EXHIBIT 2.15
(EXECUTION COPY)
DATE June 29th, 2004
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(1) HARTCOURT CHINA INC AND XX. XXX XX XXXX
(as Vendors)
AND
(2) FIRST INFORMATION TECHNOLOGY LIMITED
(as Purchaser)
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A G R E E M E N T
FOR SALE AND PURCHASE OF SHARES IN
HOPEFUL INTERNET TECHNOLOGIES LIMITED
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This AGREEMENT is entered into on June 29th, 2004
AMONG:
(l) HARTCOURT CHINA INC, a company incorporated in the British Virgin Islands
and whose registered address is P O Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British Virgin Islands and whose business
address is Suite B, 19/F., Ritz Plaza, 000 Xxxxxx Xxxx, Xxxxxxxxxxx, Xxxx
Xxxx ("HARTCOURT"); and
(2) XX. XXX XX XXXX (PERSONAL IDENTITY CARD NO. ) WHOSE RESIDENTIAL
ADDRESS IS SITUATED AT
("Xx Xxx", together with Hartcourt the "Vendors"); and
(2) FIRST INFORMATION TECHNOLOGY LIMITED, a company incorporated in the
British Virgin Islands and whose registered address is P O Box 957,
Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands
and business address is 19/F., Wing Xx Xxxxx, Xx. 00 Xxx Xxxxx Xxxx
Xxxxxxx, Xxxx Xxxx (the "PURCHASER").
RECITALS:
A. The Company is established under the laws of the British Virgin Islands
whose particulars are set out in Schedule 1.
B. The Vendors are the legal and beneficial owners of the Company.
C. The Vendors are desirous to sell and the Purchaser is desirous to purchase
the entire equity capital of the Company on the terms and conditions set
out in this Agreement.
NOW IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, unless the context otherwise requires, the following
words and expressions shall have the following meanings:
"Accounting Date" means 31st December, 2003;
"Accounts" means the audited consolidated accounts
of the Company comprising the balance
sheet of the Company and the
consolidated balance sheet of the
Company as at the Accounting Date, the
profit and loss account of the Company
and the consolidated profit and loss
account of the Company for the financial
year ended on the Accounting Date, the
notes thereto and the directors' and
auditors' reports thereon;
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"Business Day" means a day on which banks in Hong Kong
are open for business (except Saturdays,
Sundays, public holidays in Hong Kong
and a day when the typhoon signal number
8 is raised or black rain storm warning
is issued and is not lowered before 2
p.m. of such alert);
"BVI" means the British Virgin Islands;
"Company" means Hopeful Internet Technologies
Limited, a company established under the
laws of the BVI;
"Companies Ordinance" means the Companies Ordinance (Cap. 32
of the Laws of Hong Kong);
"Completion" means the completion of the sale and
purchase of the Sale Shares pursuant to
Clause 6;
"Completion Date" means the seventh (7th) Business Day
after the conditions set out in Clause
4.1 are fulfilled (or such other date as
the Vendors and the Purchaser may agree
in writing prior to Completion);
"Consideration" means HK$3,622,881, the consideration
for the Sale Shares which is to be
settled in the manner set out in Clause
5;
"Consideration Shares" means 2,179 ordinary shares of US$0.01
each in the share capital of the
Purchaser to be issued to the Vendors on
Completion, pursuant to Clause 5;
"Director" means a director from time to time
appointed by the Company;
"Disclosure Letter" means the letter of even date issued by
the Vendors to the Purchaser in the
agreed form;
"Encumbrances" means and includes any option, right to
acquire, right of pre-emption, mortgage,
charge, pledge, lien, hypothecation,
title retention, right of set off,
counterclaim, trust arrangement or other
security or any equity or restriction;
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"HK$" means Hong Kong dollars, the lawful
currency of Hong Kong;
"Hong Kong" means the Hong Kong Special
Administrative Region of the PRC;
"Intellectual Property Rights" means the rights in respect of any
patents, trade marks, service marks,
applications for any of the foregoing,
copyright, design rights, know-how,
confidential information, trade secrets,
trade and business names and any other
similar protected rights owned by or
belonging to the Company and its
subsidiaries from time to time in any
country;
"Listing Rules" means the Rules Governing the Listing of
Securities on the Stock Exchange;
"PRC" or "China" means the People's Republic of China,
for the purpose of this Agreement,
excluding Hong Kong, Macau and Taiwan;
"US$" means United States dollars, the lawful
currency of the United States of
America;
"Sale Shares" means all the equity capital of the
Company;
"Stock Exchange" means The Stock Exchange of Hong Kong
Limited;
"Taxation" means and includes all forms of tax,
rate, levy, duty, charge, impost, fee,
deduction or withholding of any nature
now or hereafter imposed, levied,
collected, withheld or assessed by any
taxing or other authority in the PRC and
includes any interest, additional tax,
penalty or other charge payable or
claimed in respect thereof;
"Warranties" means the warranties, representations
and undertakings given by the Vendors
pursuant to Clause 7 and set out in
Schedule 2 and any other
representations, warranties and
indemnities made by or on behalf of the
Vendors in this Agreement.
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1.2 Interpretation
In this Agreement unless the context otherwise requires:
(a) reference to any statute or statutory provision includes a reference
to that statute or statutory provision as from time to time amended,
extended or re-enacted;
(b) words and phrases the definitions of which are contained or referred
to in the Companies Ordinance shall be construed as having the
meaning thereby attributed to them but excluding any statutory
modification thereof not in force on the date of this Agreement;
(c) words importing the singular include the plural, words importing any
gender include every gender, and words importing persons include
bodies corporate and unincorporated; and (in each case) vice versa;
(d) all warranties, representations, indemnities, covenants, agreements
and undertakings given or entered into by more than one person are
given or entered into jointly and severally, unless otherwise
specified;
(e) where any Warranty is qualified by being given or made to the best
of the knowledge, information or belief of any person giving or
making the same or so far as that person is aware or is qualified in
any similar way such qualification shall be deemed to be followed by
the words "having made due and careful enquiry";
(f) references to the Parties, Recitals, Clauses and Schedules refer to
the parties, the recitals, clauses of and schedules to this
Agreement;
(g) references to a document being in the "agreed form" or "agreed
terms", means a document the terms of which have been approved by or
on behalf of the Vendors and the Purchaser and a copy of which has
been signed for the purpose of identification by or on behalf of the
Vendors and the Purchaser;
(h) headings used in this Agreement are for convenience only and shall
not affect its interpretation.
1.3 This Agreement include the Recitals, all Clauses and Schedules as may be
amended, varied or revised from time to time.
1.4 Time shall be of the essence in this Agreement.
2. SALE AND PURCHASE OF SALE SHARES
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2.1 Subject to the terms of this Agreement, the Vendors as legal and
beneficial owner shall sell and transfer or procure the transfer of the
Sale Shares free from Encumbrances and the Purchaser shall purchase the
Sale Shares upon Completion.
2.2 The Sale Shares are sold together with all rights attached or accruing
thereto and together with all dividends declared and paid in respect of
periods commencing on or after the Completion Date.
2.3 The Purchaser shall not be obliged to purchase any of the Sale Shares
unless the sale of all the Sale Shares is completed simultaneously.
2.4 Subject to the terms of this Agreement, the Vendors covenant to do and
execute all such acts and things as may be reasonably necessary to vest
the Sale Shares in the Purchaser and to place the Purchaser in full
control of the Sale Shares as from the Completion Date.
3. TRANSFER OF METASTOCK
3.1 Subject to the terms of this Agreement, upon Completion (or as soon as
reasonably practicable thereafter), the Vendors shall make effective
transfer to the Purchaser all its Intellectual Property Rights of the
Chinese translation of the software "Metastock" and its distribution right
in the PRC. Consideration for the Metastock Project has been included in
the total number of Consideration Shares to be issued by the Purchaser to
the Vendors on Completion.
4. CONDITIONS PRECEDENT
4.1 Completion is conditional upon:
(a) the passing of a resolution by the board of directors of Hartcourt
China Inc approving the sale of the Sale Shares to the Purchaser and
all terms in this Agreement and the implementation thereof;
(b) the passing of resolutions by the board of directors and
shareholders of the Purchaser approving the purchase of the Sale
Shares, the issue and allotment of the Consideration Shares and all
terms in this Agreement and the implementation thereof;
(c) all necessary authorizations, orders, grants, consents, permissions
and approvals for all transactions contemplated by this Agreement
(including transfer of the Sale Shares to the Purchaser) having been
obtained from, and all filings and registrations having been
performed with, all applicable authorities, departments and bodies
in the PRC, including without the limitation to the government
approval, consent and permissions required in the PRC in respect of
the Company, from appropriate governments, governmental,
supranational or trade agencies and regulatory bodies and all such
authorizations, and such authorizations, orders, grants, consents,
permissions and approvals remaining in full force and effect.
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4.2 The parties shall use their respective best endeavours to ensure that the
conditions set out in Clause 4.1 are fulfilled by 5:00 p.m. (Hong Kong
time) on or before the date referred to in Clause 4.3.
4.3 If the conditions set out in Clause 4.1 have not been fulfilled by 5:00
p.m. (Hong Kong time) on 15th July, 2004 or such later date as the parties
may agree in writing, this Agreement and everything herein contained
shall, subject to the liability of any party to the other in respect of
any antecedent breaches of the terms hereof, be null and void and of no
effect.
