintain full force and effect all insurance policies now in
effect or renewals thereof, and not knowingly default under
any provision thereof and duly to give any notice and
presentand maintain any claims under any such insurance
policies;
5.1.6 fail to duly file all reports or other documents required to
be filed with governmental authorities or to duly observe and
conform in all material respects to all applicable laws, or
any consent, approvals, licences and permits in relation to
its business or any or its, assets, or dispose of the
ownership, possession, custody or control of any of its
corporate or other books or records;
5.1.7 issue any shares or other securities or loan capital or merge
or consolidate with any other equity or take any steps with a
view to dissolution, liquidation or winding up or do or permit
to be done any act, deed or thing which might result in the
same;
5.1.8 appoint any director, secretary or (pursuant to any power of
attorney or similar authority) attorney save for the purpose
of Completion under this Agreement;
5.1.9 declare, make or pay any dividend or under distribution;
7
5.1.10 amend, vary or agree to amend or vary any material contract to
which the Company is a party;
5.1.11 lend any money to any of the directors or their respective
associates or give any security over any of its assets to any
of the directors or their respective associates in respect of
any loan made to them;
5.1.12 commit any act or omission which would constitute a breach of
the Warranties set out in the Third Schedule hereto.
6. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
--------------------------------------------
6.1 Save as Disclosed on or before the date hereof, the Vendors hereby
represent and warrant to and undertake with the Purchaser that each of
the matters set out in the Third Schedule are as at the date hereof and
shall as at the Completion Date be true and correct and not misleading
in all material respects.
6.2 Each of Warranties contained in this Agreement (including all
Schedules) will survive the completion of the sale and purchase of the
Sale Shares.
6.3 Nothing herein contained shall prejudice either or the parties' right
to specific performance of this Agreement,
6.4 Each party hereby undertakes to execute and do and cause or procure to
be executed and done all such other documents, instruments, acts and
things as the other party may reasonably require in order to give
effect to this Agreement.
6.5 The Vendors hereby agree and undertake to do execute and perform such
further acts deeds, documents and things as the Purchaser may require
effectively to vest the beneficial ownership of the Sale Shares in the
Purchaser or its nominee(s) and to exercise and compel the exercise of
all voting rights as directors and shareholders of or in the Company to
procure that the Company to do all necessary acts and things to fulfill
the obligations of the Vendors herein contained.
6.6 Each of the parties hereto hereby unconditionally and irrevocably
represents to and warrants to the other that its entry into and
performance of this Agreement will not be contrary to any applicable
law.
6.7 The Vendors shall promptly notify the Purchaser in writing of any
matter or thing which the Vendors become aware which is in breach of or
inconsistent with any of the Warranties. Where the breach of the
Warranty is not of a material nature, upon receipt of such notice by
the Purchaser or at such time when the Purchaser becomes aware of the
matter or thing which is in breach of or inconsistent with any of the
Warranties, the Purchaser shall have the right to demand the Vendors to
remedy or rectify the same by service of a written notice to
8
the Vendors setting forth the particulars of such breach. Upon receipt
of the written notice by the Vendors, the Vendors shall have 14 days
from the date of such notice or until the Completion Date, whichever is
the earlier, to rectify or remedy the breach.
6.8 Where the breach of Warranty is of a material nature or if the Vendors
shall fail to remedy or rectify the breach within the prescribed period
pursuant to Clause 6.7, the Purchaser may elect to rescind this
Agreement. Upon such rescission, the Vendors shall forthwith refund the
Deposits to the Purchaser.
6.9 (a) The liability of the Vendors and the Vendor Guarantor in
respect of any breach of the Warranties and any terms and
conditions of this Agreement shall be limited as provided in
the following subclauses of this Clauses.
(b) The Vendors and the Vendor Guarantor shall be under no
liability in respect of a breach of any of the Warranties or
any terms and conditions of this Agreements unless both of
them shall have received written notice from the Purchaser
prior to the 1st anniversary of the date of this Agreement
giving details of the relevant claim and any such claim shall
(if not previously satisfied, settled or withdrawn) be deemed
to have been waived or withdrawn at the expiration of 3 months
after the 1st anniversary of the date of this Agreement unless
proceedings in respect, thereof shall then already have been
commenced against the Vendors and Vendor Guarantor.