5. CONSIDERATION
5.l The Consideration shall be settled by the Purchaser by the issue of the
Consideration Shares to the Vendors. The Consideration Shares shall be
issued and allotted, credited as fully paid and free from Encumbrances to
the Vendors in the following ratio: (Hartcourt 51%, Xx. Xxx 49%.) Upon
Completion, the Consideration Shares issued to the Vendors shall
constitute 21.79% of the entire issued share capital of the Purchaser as
enlarged by the issue of the Consideration Shares.
5.2 The Consideration Shares issued to the Vendors shall rank pari passu in
all respects with the all other existing issued and allotted shares of the
Purchaser and the Vendors shall be entitled to all rights attached or
accruing thereto including all dividends declared and paid on or after
Completion.
6. COMPLETION
6.1 Completion of the sale and purchase of the Sale Shares shall take place on
the Completion Date at the offices of the Purchaser in accordance with
Schedule 3.
6.2 No party shall be obliged to complete the sale and purchase of the Sale
Shares unless the other party complies fully with the requirements set out
in Schedule 3 applicable to them respectively.
6.3 Without prejudice to any other remedies available to any party, if in
respect of the provisions of this Agreement and in particular Schedule 3
are not complied with by either the Vendors on the one part or by the
Purchaser on the other part on or before the Completion Date, the party
not in default may:
(a) defer Completion to a date not more than 28 days following the
Completion Date (and so that the provisions of this Clause 6.3 (a)
shall apply to Completion as so deferred);
(b) proceed to Completion so far as practicable (but without prejudice
to its rights hereunder); or
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(c) rescind this Agreement without prejudice to any of its other rights
in respect of such default.
7. WARRANTIES, REPRESENTATIONS, AND UNDERTAKINGS
7.1 Save as disclosed in the Disclosure Letter, each of the Vendors hereby
warrant, represent and undertake to the Purchaser the Warranties and
acknowledges that the Purchaser is entering into this Agreement in
reliance on the Warranties and that the Purchaser may treat them as
conditions of this Agreement.
7.2 Save as except in this Agreement, the Vendors agree to indemnify and keep
indemnified the Purchaser (for itself and as trustee for the Company)
against all losses, damages, costs, actions, proceedings, claims, demands
and expenses suffered by the Purchaser or the Company or its subsidiaries
as a result of or in connection with any breach of any of the Warranties.
7.3 Each of the Warranties is without prejudice to each and every other
Warranty.
7.4 The Vendors undertake to the Purchaser that it will forthwith notify the
Purchaser in writing of any matter or thing which may arise or become
known to them after the date of this Agreement and prior to Completion
which is a breach of or inconsistent with any of the Warranties or other
provisions contained in this Agreement.
7.5 In the event of the aforesaid notice is given to the Purchaser or the
Purchaser otherwise becoming aware or it becoming apparent on or before
Completion that any of the Warranties or any other term of this Agreement
is incorrect or breached in any material respect, the Purchaser may
rescind this Agreement by notice in writing to the Vendors without
prejudice to any rights it may have in respect of the alleged breach or
rescission hereof.
7.6 The Warranties shall remain in full force and effect after and
notwithstanding Completion.
7.7 The Warranties are given subject to the matters disclosed in the
Disclosure Letter, no other information relating to the Company which the
Purchaser has knowledge whether actual or constructive shall prejudice any
claim made by the Purchaser under the Warranties or operate to reduce any
amount recoverable.
7.8 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) in the event of there being discovered a breach of any
Warranty which was not disclosed in the Disclosure Letter, any damages or
compensation to which the Purchaser may be entitled may, if the Purchaser
so elects, be calculated on the following basis, that is to say there
shall be paid to the Purchaser such sum as shall represent the diminution
in the value of the Sale Shares as a result of such breach, plus any and
all expenses and costs, including without limitation attorney's fees and
expenses, to enforce this provision and to collect such sum.
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7.9 The Purchaser may take action for any breach or non-fulfillment of any of
the same before or after Completion and in the event of action taken after
Completion. Completion shall not in any way constitute a waiver of the
Purchaser's rights notwithstanding that such rights may have been arisen
or known to the Purchaser before Completion.
7.10 Notwithstanding anything contained in this Clause 7 or any other provision
of this Agreement:
(a) no liability shall in any event arise in respect of any claim under
the Warranties unless:
(i) the amount of a single claim exceeds HK$100,000; or
(ii) the amount of a single claim (when aggregated with the amount
of any other claim then or previously made hereunder against
the Vendors) exceed HKD$100,000 in which event the whole of
such claim and all previous claims shall be recovered in full
within one year.
(b) the aggregate liability of the Vendors in respect of all breaches
under the Warranties shall not exceed the amount of the
Consideration; and
(c) (i) the Vendors shall not be liable for any breaches of the
Warranties unless on or before 3 months from the date of this
Agreement, the Purchaser shall have given written notice to
that Vendors of any claim, such notice to comply with the
provisions of Clause 7.10 (c) (ii);
(ii) Any notice of a claim for any breach of the Warranties given
by the Purchaser to the Vendors shall specify (in reasonable
detail) the matters which give rise to the breach, the nature
of the breach and an estimate of the amount claimed in respect
thereof ;
7.11 Purchaser's warranties
The Purchaser represents and warrants to the Vendors that:
(a) it is a company duly incorporated and subsisting under the laws of
BVI and has the corporate power and, subject to the fulfillment of
the conditions in Clause 4.1, has obtained all necessary approvals,
authorizations and consents to enter into and perform its
obligations under this Agreement and has taken all necessary
corporate and other action to authorize the entering into and
performance of this Agreement;
(b) this Agreement constitutes the legal, valid and legally binding
obligations of the Purchaser and are and will be fully enforceable
against the Purchaser in accordance with their respective terms;
(c) the execution and delivery of ,and the performance by the Purchaser
of its obligations under this Agreement will not:
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(i) result in a breach of any provision of the memorandum and
articles of association or bye-laws of the Purchaser; or
(ii) result in a breach of, or constitute a default under, any
instrument or agreement or contract or deed to which the
Purchaser is a party or by which the Purchaser is bound
(including any shareholder's agreement between its members in
respect of the Purchaser);or
(iii) result in a breach of any law, rule or regulation or any
order, judgment or decree of any court or governmental,
regulatory, judicial or administrative body to which the
Purchaser is a party or by which the Purchaser is bound;
(d) the Purchaser through its wholly owned subsidiaries holds
219,999,999 shares (ie.78.57% equity interest) in GTI Financial
Information Limited ("GTI");
(e) subject to the fulfillment of the conditions in Clause 4.1, the
Consideration Shares to be issued pursuant to the terms of the
Agreement and have been duly authorized by the Purchaser and will be
validly issued, credited as fully-paid and unencumbered and free and
clear of any security interests, claims (including pre-emptive
rights and other restrictions on disposals of the Consideration
Shares), liens or encumbrances and will be freely transferable and
will rank PARI passu in all respects with all other issued shares in
the capital of the Purchaser then in issue;
(f) save for the matters and transactions contemplated in this
Agreement, there are no ( and there will be none up to and on the
Completion Date) outstanding options, warrants, rights (including
conversion or preemptive rights) or agreements for the purchase,
subscription, issue and allotment or acquisition from the Purchaser
of any of its capital shares. Except for the existing memorandum and
articles of association of the Purchaser as at the date hereof, the
existing shareholder's agreement dated 3rd January 2000 between Hu
Qing Shan, Xx Xxxx, Xxxx Xxx and Xxxxx Xxxx Feng as Party A,
Illumination International Limited as Party B, Twin Tiger Limited as
Party C, Shenzhen Genius Information Technologies Limited as Party
D, GTI as Party E and Shenzhen Ju Lie Information Consulting Limited
as Party F respectively and the matters and transactions
contemplated in this Agreement, the Purchaser and/or any existing
shareholder of the Purchaser is not a party or subject to any
agreement or understanding which affects or relates to the voting or
giving of written consents with respect to any shares of the
Purchaser or by a director of the Purchaser (and will not be a party
or subject to any of the aforesaid up to and on the Completion
Date). Except the matters and transactions contemplated in this
Agreement, there is no other agreement or understanding (and there
will be none up to and on the Completion) between any persons and/or
entities, which affects or relates to the voting or giving of
written consents with respect to any shares of the Purchaser or by a
director of the Purchaser;
(g) the particulars of the Purchaser contained in Schedule 5 are true
and accurate in all respects;
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(h) all returns particulars resolutions and other documents required to
be filed with the relevant authorities in Hong Kong by the Purchaser
have been duly filed and the Purchaser has complied with all legal
requirements in connection with its formation and with all issues of
its shares;
(i)
7.12 The Purchaser shall not do or allow and shall procure that no act or
omission shall occur before Completion which would constitute a breach of
any of the Warranties, representations and undertakings given by the
Purchaser in this Agreement if they were given at Completion or which
would make any of such warranties inaccurate or misleading if they were so
given.
7.13 In the event of it being found prior to Completion that any of the
warranties, representations and undertakings given by the Purchaser in
this Agreement are untrue or incorrect, or in the event of any matter or
thing arising or becoming known or being notified to the Vendors which is
inconsistent with any of such warranties, representations and
undertakings, the Vendors shall not be bound to complete the sale and
purchase of the Sale Shares and may by written notice rescind this
Agreement without liability on its part. The right conferred upon the
Vendors by this Clause is in addition to and without prejudice to any
other rights of the Vendors (including any rights to claim damages or
compensation from the Purchaser by reason of any such breach or
non-fulfilment) and failure to exercise it shall not constitute a waiver
of any such rights.
7.14 The Purchaser hereby undertakes to indemnify and keep indemnified the
Vendors against any loss or liability suffered by the Vendors as a result
of or in connection with any breach of any of the warranties,
representations and undertakings given by the Purchaser in this Agreement
and against any costs and expenses incurred in connection therewith
provided that the indemnity contained in this Clause shall be without
prejudice to any other rights and remedies of the Vendors in relation to
any such breach. The aggregate liability of the Purchaser in respect of
all breaches under the Warranties shall not exceed the amount of the
Consideration, and the Purchaser shall not be liable for any breach of the
Warranties unless on or before 3 months from the date of this Agreement,
the Vendors shall have given written notice to that Purchaser of any
claim, such notice shall specify (in reasonable detail) the matters which
give rise to the breach, the nature of the breach and an estimate of the
amount claimed in respect thereof.
7.15 The rights conferred upon the Purchaser by this Clause 7 are in addition
to and without prejudice to any other rights of the Purchaser and failure
to exercise it shall not constitute a waiver of any such rights
notwithstanding that such breach or non-fulfillment may have been known to
or discoverable by the Purchaser before Completion.
7.16 The Vendors hereby waive any and all claims against the Company and all
its subsidiaries and their respective officers, employees, servants,
agents and representatives in respect of any information supplied by any
of them to the Vendors on or before the date hereof in connection with any
of the Warranties or any matters which have been disclosed to the
Purchaser or otherwise howsoever in relation to the business or affairs of
the Company or any of its subsidiaries.
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8. CONFIDENTIALITY
8.1 Subject to the fulfilment of Clause 4.1, the Vendors undertake at all
reasonable times, notwithstanding Completion, it will at the request of
the Purchaser promptly give to the Purchaser such Information (defined in
Clause 8.3) in its possession.
8.2 Subject to the fulfilment of Clause 4.1, the Vendors further undertake to
the Purchaser that they will not and will procure all their respective
officers, employees, servants, agents and representatives will not at any
time after Completion for their own benefit or on behalf of any other
person take away, make use of or disclose to any person (except as may be
necessary to comply with any statutory obligation or order of any court or
statutory tribunal of competent jurisdiction) any Information are
confidential in any way relating to the business or affairs of the or to
any customer, client, agent, supplier or any other person who has or has
had any dealings with the Company.
8.3 In this Clause 8, "Information" refers to all information in the
possession of or within the control of the Vendors or their respect
officers, employees, servants, agents and representatives concerning the
business, dealings, transactions or affairs of the Company and all claims
made or threatened against the Company.
8.4 The Purchaser hereby undertakes with the Vendors that it will not, prior
to Completion and save as required by law, make use of or disclose or
divulge any confidential information relating to the Company obtained by
it or its representatives pursuant to this Agreement and the transactions
contemplated thereby to any person other than its own officers, employees
or professional advisors.
9. NON-COMPETITION AND NON-SOLICITATION
9.1 Subject to the fulfilment of Clause 4.1, the Vendors undertake from the
Completion Date to the expiry of 12 months after the Completion Date, it
will not and will procure all its respective officers, employees,
servants, agents, associates and representatives will not for their own
benefit or on behalf of any other person without the prior written consent
of the Purchaser:
(a) carry on (whether alone or in partnership or joint venture with
anyone else) or be concerned with or interested any business carried
by the Company in the PRC at any time within 12 months prior to the
Completion Date or directly or indirectly competitive with such
business of the Company in the PRC save and except as a shareholder
(for investment purposes only) holding not more than 5% directly or
indirectly of the securities of a company listed on a recognized
stock exchange;
(b) whether as principal, agent or servant canvass or solicit business
from any person who was a customer, client, agent or supplier of the
Company in the PRC during the period of 12 months immediately prior
to Completion;
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(iii) offer employment to any person who at the date of this
Agreement or within 12 months prior to the Completion Date, is
or had been an employee of the Company in the PRC and for so
long thereafter as such employee shall remain in the
employment of the Company in the PRC or for a period of 6
months after leaving such employment; or
(iv) offer any inducement or encouragement to any such employee to
cease to be so employed or to seek employment with any other
employer or to become self-employed or to go into any
partnership or business on his own account in the PRC.
9.2 Each of the restrictions contained in Clause 9.l is separate and distinct
and is to be construed separately from the other restrictions. The Vendors
hereby acknowledge that he/it considers such restrictions to be reasonable
both individually and in aggregate and that the duration, extent and
application of each of such restrictions are no greater than is necessary
for the protection of the legitimate interests of the Purchaser and that
the Consideration paid by the Purchaser under the terms of this Agreement
takes into account and adequately compensates them for any restriction or
restraint imposed hereby. However, in the event that any such restriction
shall be found to be void or unenforceable but would be valid or
enforceable if some part or parts thereof were deleted or the period or
area of application reduced, the Vendors hereby agree that such
restriction shall apply with such modification as may be necessary to make
it valid.
10. CONDUCT OF THE COMPANY UP TO COMPLETION
10.1 Pending Completion, the Vendors undertake with the Purchaser to procure
that the Company and its subsidiaries will NOT:
(a) enter into any commitment, contract or arrangement other than in the
ordinary and proper course of its business;
(b) dispose of or create or permit any Encumbrances over any of its
assets or agree so to do, other than a disposal of its stock in
trade in the ordinary and proper course of its business;
(c) incur any material liabilities other than in the ordinary and proper
course of its business;
(d) hire any new employee other than those general staff, alter the
remuneration or conditions of employment or superannuation of any
employee (except under the requirements of any award, industrial
agreement, service contract or law) or terminate the employment of
any employee (except for fraud or misconduct);
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(e) allot or issue or agree to allot or issue any shares or any loan
capital or any security convertible into share capital;
(f) declare or pay any dividend or make any other distribution of its
profits;
(g) alter its memorandum or articles of association other than for the
purpose of transferring the Sale Shares to the Purchaser and in the
agreed terms; or
(h) change its name.
10.2 Up to Completion the Vendors shall cause the Company, at all reasonable
times, to make all premises, plant, stock, Accounts and records available
for the Purchaser's inspection for the purposes of this Agreement and
allow copies of such records to be taken.
11. INDEMNITY
11.1 The Vendors shall indemnify and hold harmless the Purchaser against each
proceeding, judgment, loss, damage, cost, expense or liability suffered,
incurred by or brought or made or recorded against the Purchaser, as a
direct or indirect consequence of:
(a) any breach by the Vendors or any other person of any of the
Warranties;
(b) any Warranty not being true and correct or being misleading as at
the Completion Date; or
(c) any failure by the Vendors to duly perform any of the obligations
imposed upon them by this Agreement.
11.2 The Vendors further acknowledge that the aforesaid indemnity:
(a) extends to all costs, expenses and other amounts incurred or paid by
the Purchaser in the enforcement or purported or attempted
enforcement of such indemnity or for the preservation of or in any
manner in reference to the rights conferred upon the Purchaser by
this Agreement, including legal costs as between solicitor and
client;
(b) will not be abrogated, modified, prejudiced, affected or considered
as wholly or partially discharged by any one or more of:
(i) any time, credit, indulgence or concession extended by the
Purchaser or the Company to the Vendors or any other person;
(ii) any compounding, compromise, release, abandonment, waiver,
variation, relinquishment or renewal of any rights of the
Purchaser or the Company against the Vendors or any other
person;
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(iii) the neglect or omission of the Purchaser or the Company to
enforce any of those rights or any delay in the enforcement of
any of those rights; and
(iv) the winding up, bankruptcy or death of any of the Vendors.
(c) is continuing and irrevocable and the obligations of the Vendors
will be absolute and unconditional in all circumstances; and
(d) will be in addition to and not in substitution for any other
indemnity provided under this Agreement or any other rights which
the Purchaser or the Company may have against the Vendors from time
to time and will not merge on Completion.
11.3 The Purchaser shall indemnify and hold harmless at all times the Vendors
against each proceeding, judgment, loss, damage, cost, expense or
liability suffered, incurred by or brought or made or recorded against the
Vendors, whether before or after Completion or in respect of any period
before or after Completion, as a direct or indirect consequence of:
(a) any breach by the Purchaser of any of the Warranties;
(b) any Warranty given by the Purchaser not being true and correct or
being misleading as at the Completion Date; or
(c) any failure by the Purchaser to duly perform any of the obligations
imposed upon them by this Agreement.
11.4 The Purchaser further acknowledges that the aforesaid indemnity:
(a) extends to all costs, expenses and other amounts incurred or paid by
the Vendors in the enforcement or purported or attempted enforcement
of such indemnity or for the preservation of or in any manner in
reference to the rights conferred upon the Vendors by this
Agreement, including legal costs as between solicitor and client;
(b) will not be abrogated, modified, prejudiced, affected or considered
as wholly or partially discharged by any one or more of:
(i) any time, credit, indulgence or concession extended by the
Vendors or the Company to the Purchaser or any other person;
(ii) any compounding, compromise, release, abandonment, waiver,
variation, relinquishment or renewal of any rights of the
Vendors or the Company against the Purchaser or any other
person;
(iii) the neglect or omission of the Vendors or the Company to
enforce any of those rights or any delay in the enforcement of
any of those rights; and
15
(iv) the winding up, bankruptcy or death of any of the Purchaser.