(c) The Vendors and the Vendor Guarantor shall be under no
liability in respect of any breach of the Warranties or any
terms and conditions of this Agreement
(i) if such liability would not have arisen but; for
something voluntarily done or omitted to be done
(other than pursuant to a legally bindingcommitment
created on or before Completion) by the Purchaser
after Completion and otherwise than in the ordinary
course of business;
(ii) if such liability arises by reason of an increase in
the rates of taxation since the Accounts Date;
(iii) to the extent that provision or reserve in respect of
such liability was made in the Accounts; or
(iv) to the extent that such liability arises or is
increased as a result only of any increase in rates
of tax made after Completion with retrospective
effect;
(v) if such liability arises in respect of tax for which
the Company is primarily liable and which arose in
the ordinary course of business of the Company
between Accounts Date and Completion;
9
(d) The aggregate liability of the Vendors and the Vendor
Guarantor in respect of any claim for breach of any of the
Warranties or any terms and conditions of this Agreement shall
be limited to the extent that the amount of such liability
shall be computed after deducting therefrom
(i) the amount by which any taxation for which the
Company is or may be assessed or accountable is
reduced or extinguished as a result of such
liability;
(ii) the amount by which any provision for tax (including
deferred or provisional tax), bad or doubtful debts
or contingent or other liabilities contained in the
Accounts has proved at the date of the relevant claim
to be in excess of the matter for which such
provision was made; and
(iii) the amount of any taxation credits, relief or set-off
due to or already received by the Purchaser or the
Company (except to the extent that the same shall
have been taken into account in the Accounts) and
shall be further limited to the aggregate
Consideration received by the Vendors hereunder. The
Purchaser shall and shall procure the Company to
reimburse to the Vendors and the Vendor Guarantor an
amount equal to any sum paid by the Vendors or the
Vendor Guarantor or any of them in respect of a claim
under the Warranties which is subsequently recovered,
or paid to the Purchaser or the Company by any third
party provided that the Purchaser and/or the Company
shall be entitled to deduct from the amount to be
reimbursed to the Vendors and the Vendor Guarantor as
aforesaid, any costs and expenses as may be incurred
in the recovery of the sum so paid by the Vendors or
the Vendor Guarantor or any part thereof from the
third party.
(f) Without prejudice to the liability of the Vendors and the
Vendor Guarantor in respect of any breach of the Warranties or
any term and conditions of this Agreement
(i) the Purchaser shall notify the Vendors and the Vendor
Guarantor of any assessment or claim against the
Purchaser and shall procure the Vendor Guarantor of
any Company to notify the Vendors and the assessment
or claim against the Company in respect of which (if
valid) a claim would lie against the Vendors and the
Vendor Guarantor under any of the Warranties
forthwith upon the Purchaser or (as the case may be)
the Company becoming aware of the same; and
(ii) The Vendors and the Vendor Guarantor shall be offered
a reasonable opportunity at their expense of
resisting in the name of the Purchaser or (as the
case may be) the Company my such assessment or claim
and shall at the Vendors' and/or the Vendor
Guarantor's expenses be provided with or have made
available to, them all information and documents of
the Company and
10
(to the extent applicable) of the Purchaser
reasonably required by them for the purpose Of such
resistance as aforesaid, but subject to the Company
and the Purchaser being indemnified to their
reasonable satisfaction against all costs and
expenses thereby incurred and to the Purchaser being
kept fully informed of all steps proposed to be taken
by the Vendors and/or the Vendor Guarantor and the
Purchaser shall not and shall procure that the
Company shall not without written consent (such
consent shall not be unreasonably withheld) of the
Vendors and the Vendor Guarantor admit, settle or
discharge any such assessment or claim.
6A. GUARANTEE BY THE VENDOR GUARANTOR
---------------------------------
6A.1 The Vendor Guarantor hereby guarantees, unconditionally and
irrevocably as primary obligor, to the Purchaser the due
observance and performance by the Vendors of all the
agreements, obligations, commitments and undertakings
contained in this Agreement ("Vendors' Guaranteed
Obligations") on the part of the Vendors to be observed and
performed and that the Warranties given or provided by the
Vendors to the Purchaser under this Agreement are true
accurate and correct and the Vendor Guarantor undertakes and
agrees that he will indemnify the Purchaser and keep the
Purchaser fully indemnified on a full indemnity basis in
respect of all losses, costs, expenses and damage whatsoever
which may be sustained by the Purchaser by reason of or in
consequence of any failure of the Vendors to carry out any
such Vendors' Guaranteed Obligations or any breach of the
Warranties' given or provided by the Vendors to the Purchaser
under this Agreement.