(c) is continuing and irrevocable and the obligations of the Purchaser
will be absolute and unconditional in all circumstances; and
(d) will be in addition to and not in substitution for any other
indemnity provided under this Agreement or any other rights which
the Vendors or the Company may have against the Purchaser from time
to time and will not merge on Completion.
12. CONTINUING OBLIGATIONS
12.1 The Vendors must do nothing to discourage the Company's or its
subsidiaries' current clients and new clients to utilize the goods and
service of the Company's or its subsidiaries' business.
12.2 The Vendors must provide all reasonable assistance including access to any
documents in their possession or under their power or control in relation
to any dispute between the Company or its subsidiaries and any person.
12.3 Each obligation and warranty of a party to this Agreement (except an
obligation fully performed at Completion) continues in force despite
Completion.
12.4 Default
(a) No party to this Agreement shall be entitled to enforce any rights
or remedies under this Agreement or at common law arising out of the
default of any other party in performing or observing any of the
terms and conditions of this Agreement (other than the right of any
party to xxx for any moneys already due) UNLESS the non defaulting
party has given to the party in default ("DEFAULTING PARTY") a
written notice specifying the default and stating his intention to
enforce his rights and remedies unless the default is made good
within 14 days and the Defaulting Party fails within that period to
remedy the default. If the default is not so rectified then the
non-defaulting party may:
(i) demand immediate payment to it of all moneys to be paid to it
by the defaulting Party pursuant to this Agreement;
(ii) suspend compliance with its obligations under this Agreement
until the default is so rectified; and
(iii) xxx for damages or seek specific performance of this Agreement
or any other remedy to which it might be entitled.
16
13. COSTS
13.1 Each party shall bear its own legal and other costs and expenses arising
directly or indirectly with respect to the preparation, execution,
completion and performance of this Agreement or any other related
documentation.
13.2 Notwithstanding the foregoing, the Vendors and the Purchaser shall bear
any stamp duty payable in respect of the transfer of the Sale Shares in
equal shares.
14. NOTICE
14.1 Delivery
All notices, demands or other communications which are required to be
given under this Agreement shall be in writing in English and sent to:
(a) in the case of the Vendors:
Vendors' Address : Suite 0000 Xxxxx VentureTech Plaza,
819 Xxx Xxxx Xx Xxxx, Xxxxxxxx,
XXX, 000000
Facsimile number : in PRC :- 86 21 5213 0664
Attention : Mr Xxxxx Xxxx
(b) in the case of the Purchaser:
Address : 19/F., Wing Xx Xxxxx, 00 Xxx Xxxxx
Xxxx Xxxxxxx, Xxxx Xxxx
Facsimile number : 852-28106070
Attention : Xx Xxxxxxx Xxxxx
or to such other address or facsimile number or marked for the attention
of such other person as the recipient may designate by notice given in
accordance with the provisions of this Clause 14.
14.2 Receipt
Any such notice may be delivered personally or by prepaid post or sent by
facsimile transmission and shall be deemed to have been effectively
served:
(a) on the day of receipt, where any personally delivered letter or
facsimile message is received on any Business Day before or during
normal working hours;
(b) on the following Business Day, where any personally delivered letter
or facsimile message is received either on any Business Day after
normal working hours or on any day which is not a Business Day;
(c) on the third Business Day following the day of posting, upon
despatch from within Hong Kong of any posted letter to the address
of a recipient in Hong Kong, unless actually received sooner; or
17
(d) on the seventh Business Day following the day of posting, upon
despatch from within Hong Kong of any posted letter to the address
of an overseas recipient (and vice-versa), unless actually received
sooner.
15. GENERAL
15.1. Assignment
The Parties shall not be permitted to assign or transfer or purport to
assign or transfer any of their rights or obligations under this Agreement
without the prior written consent of the other party.
15.2. Waiver
(a) A failure or delay in exercising or the partial exercise of any
provision of, or right, election or discretion under, this Agreement
is not a waiver of that provision, right, election or discretion.
(b) A waiver of any such provision, right, election or discretion or of
any breach or default under this Agreement must be in writing and
signed by the party granting the waiver.
15.3 Variation
A variation of any term of this Agreement must be in writing and signed by
all Parties.
15.4 Cumulative rights
The rights or remedies conferred on any party by this Agreement are in
addition to all rights and remedies of that party at law or in equity.
15.5 Further assurance
Each party will sign execute and complete all further documents necessary
to effect, perfect or complete the provisions of and the transactions
contemplated by this Agreement.
15.6 Severability
If any part of this Agreement is or becomes illegal, invalid or
unenforceable in a jurisdiction, the legality, validity or enforceability
of the remainder of this Agreement will not be affected and this Agreement
will be read as if that part had been deleted.
15.7 Entire understanding
This Agreement contains the entire understanding and agreement between the
Parties as to the subject matter of this Agreement.
18
15.8 Survival
All agreements, obligations covenants and representations contained in
this Agreement which have not been fulfilled shall unless otherwise
expressly stated survive the execution and consummation of this Agreement
and the transactions in relation thereto.
16. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and each party shall submit to the non-exclusive
jurisdiction of the courts of Hong Kong.
IN WITNESS whereof this Agreement has been duly executed the day and year first
before written.
The Vendors
-----------
SIGNED by )
for and on behalf of Hartcourt China Inc. )
)
in the presence of : )
SIGNED by )
Xx. Xxx Luping )
)
in the presence of : )
The Purchaser
-------------
SIGNED by )
for and on behalf of )
First Information Technology Limited )
in the presence of: )
19
SCHEDULE 1
PARTICULARS OF THE COMPANY
A. THE COMPANY
1. Name : Hopeful Internet Technologies Limited
2. Registered Office : X.X. Xxx 000, Xxxxxxxx Xxxxxxxxxxxxxx Xxxxxx,
Xxxx Xxxx, Xxxxxxx, XXX
0. Date of Incorporation : January 11, 2000
4. Place of Incorporation : BVI
5. Directors : Xxxxxxx Xxxx
6. Authorised Capital : US$50,000
Issued Capital : US$
7. Shareholders : Hartcourt China Inc 51%
Xxx Xx Xxxx 49%
8. Nature of business : The holding of 100% equity interest in
Shanghai Sinobull Information
Corporation Limited [CHINESE TEXT OMITTED]
which is a wholly foreign owned
enterprises incorporated in Shanghai,
PRC and its business is economic
information and data distribution,
computer information and data
collection, network technical services,
transfer of technology, technical
supports, software development and
consultation, sales of self developed
products.
20
SCHEDULE 2
WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS
The Vendors hereby represent, warrant and undertake to and with the Purchaser in
title in the following terms:-
l. CAPACITY
1.1 The Vendors have full power and capacity to enter into and perform this
Agreement and this Agreement will, when executed, constitute binding
obligations on each Vendor in accordance with their terms.
1.2 All necessary authorization for the Vendors to enter into this
Agreement has been duly obtained.
2. ACCOUNTS AND RECORDS
2.l Books and Records
2.l.l The Company and its subsidiaries have at all times fully, properly and
accurately maintained all books, accounts and records required by law
to be maintained all of which books, accounts and records are in its
possession.
2.l.2 The books, accounts and records of the Company and its subsidiaries
duly and accurately record all matters required by law to be entered
therein and accurately present and reflect in accordance with generally
accepted accounting principles and standards the assets and liabilities
(actual and contingent) of the Company and its subsidiaries and all
transactions to which it is or has been a party.
2.2 Accounting Matters
2.2.l The Accounts were prepared in accordance with the historical cost
convention and the bases and policies of accounting adopted for the
purpose of preparing the Accounts are the same as those adopted in
preparing the audited accounts of the Company and its subsidiaries in
respect of the last three preceding accounting periods of the Company
and its subsidiaries.
2.2.2 The Accounts:-
2.2.2.l give a true and fair view of the assets and liabilities of the
Company and its subsidiaries at the Accounting Date and its
profits for the twelve months period ended on that date;
2.2.2.2 comply with the requirements of the relevant regulations and
legislation;
2.2.2.3 have been prepared in accordance with good accounting practice
in the PRC and comply with all current standard accounting
practices applicable to a PRC company;
2.2.2.4 are not affected by any extraordinary, exceptional or
non-recurring item;
21
2.2.2.5 properly reflect the financial position of the Company and its
subsidiaries as at their date;
2.2.2.6 fully disclose all the assets and liabilities of the Company
and its subsidiaries as at their date;
2.2.2.7 make full provision or reserve in accordance with good
accounting practice in PRC for all liabilities and capital
commitments of the Company and its subsidiaries outstanding at
the Accounting Date including contingent, unquantified or
disputed liabilities;
2.2.2.8 make full and proper provision or reserve in accordance with
the principles set out in the notes included in the Accounts
for all Taxation liability to be assessed on the Company and
its subsidiaries or for which it may be accountable in respect
of the twelve months period ended on the Accounting Date and
such provision shall be sufficient to cover all Taxation
assessed or liable to be assessed on the Company and its
subsidiaries or for which the Company is or may become
accountable in respect of profits, income, earnings, receipts,
transfers, events and transactions up to and including the
Accounting Date.
2.2.3 No amount included in the Accounts in respect of any fixed or current
asset exceeds its purchase price or production cost at the Accounting
Date.
2.2.4 No amount included in the Accounts in respect of any current assets
exceeds its net realisable value at the Accounting Date.
2.3 Stock-in-trade and work in progress
2.3.l In the Accounts the stock-in-trade and work in progress of the Company
and its subsidiaries have been treated strictly in accordance with
standard accounting practices applicable to a PRC company.
2.3.2 In the Accounts all redundant, obsolete and slow moving stock-in-trade
has been written off or written down as appropriate.
2.4 Depreciation
In the Accounts the fixed assets of the Company and its subsidiaries
have been depreciated in accordance with standard accounting practices
applicable to a PRC company.
2.5 Deferred taxation
Where provision for deferred Taxation is not made in the Accounts full
details of the amounts of such deferred Taxation must be disclosed in
the Disclosure Letter.
2.6 Book debts
2.6.l No part of the amounts included in the Accounts or subsequently
recorded in the books of the Company as owing by any debtor is or shall
at the Completion Date be overdue by more than 12 weeks or has been
released on terms that any debtor pays less than the full book value of
his debt or has been written off or has proved to any extent to be
irrecoverable or is now regarded by the Company and its subsidiaries as
irrecoverable in whole or in part.
22
2.6.2 All amounts due to the Company and its subsidiaries from debtors as at
the Completion Date (less the amount of any provision or reserve
determined on the same basis as that applied in the Accounts and
disclosed in writing to the Purchasers) shall be recoverable in full
in the ordinary course of business (and in any event not later than 12
weeks after the Completion Date) and none of such debts is or shall at
the Completion Date be subject to any counter-claim or set off except
to the extent of any such provision or reserve.
2.7 Treatment in the Accounts
There are no material differences between the accounting and taxation
treatment of any item in the Accounts.
2.8 Memorandum and articles of association and statutory books
2.8.1 The copy of the memorandum and articles of association of the Company
provided by the Vendors to the Purchaser is accurate and complete in
all respects
2.9 Documents filed
2.9.l All returns, particulars, resolutions and documents required by the
relevant legislation to be filed with the relevant government
authority in respect of the Company and its subsidiaries have been
duly filed and were correct and due compliance has been made with all
the provisions of the relevant regulations and legislation and other
legal requirements in connection with the formation of the Company and
its subsidiaries.
2.9.2 All charges created by the Company and its subsidiaries have (if
appropriate) been registered in accordance with the provisions of the
relevant legislation
3. MATTERS SINCE THE ACCOUNTING DATE
3.l Since the Accounting Date:-
3.l.l no distribution of capital or income has been declared, made
or paid or agreed or resolved to be declared, made or paid;
3.l.2 no loans have been made by the Company and its subsidiaries
and no loan capital or loan has been or become liable to be
repaid by the Company and its subsidiaries in whole or in
part;
3.l.3 the Company and its subsidiaries have not borrowed, raised
or taken any money or any financial facility;
3.l.4 the business of the Company and its subsidiaries have been
carried on in the ordinary and usual course both as regards
the nature, scope and manner of conducting the same and so
as to maintain the same as a going concern;
3.l.5 the Company and its subsidiaries have not entered into any
capital commitments or any transaction or agreement for the
disposal of any asset (including all forms of intellectual
and industrial property rights) or under which it has
incurred or shall incur (otherwise than in the ordinary and
usual course of carrying on its business) any liabilities
(including contingent liabilities) nor has it disposed of or
realised any material assets or any interest therein;
23
3.l.6 no resolutions have been (whether in general meeting or
otherwise) passed by the Company and its subsidiaries or any
class of their respective members;
3.l.7 nothing has been done in the conduct or management of the
affairs of the Company and its subsidiaries which would be
likely to prejudice the interests of the Purchaser as a
prospective purchaser of the Shares; and
3.l.8 no sum has been paid or voted to any director or employee
(or ex-director or ex-employee) of the Company and its
subsidiaries by way of remuneration or otherwise in excess
of the rates paid to him by the Company and its subsidiaries
at the Accounting Date and no new services agreements have
been made by the Company and its subsidiaries.
3.2 Since the Accounting Date the business of the Company and its
subsidiaries has not been adversely affected by the loss of or
material reduction in orders from any important customer or the loss
of or material reduction in any source of supply or by any abnormal
factor affecting similar businesses to a like extent and after making
due and careful enquiries none of the Vendors is aware of any facts
which are likely to give rise to any such adverse effect.
3.3 Since the Accounting Date there has been no material adverse change in
the financial position or trading prospects of the Company and its
subsidiaries nor is any such material change expected.
4. FINANCE
4.l Bank and other borrowings
4.l.l Full details of all limits on the Company's and its subsidiaries' bank
overdraft facilities have been accurately disclosed in the Disclosure
Letter to the Purchaser.
4.l.2 The total amount borrowed by the Company and its subsidiaries from its
bankers does not exceed its overdraft facilities.
4.l.3 The total amount borrowed by the Company and its subsidiaries (as
determined in accordance with the provisions of the relevant
instrument) does not exceed any limitation on its borrowing power
contained in its articles of association or in any debenture or other
deed or document binding upon it.
4.l.4 The Company and its subsidiaries have no outstanding loan capital, nor
has it agreed to create or issue any, or factored any of its debts nor
borrowed any money which it has not repaid save for borrowings not
exceeding the amounts shown in the Accounts.
4.l.5 The Company and its subsidiaries have not since the Accounting Date
repaid or become liable to repay any loan or indebtedness in advance
of its stated maturity.
4.2 Loans by and debts due to the Company and its subsidiaries
24
The Company and its subsidiaries have not lent any money (including
shareholders' loan) which has not been repaid to it, nor owns the
benefit of any debt (whether or not due for payment) other than debts
owing to it in the ordinary course of its business, and the Company
and its subsidiaries have not made any loan or quasi-loan contrary to
the relevant legislation.
4.3 Liabilities
There are no liabilities (including contingent liabilities) which are
outstanding on the part of the Company and its subsidiaries other than
those liabilities disclosed in the Accounts or incurred in the
ordinary and proper course of business since the Accounting Date.
4.4 Bank accounts
4.4.l A statement of the bank accounts of the Company and its subsidiaries
and of the credit or debit balances thereon as at a date not more than
seven days before the date of Completion has been supplied to the
Purchaser.
4.4.2 Since such statement there have been no payments out of any such
accounts except of payments in the ordinary course of business and the
balance on current accounts at the Completion Date shall not be
substantially different from the balances shown on such statement.
4.5 Working capital
Having regard to existing bank and other facilities the Company and
its subsidiaries have sufficient working capital for the purposes of
continuing to carry on its business in its present form and at the
increased levels of turnover contemplated herein following the
Completion Date and for the purposes of executing, carrying out and
fulfilling in accordance with their terms all orders, projects and
contractual obligations which are binding upon the Company and its
subsidiaries and remain outstanding.
4.6 Continuance of facilities
4.6.l In relation to debentures, acceptances, credits, overdrafts, loans or
other financial facilities outstanding or available to the Company and
its subsidiaries:-
4.6.l.l full details thereof and true and accurate copies of all
documents relating to such facilities have been disclosed in
the Disclosure Letter and the enclosures thereof; and
4.6.l.2 there has been no contravention of or non-compliance with
any provision of any such document.
4.7 Grants
4.7.l Full particulars have been disclosed of all grants, allowances, loans
or financial aids of any kind applied for or received or receivable by
the Company and its subsidiaries from any governmental department,
board, body or agency or any other supranational or national or local
authority body or agency.
4.7.2 No act or transaction has been effected or omitted in consequence of
which:-
25
4.7.2.l the Company or its subsidiaries is or may become liable to
refund wholly or partly any of the grants, allowances, loans
or aids referred to in clause 4.7.l; or
4.7.2.2 any application made by the Company and its subsidiaries for
the aforesaid grants, allowance, loans or aids shall be
rejected, deferred or not accepted in full.
5. TAXATION
5.l Provision for Taxation
The provision for Taxation in the Accounts shall be sufficient (on the
basis of the law as presently existing) to cover all Taxation assessed
or liable to be assessed on the Company and its subsidiaries or for
which the Company is, may be or may become accountable in respect of
profits, income, earnings, receipts, transfers, events and
transactions up to the Accounting Date.
5.2 Obligation to account
The Company and its subsidiaries has duly complied with its
obligations to account to the Commissioner of Inland Revenue and all
other authorities for all amounts for which it is or may become
accountable in respect of Taxation.
5.3 Returns and clearances
All returns in connection with Taxation that should have been made by
the Company and its subsidiaries have been made and have been made
correctly and on a proper basis making full disclosure of all matters
relevant to the assessment of the Company's and its subsidiaries'
liability to Taxation. No such return is likely to be disputed and
there are no facts known or which would on reasonable enquiry be known
to the Company and its subsidiaries, its Directors or the Vendors
which may give rise to any dispute or to any claim for any Taxation or
the deprivation of any relief or advantage that might have been
available to the Company and its subsidiaries under any relevant
legislation.