6A.2 The guarantee and indemnity provided by the Vendor Guarantor
in this Clause 6A shall be a continuing guarantee and
indemnity and shall cover all Vendors' Guaranteed Obligations
and/or breach of the Warranties given or provided by the
Vendors to the Purchaser under this Agreement notwithstanding
the liquidation, incapacity or any change in the constitution
of the Vendors or any settlement of account or variation or
modification of this Agreement or any indulgence or waiver
given by any party hereto or other matter whatsoever until the
last claim whatsoever by the Purchaser against the Vendors has
been satisfied in full,
6A.3 Should any Vendors' Guaranteed Obligations or the Warranties
given or provided by the Vendors to the Purchaser under this
Agreement, which if valid or enforceable would be the subject
of the guarantee and indemnity in this Clause 6A, be or become
wholly or in part invalid or unenforceable against the Vendors
by reason of any defect in or insufficiency or want of powers
of the Vendors or irregular or improper purported exercise
thereof or breach or want of authority by any person
purporting to act on behalf of the Vendors or because any of
the rights have become barred by reason of any legal
limitation, disability, incapacity or any other fact or
circumstance whether or not always known to the Purchaser, the
Vendor Guarantor shall nevertheless be liable to the Purchaser
notwithstanding the avoidance or invalidity
11
of any term or condition of this Agreement whatsoever
including (without limitation) avoidance under any enactment
relating to liquidation in respect of that Vendors' Guaranteed
Obligations or any of the Warranties given or provided by the
Vendors to the Purchaser under this Agreement as if the same
were wholly valid and enforceable.
6A.4 The guarantee and indemnity provided by the Vendor Guarantor
in this Clause 6A may be enforced against him by the Purchaser
at any time without first instituting legal proceedings
against the Vendors in the first instance or joining in the
Vendors as a party or parties in the same proceedings against
him.
6A.5 For the avoidance of doubt, this Clause 6A shall be subject
always to the relevant provisions of Clause 6.
7. SEVERABILITY
------------
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.
8. ENTIRE AGREEMENT
----------------
This Agreement constitutes the entire agreement and understanding
between the parties in connection with the subject-matter of this
Agreement and supersedes all previous proposals, representations,
warranties, agreements or undertakings relating thereto whether oral,
written or otherwise and neither party has relied on any such
proposals, representations, warranties, agreements or undertakings.
9. TIME
----
9.1 Time shall be of the essence in this Agreement.
9.2 No time or indulgence given by any party to the other shall be
deemed or in any way be construed as a waiver of any of its
rights and remedies hereunder.
12
10. ASSIGNMENT
----------
This Agreement shall be binding on and shall enure for the benefits of
the successors and assigns of the parties hereto but shall not be
assigned by any party without the prior written consent of the other
party.
11. NOTICES AND OTHER COMMUNICATION
-------------------------------
11.1 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 party due to receive such notice at
its address as set out below (or such other address as it may
have notified to the other parties in accordance with this
Clause).
11.2 A notice delivered personally shall be deemed to be received
when delivered and any notice sent by pre-paid recorded
delivery post shall be deemed (in the absence of evidence of
earlier receipt) to be received seven Business Days after
posting and in proving the time of despatch it shall be
sufficient to show that the envelope containing such notice
was properly addressed, stamped and posted o that the
facsimile message was properly addressed and despatched as the
case may be. A notice sent by facsimile message shall be
deemed to have been received at the expiration of 24 hours
after the time of despatch.
11.3 (a) For the purpose of delivery of notices under this
Agreement, the address and facsimile number of the
Purchaser are:
Address : Xxxx 000, Xxxxx Xxxxxxxxxx Xxxxxx,
00-00 Xxx Xxx Pai Road, Xxxx Xxxxx,
New Territories, Hong Kong
Facsimile : (000) 0000 0000
Attention : Xx. Xxxxxx Xxxxxxx
(b) For the purpose of delivery of notices under this Agreement,
the address and facsimile number of the Vendors and the Vendor
Guarantor are:
Address : 1/F., Liven House, 00-00 Xxxx Xxx Xxxxxx,
Xxxx Xxxx, Xxxxxxx, Xxxx Xxxx
Facsimile : (000) 0000 0000
Attention : Xx. Xxx Xxx Xxx
12. COSTS AND EXPENSES
------------------
12.1 Each party shall bear their respective legal and professional
fees, costs and expenses incurred in the negotiation,
preparation and execution of this Agreement.