5.4 Disclosure
There are no assessments or charges to Taxation against the Company
and its subsidiaries which are the subject of any present dispute with
the relevant government tax authority or any relevant statutory
authority whether such amounts of Taxation have been paid or not and
regardless of which form such dispute is being or is to be heard.
6. ASSETS
6.l Ownership of Assets
6.l.l The Company and its subsidiaries were at the Accounting Date the owner
with good and marketable title of all the assets included in the
Accounts and now so owns and has in its possession and under its
control all such assets (save for current assets subsequently disposed
of in the ordinary course of its business). Save as disclosed in the
Disclosure Letter, all the existing assets and assets acquired by the
Company and its subsidiaries after the Accounting Date are free from
any charge, lien, encumbrance or equity and no other person has or
claims any rights in relation to any of such assets.
26
6.l.2 The fixed and loose plant, machinery, furniture, fixtures, fittings
and equipment, vehicles and other movable assets used in connection
with the business of the Company and its subsidiaries are in the
possession and control and are the sole and absolute property of the
Company and its subsidiaries free from any charge, lien, encumbrance,
hire purchase, leasing or rental agreement or agreement for payment on
deferred terms or xxxx of sale and are in good repair and condition
and satisfactory working order and comprise all assets necessary for
the continuation of the business of the Company and its subsidiaries
as carried on at the Completion Date.
6.2 Stocks
6.2.l The stocks of raw materials, packaging materials and finished goods
now held are not excessive and are adequate in relation to the current
business requirements of the business of the Company and its
subsidiaries and none of such stock is obsolete, unusable,
unmarketable or inappropriate or of limited value in relation to the
current business of the Company and its subsidiaries and no contracts
are outstanding which are likely to result in the foregoing not being
true.
6.2.2 The stock-in-trade of the Company and its subsidiaries are in good
condition and is capable of being sold by the Company and its
subsidiaries in the ordinary course of its business in accordance with
the current price list without rebate or allowance to a purchaser.
6.3 Retention of title
The Company and its subsidiaries have not purchased or agreed to
purchase any stock, goods, materials or assets on terms that property
therein does not pass until full payment is made or all indebtedness
discharged.
6.5 Insurance
6.5.1 The Company and its subsidiaries is fully covered by valid insurances
against all risks normally insured against by persons carrying on the
same business as that carried on by the Company and its subsidiaries
and in particular all assets are and have at all material times been
insured to the full replacement or reinstatement value thereof against
fire and such other risks as aforesaid and the Company is and has at
all material times been adequately covered against accident, damage,
injury, third party loss (including product liability), loss of
profits and other risks normally insured against by persons carrying
on the same business as that carried on by the Company and its
subsidiaries.
6.5.2 Full particulars have been disclosed of all such insurances and there
are no outstanding claims or circumstances likely to give rise to a
claim thereunder and nothing has been done or omitted to be done which
has made or could make any policy of insurance void or voidable or
whereby the premium is likely to be increased.
6.5.3 None of the policies are subject to any special or unusual terms or
restrictions or to the payment of any premium in excess of the normal
rate.
27
7. INTELLECTUAL PROPERTY
7.1 The Company and its subsidiaries are entitled to carry on its present
business in the manner in which it is presently carried on and such
business does not and is not likely to infringe or conflict with any
right (and in particular any industrial or intellectual property
right) of any other person.
7.2 All trademarks, patents, designs, business names, trade names,
copyright, know-how and other similar industrial, commercial or
intellectual rights used by the Company and its subsidiaries in
connection with its business have been disclosed in the Disclosure
Letter and are in the sole beneficial ownership of the Company and its
subsidiaries and to the extent to which the same are capable of
registration are registered in the name of the Company and its
subsidiaries as sole proprietor and are valid and enforceable and none
of them is being used, claimed, opposed or attacked by any other
person nor has anything been done or omitted whereby they or any of
them might cease to be valid and enforceable or used, claimed, opposed
or attacked as aforesaid.
7.3 No licence or other authority has been granted or agreed to be granted
by the Company and its subsidiaries to any person to use in any manner
or to do anything which would or might otherwise infringe any of the
rights referred to (specifically or in general terms) in clause 7.2
and the Company and its subsidiaries have not permitted to be
disclosed or agreed to disclose to any person other the Purchaser any
of its know-how, trade secrets, confidential information, technical
processes or lists of customers or suppliers.
7.4 All licences and authorities from any other person under which any of
the rights referred to (specifically or in general terms) in clause
7.2 are used by the Company and its subsidiaries and are in full force
and effect and the Vendors are not aware of any breach by the Company
and its subsidiaries of the terms and conditions of any such licence
or authority or of any circumstances whereby the same may be
prematurely terminated or rescinded.
7.5 There is no infringement of any Intellectual Property Rights in the
operation of any business of the Company and its subsidiaries and all
products and properties of the Company and its subsidiaries are not
subject to any third party's Intellectual Properties Rights.
8. COMMITMENTS AND CONTRACTS
8.1 The Company and its subsidiaries are not a party to or subject to any
liability (existing or contingent) under any contract or arrangement
not entered into in the ordinary and usual course of business or any
contract or arrangement of an unusual, onerous or long term nature or
which is not of an arms' length nature.
8.2 All contracts for the purchase by the Company and its subsidiaries of
raw materials, goods or services or for the supply of goods or
services by the Company and its subsidiaries are on a formal arms'
length basis.
8.3 All obligations of the Company and its subsidiaries to buy foreign
exchange are against known commitments to pay for stock to be imported
and paid for in foreign currency and any forward sales of foreign
currency by the Company are against known receipts of the currency to
be sold and the Company has no commitments in foreign exchange which
are not covered by a forward purchase or sale as appropriate of the
relevant currency.
8.4 The Company and its subsidiaries are not and have not agreed to become
bound by any debenture, guarantee or contract of indemnity or
suretyship and there is not now outstanding any guarantee or contract
for indemnity or suretyship given for the accommodation of or in
respect of any obligation on the part of the Company and its
subsidiaries.
28
8.5 The Company and its subsidiaries have not given any power of attorney
which remains in force.
8.6 The Company and its subsidiaries have not entered into or agreed to
enter not any selling, purchasing, manufacturing or licensing
agreement or arrangement or any agreement or arrangement which in any
way restricts the freedom of the Company and its subsidiaries to carry
on its business or any part thereof in any part of the world in such
manner as it thinks fit.
8.7 The Company and its subsidiaries do not owe any debts or other monies
to the Vendors or any of the Directors or any person connected with
the Vendors or the Directors or any of them respectively.
9. EMPLOYMENT
9.1 Employment and terms of employment
9.1.1 Full particulars of the identities, dates of commencement of
employment or appointments to office and terms and conditions of
employment of all the employees and officers of the Company and its
subsidiaries including without limitation profit sharing schemes or
commission or discretionary bonus arrangements have been fully and
accurately disclosed in the Disclosure Letter to the Purchaser.
9.1.2 There are no agreements or other arrangements whether or not legally
binding between the Company and its subsidiaries and any trade union
or other body representing its employees.
9.2 Bonus schemes
Save as disclose in the Disclosure Letter, there are no schemes in
operation by or in relation to the Company and its subsidiaries
whereunder any employee of the Company and its subsidiaries is
entitled to a commission or remuneration of any sort calculated by
reference to the whole or part of the turnover profits or sales of the
Company and its subsidiaries.
9.3 Changes in remuneration
9.3.1 Since the date of the Disclosure Letter:-
9.3.1.1 no change has been made in the rate of remuneration or the
emoluments or pension benefits of any officer, ex-officer or
senior executive of the Company and its subsidiaries (a
senior executive being a person in receipt of remuneration
in excess of HK$5,000.00 per annum);
9.3.1.2 no change has been made in the terms of employment of any
such officer or senior executive; and
29
9.3.1.3 no additional officers or senior executives have been
appointed.
9.3.2 The Company and its subsidiaries are not bound or accustomed to pay
any monies other than in respect of remuneration or emoluments of
employment or pension benefits to or for the benefit of any officer or
employee of the Company and its subsidiaries.
9.4 Termination of contracts of employment
9.4.1 All subsisting contracts of service to which the Company or its
subsidiaries is a party are determinable on 12 months' notice or less
without compensation.
9.4.2 No senior executive of the Company and its subsidiaries and no officer
of the Company and its subsidiaries has given or received notice
terminating his employment except as expressly contemplated in this
Agreement and no such executive or officer will be entitled to give
such notice as a result of the provisions of this Agreement.
9.5 Industrial disputes and employee claims
9.5.1 Neither the Company and its subsidiaries nor its employees are
involved in any industrial dispute and there are no facts known or
which should on reasonable enquiry be known to the Company, its
Directors or the Vendors which might suggest that there may be any
such industrial dispute or that any of the provisions of this
Agreement may lead to any such industrial dispute.
9.5.2 There is no outstanding claim against the Company and its subsidiaries
by any person who is now or has been an officer or employee of the
Company and its subsidiaries or any dispute between the Company and
its subsidiaries and a material number or class of its employees.
9.6 Redundancies
No employee of the Company and its subsidiaries shall become redundant
and be entitled to a redundancy payment as a result of any provision
of this Agreement.
9.7 Pensions
9.7.1 Other than required by the relevant legislations the Company and its
subsidiaries are not under any legal or moral liability or obligation
or a party to any ex-gratia arrangement or promise to pay pensions,
gratuities, superannuation allowances or the like to any of its past
or present officers or employees or their dependents.
9.7.2 Full particulars of the Company's and its subsidiaries' retirement
benefits scheme ("Scheme") have been disclosed in the Disclosure
Letter including without limitation true copies of the trust deeds and
the latest actuarial report and full and accurate particulars of the
assets funding arrangements, rules and current membership.
9.7.3 The assets, investments or policies held by the trustees of the Scheme
are sufficient to satisfy the liabilities and obligations (both
current and contingent) which the Scheme owes to its members at the
date hereof.
30
10. LITIGATION, DISPUTES AND WINDING-UP
10.1 Claims
There are no outstanding claims against the Company and its
subsidiaries in respect of defects in quality or delays in delivery or
completion of contracts or deficiencies design or performance of
equipment or otherwise relating to liability for goods or services
supplied or to be supplied by the Company and its subsidiaries and no
such claims are threatened or anticipated and the Company and its
subsidiaries have not given otherwise than in the ordinary course of
business any guarantee or warranty in relation to any goods or
services supplied or to be supplied by the Company and its
subsidiaries.
10.2 Litigation
10.2.1 The Company and its subsidiaries are not engaged in any litigation or
arbitration proceedings as plaintiff or defendant; there are no
proceedings pending or threatened either by or against the Company and
its subsidiaries and there are no circumstances which are or may be
likely to give rise to any litigation or arbitration.
10.2.2 There is no dispute with any revenue or other official department in
Shanghai or elsewhere in relation to the affairs of the Company and
its subsidiaries and there are no facts which may give rise to any
dispute.
10.2.3 No order has been made or petition presented or resolution passed for
the winding up of the Company and its subsidiaries nor has any
distress, execution or other process been levied in respect of the
Company and its subsidiaries which remains undischarged nor is there
any unfulfilled or unsatisfied judgement or court order outstanding
against the Company and its subsidiaries.
10.3 Compliance with legislation
10.3.1 Neither the Company nor its subsidiaries nor its officers, agents or
employees (during the course of their duties to the Company and its
subsidiaries) has committed or omitted to do any act or thing the
commission or omission of which is or could be in contravention of any
applicable laws and regulations (whether of Shanghai or elsewhere)
giving rise to any fine, penalty, default proceedings or other
liability on its part.
10.3.2 The Company and its subsidiaries has conducted and is conducting its
business in all respects in accordance with all applicable laws and
regulations whether of Shanghai or elsewhere.
10.4 Documents stamped
All documents which in any way affect the right, title or interest of
the Company and its subsidiaries in or to any of its property,
undertaking or assets or to which the Company or its subsidiaries is a
party and which attract stamp duty have been duly stamped within the
requisite period for stamping.
10.5 Business names
The Company and its subsidiaries do not use a name for any purpose
other than its full corporate name.
10.8 Powers of attorney and authorities
31
10.8.1 There are not in force any powers of attorney given by the Company and
its subsidiaries.
10.8.2 There are not outstanding any authorities whether express or implied
by which any person may enter into any contract (other than the
Agreement) or commitment to do anything on behalf of the Company and
its subsidiaries.
10.9 Licences and consents
10.9.1 The Company and its subsidiaries have obtained all necessary licences
and consents from any person, authority or body for the proper
operation of its business.
10.9.2 The Company and its subsidiaries are not in breach of any of the terms
or conditions of any such licences or consents which are all valid and
subsisting and there are no factors that might in any way prejudice
the continuation or renewal of any of them.
11. CAPITAL OF THE COMPANY
11.1 The authorised and issued share capital of the Company is as set out
in Schedule 1.
11.2 The issued capital has been fully paid.
11.3 There is not now any loan capital of the Company nor any agreement,
arrangement or option under which any person may now or at any time
hereafter call for the creation, allotment, issue, sale or transfer of
any loan or share capital of the Company or require to be put under
option any loan or share capital of the Company.
11.4 The Company:-
11.4.1 is not the holder or beneficial owner of and has not agreed
to acquire any share or loan capital of any other company or
corporation (whether incorporated in Shanghai or elsewhere);
and
11.4.2 has neither a branch outside Shanghai nor any permanent
establishment outside Shanghai.
12. OTHER OPERATIONS
12.1 The Company and its subsidiaries do not have and has never had any
interest in or agreed to enter into any partnership, consortium, joint
venture or similar arrangement with any other entity save as disclosed
in this Agreement.
13. RECITALS, SCHEDULES AND DISCLOSURES
The information and circumstances relating to the Company and its
subsidiaries which are known or ought on reasonable enquiry to be
known to the Vendors and which are material to be known by the
Purchaser have been accurately and completely disclosed in [the
Disclosure Letter and] the recitals to the Agreement the contents of
all the schedules and all matters disclosed in the Disclosure Letter
and other information relating to the Company given by the Vendors or
their accountants to the Purchaser are accurate and complete in every
respect and there is no fact or matter undisclosed which renders any
such matters or information untrue, incomplete or misleading.
32
14. EFFECT OF AGREEMENT
14.1 No person is entitled to receive from the Company and its subsidiaries
any finder's fee, brokerage or commission in connection with the sale
of the Shares to the Purchaser.
14.2 There are no contracts or arrangements (whether written or oral) to
which the Company and its subsidiaries are a party which shall by
their terms be determinable as a result of the provisions of this
Agreement or which shall or may be determined by performance or
Completion of this Agreement.
14.3 The execution and delivery of this Agreement and the fulfilment and
performance of the compliance with the terms thereof by the Vendors do
not and shall not:-
14.3.1 conflict with, violate or result in a breach by the Company
and its subsidiaries or the Vendors of the terms, provisions
or conditions of:-
14.3.1.1 any agreement,
14.3.1.2 any law, undertaking to or judgement order,
injunction or decree of any court, or
14.3.1.3 the memorandum and articles of association of the
Company and its subsidiaries;
14.3.2 relieve any person of any contractual or other obligation to
the Company and its subsidiaries or entitle any person to
terminate any such obligation;
14.3.3 terminate or make subject to termination or adversely affect
from the Company's and its subsidiaries' point of view the
enjoyment of any present or future benefit or privilege;
14.3.4 result in any customer or supplier of the Company and its
subsidiaries ceasing to deal or substantially reducing the
level of his dealings with the Company and its subsidiaries;
14.3.5 result in any indebtedness present or future of the Company
and its subsidiaries becoming due or capable of being
declared due and payable prior to the stated maturity date;
or
14.3.6 give rise to any contractual or other obligation of the
Company and its subsidiaries to any person or entitle any
person to require the performance of or compliance with any
existing contractual or other obligation of the Company and
its subsidiaries.
33
SCHEDULE 3
COMPLETION REQUIREMENTS
On the Completion Date, the Vendors and the Purchaser shall have the following
obligations:
1. Tax Deed of Indemnity
Each party to this Agreement shall cause to be executed the Tax Indemnity
Deed in substantially the form specified in Schedule 4.
2. Obligations of the Vendors
2.1 The Vendors shall hand to or to the order of the Purchaser the following:
(a) the statutory books and record duly made up to the Completion Date
and common seal(s) and chops of the Company and all its
subsidiaries;
(b) the written resignations of all the directors of the Company in
which the relevant director shall acknowledge that he/she has no
claim or right of action against the Company or any of it
subsidiaries for compensation for loss of office, termination of
employment or otherwise;
(c) the share certificates in respect of the Sales Shares and documents
to the reasonable satisfaction of the Purchaser evidencing that the
Company has been duly established under the BVI law and is wholly
owned by the Vendors;
(d) an assignment or other document in the agreed form duly signed by
the Vendors transferring the Intellectual Property Rights of the
Metastock Project to the Purchaser;
2.2 The Vendors shall procure that a board meeting of the Company be held at
which:
(a) it shall be resolved that the transfer of Sale Shares be approved as
the Purchaser may direct;
(b) nominees of the Purchaser be appointed as directors of the Company.
3. Obligations of the Purchaser
3.1 The Purchaser shall procure that a board meeting of the Purchaser be held
at which a resolution approving the allotment of the Consideration Shares
to the Vendors pursuant to the terms of this Agreement be passed.
3.2 The Purchaser shall deliver or cause to be delivered to the Vendors:
34
(a) the share certificates in respect of the Consideration Shares,
issued in the name of the Vendors or as it may direct in writing
prior to Completion and a certified true copy of the register of
members of the Purchaser showing the Vendors' ownership of the
Consideration Shares; and
(b) certified true copy of the written resolutions of the board of
directors and shareholders of the Purchaser (i) approving the
purchase of the Sale Shares, (ii) the issue and allotment of the
Consideration Shares and all terms in this Agreement and the
implementation thereof; and (iii) the appointment of one director
nominated by the Vendors to the board of directors of the Purchaser.
35
SCHEDULE 4
TAX INDEMNITY DEED
THIS DEED is made the 30th day of June, 2004.