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12.2 All ad valorem stamp duty payable on the instruments of
transfer and contract notes of the Sale Shares shall be borne
by the Vendors on one, part and the Purchaser on the other
part in equal shares. In the event that the Stamp Office
requires any document(s), account(s) and/or balance sheet(s)
of the Company for the purpose of assessing the amount of
stamp duty payable, the Vendors shall at their own expenses
arrange for the. production of such document(s), accounts)
and/or balance sheet(s).
13. CONFIDENTIAL
------------
13.1 Each party shall treat as confidential all information
obtained as a result of entering into or performing this
Agreement which relates to
(a) the provisions of this Agreement;
(b) the negotiations relating to this Agreement;
(c) the subject matter of this Agreement; or
(d) the other party.
13.2 Notwithstanding the other provisions of this clause, either
party may disclose confidential information:
(a) if and to the extent required by law;
(b) if and to the extent required by existing contractual
obligations;
(c) if and to the extent required to vest the full
benefit of this Agreement in that party;
(d) to its professional advisors, auditors and bankers:,
(e) if and to the extent the information has come into
the public domain through no fault of that party;
(f) if and to the extent the other party has given prior
written consent to the disclosure, such consent not
to be unreasonably withheld or delayed; or
13.3 The restrictions contained in this clause shall apply without
limit in time.
13.4 No public announcement or communication of any kind shall be
made in respect of the subject matter of this Agreement unless
specifically agreed between the parties or unless an
announcement is required pursuant to the relevant law and/or
the rules and regulations of any regulatory bodies. Any
announcement by any party required to be made pursuant to any
relevant law and/or the rules and regulations of any
regulatory bodies shall be issued only
14
after such prior consultation With the other party as is
reasonably practicable in the circumstances,
14. GOVERNING LAW
-------------
14.1 This Agreement shall be governed by and construed in
accordance with the laws of Hong Kong and the parties hereto
agree to submit to the non-exclusive jurisdiction of the
courts of Hong Kong.
15. JOINT AND SEVERAL
-----------------
The obligations and liability of the Vendors under this Agreement shall
be joint and several.
IN WITNESS whereof the parties hereto have signed this Agreement on the
day and year first above written.
SIGNED, SEALED AND DELIVERED
by LUI XX XXXXX in the presence of:
/s/ Xxxx Xxxx Hung /s/ Lui Xx Xxxxx
------------------ ----------------
Trainee Solicitor
Hong Kong SAR
SIGNED, SEALED AND DELIVERED
by LUI YU PIK KITTY in the presence of
/s/ Xxxx Xxxx Hung /s/ Lui Yu Pik Kitty
------------------ --------------------
Trainee Solicitor
Hong Kong SAR
SIGNED, SEALED AND DELIVERED
by XXX XXX WAH in the presence of
/s/ Xxxx Xxxx Hung /s/ Xxxx Xxxx Hung
------------------ ------------------
Trainee Solicitor
Hong Kong SAR
15
SEALED with the COMMON SEAL of INTERNATIONAL SMC (HK) LIMITED and signed by XX.
XXXX XXXXXX, a director in the presence of:
/s/ IU XXXX XXXX /s/ Xxxx Xxxxxx
--------------------- ---------------
Xxxxxxxxx
X.X. Xxxx & Xx.
Xxxx Xxxx SAR.
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First Schedule Name of Vendors
Second Schedule Name of Purchaser
Third Schedule Representations, Warranties and Undertakings
Annex A Accounts
Annex B Disclosure Letter
Schedule 1. Staff List dated July 19, 2000
2. List of Trade Debtors at March 31, 2000
3. List of Trade Creditors at March 31, 2000
4. List of Furniture and Fixtures
5. Annual Return dated August 5, 2000
6. Memorandum and Articles of Association with Special Resolution attached.
7. Salary List dated October 14, 2000.
8. Deed of Guarantee (undated singed Xx. Xxx Xxx Xxx
9. Copy Trading & Profit & Loss Account from April 1st, 2000 to September 30, 2000 and
Balance Sheet as at September 30, 2000 of the Company