BETWEEN
(l) HARTCOURT CHINA INC AND XX XXX XX XXXX (the "VENDORS"); and
(2) FIRST INFORMATION TECHNOLOGY LIMITED, a company incorporated in the
British Virgin Islands and whose registered office is P O Box 957,
Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands
and business address is 19/F., Wing Xx Xxxxx, Xx. 00 Xxx Xxxxx Xxxx
Xxxxxxx, Xxxx Xxxx (the "PURCHASER"); and
(3) Hopeful Internet Technologies Limited, a company incorporated in the
British Virgin Islands whose registered office is P O Box 957, Offshore
Incorporations Centre, Road Town, Tortola, British Virgin Islands and
business address is Suite B, 19/F., Ritz Plaza, 122 Austin Road,
Tsimshatsui, Hong Kong (the "COMPANY").
WHEREAS pursuant to an agreement for the sale and purchase of shares in the
Company dated June 29th, 2004, the Vendors and the Purchaser have today
completed the sale and purchase of all the issued shares of the Company in
reliance (inter alia) upon the undertaking of the Vendors to enter into
this deed and upon the indemnities by the Vendors hereinafter contained.
NOW THIS DEED made in pursuance of the aforesaid undertaking and in
consideration of the aforesaid purchase of shares WITNESSETH as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
"Accounts" means the audited management accounts of
the Company and its subsidiaries
comprising the balance sheet as at the
Management Accounting Date, the profit
and loss account for the twelve-month
period ended on the Management
Accounting Date and the notes thereto;
36
"Agreement" means the agreement for the sale and
purchase of the Sale Shares dated June
29th, 2004 under which the Vendors
agreed to sell and the Purchaser agreed
to purchase the entire share capital of
the Company;
"Claim for Taxation" includes:-
(1) any notice, demand, assessment
letter or other document issued or
action taken by or on behalf of
the relevant tax authorities in
the PRC or any other statutory or
governmental authority or body
whatsoever in any part of the
world whereby it appears that the
Company or its subsidiaries is or
may be liable to make any payment
of any Taxation whether or not the
same is primarily payable by the
Company or its subsidiaries and
whether or not the Company or its
subsidiaries has or may have any
right of reimbursement;
(2) the loss or counteracting or
clawing back of any Relief which
would otherwise have been
available to the Company or its
subsidiaries; and
(3) the nullifying or cancellation or
set-off of a right to repayment of
Taxation which would have been
available to the Company or its
subsidiaries;
"Completion" means the completion of the sale and
purchase of the Sale Shares pursuant to
the Agreement;
"Final Determination" in relation to a Claim for Taxation
where there is an appeal against that
assessment, means:-
(1) an agreement under section 64(3)
of the Inland Revenue Ordinance
(Cap. 112 of the Laws of Hong
Kong) or any legislative provision
corresponding to that section; or
(2) a decision of a court or tribunal
from which either no appeal lies
or in respect of which no appeal
is made within the prescribed time
limit;
"Indemnified Person" means the Purchaser and the Company, and
their respective successors and assigns;
"Liability to Taxation" means any liability to make a payment in
respect of Taxation;
37
"Management Accounting Date" Means 31st December 2003;
"Relief" includes any relief, allowance,
exemption, set-off or deduction in
computing or against profits, income or
gains of any description or from any
source or credit against Taxation;
"Sale Shares" means 2,179 shares of the Company
registered in the name of and legal and
beneficially owned by the Vendors which
have been or are to be sold to the
Purchaser pursuant to the Agreement; and
"Taxation" means and includes all forms of tax,
rate, levy, duty, charge, impost, fee,
deduction or withholding of any nature
now or hereafter imposed, levied,
collected, withheld or assessed by any
taxing or other authority in any part of
the world / the PRC and includes any
interest, additional tax, penalty or
other charge payable or claimed in
respect thereof.
1.2 Interpretation
In this Deed unless the context otherwise requires all expressions used in
the Agreement shall have the same meanings in this Deed and the
definitions and interpretation contained in the Agreement shall be deemed
to be incorporated herein.
1.3 Headings
The headings contained in this Deed are for convenience only and shall
have no legal effect nor shall they affect the construction and
interpretation of this Deed.
2. INDEMNITY
2.1 Subject as hereinafter provided the Vendors hereby jointly and severally
covenant with the Purchaser (for itself and for its successors and
assigns) and the Company (for itself and for its successors and assignors)
and as a separate covenant with the each of them that the Vendors and
their respective representatives will indemnify the Purchaser and the
Company and keep the Purchaser and the Company indemnified against any
loss arising from time to time from a Claim for Taxation which imposes or
seeks to impose on the Company or its subsidiaries and/or the Purchaser a
Liability to Taxation as a consequence of any one or more events occurring
on or before Completion and (without prejudice to the generality of the
foregoing) against:-
(a) the amount of any settlement of a Claim for Taxation;
38
(b) any depletion of or diminution in the net tangible assets or any increase
in the amount of the net liabilities of the Company or its subsidiaries or
any loss by the Company or its subsidiaries of any benefit or advantage
subsisting or which might reasonably have been supposed to subsist at
Completion and arising by reason of or in consequence of or in connection
with any Liability to Taxation;
(c) the costs and expenses from time to time reasonably and properly incurred
by the Company or its subsidiaries in relation to any demands, actions,
proceedings and claims in respect of Liability to Taxation or Claim for
Taxation; and
(d) estate duty in respect of the death (whether before or after) of any
person whereby a liability in respect of estate duty may fall on the
Company or its subsidiaries by reason of any transfer of property or other
circumstances occurring prior to or at Completion.
2.2 No delay or omission on the part of an Indemnified Person in the exercise
of any right, power or privilege hereunder shall impair such right, power
or privilege or be construed as a waiver thereof and any single or partial
exercise of any such right, power or privilege shall not preclude the
further exercise of that or any other right, power or privilege.
2.3 All sums payable by the Vendors to the Purchaser and/or the Company or its
subsidiaries and/or any of their respective successors or assigns
hereunder shall be paid insofar as is lawful free and clear of all
deductions and withholdings whatsoever and in the event that a deduction
or withholding is lawfully made the Vendors shall pay such greater sum
which after any lawful deduction or withholding therefrom results in a net
payment equal to the amount due under the indemnity provided for in Clause
2.1.
2.4 If a sum payable by the Vendors hereunder attracts a Liability to Taxation
(or would have done so but for the availability of some Relief) then the
Vendors shall pay such further amount so that the net receipts of the
Company or its subsidiaries after Taxation in respect of the payment shall
be as if the payment were not subject to Taxation in the hands of the
Company or its subsidiaries.
2.5 The Vendors shall be liable under the indemnity in Clause 2.1
notwithstanding any Reliefs, rights or repayment or other rights or claims
of a similar nature which may be available to any person entitled to the
benefit of such indemnity to set against or otherwise mitigate any
liability arising from any Claim for Taxation so that the indemnity in
Clause 2.1 shall take effect as though no such Reliefs, rights or
repayment or other rights or claims were available.
3. LIMITATION OF LIABILITY
3.1 The Vendors shall not incur liability under the indemnities hereinbefore
contained by reason of a Liability to Taxation or Claim for Taxation
imposed on the Company or its subsidiaries and/or the Purchaser:-
39
(a) to the extent that full provision or reserve in respect thereof was
specifically made in the Accounts;
(b) to the extent that the Liability to Taxation or Claim for Taxation arises
or is increased as a result only of any increase in rates of Taxation made
after Completion with retrospective effect;
(c) to the extent that the liability to make such payment would not have
arisen but for a voluntary act, transaction or omission carried out (other
than pursuant to a legally binding commitment created on or before
Completion) by the Company or its subsidiaries after Completion and
otherwise than in the ordinary course of business; and
(d) to the extent that the liability to make such payment is in respect of
Taxation for which the Company or its subsidiaries is primarily liable
arising as a result of transactions carried out by them in the ordinary
course of business after Completion.
4. NOTICE OF CLAIMS
If the Purchaser and/or the Company or its subsidiaries shall become aware
of any Claim for Taxation relevant for the purposes of this Deed it shall
as soon as reasonable and practicable give written notice thereof to the
Vendors and shall (if the Vendors shall indemnify and secure the Purchaser
and/or the Company or its subsidiaries as the case may be to their
reasonable satisfaction against all losses, costs, damages, charges and
expenses including interest, fines, penalties and interest on overdue tax
which may be incurred hereby) take such action and give such information
and assistance in connection with the affairs of the Company or its
subsidiaries as the Vendors may reasonably and promptly by written notice
request to avoid, resist, appeal or compromise such Claim for Taxation
PROVIDED THAT the Purchaser and the Company or its subsidiaries shall not
be obliged to appeal against any Claim for Taxation made on them if after
the Vendors have been given written notice of such claim pursuant hereto
they have not within 15 days thereafter received from the Vendors
instructions in writing to do so and PROVIDED FURTHER THAT in the final
event any action taken shall be at the discretion of the Purchaser or the
Company or its subsidiaries (as the case may be) and shall not interfere
with the ordinary course of their businesses and/or which in their
opinions is likely to prejudice their businesses and/or their
relationships with the relevant taxing, fiscal or other appropriate
authority.
5. ASSIGNMENT
The whole of or any part of the benefit of this Deed may be assigned by
the Purchaser or the Company to the extent that the indemnities given by
this Deed shall ensure to the benefit of such party's successors and
assigns.
40
6. NOTICES
6.1 Delivery
All notices, demands or other communications which are required to be
given under this Deed shall be in writing in English and sent to:
(a) in the case of the Vendors:
Address : Xxxxx X, 00/X, Xxxx Xxxxx,000 Xxxxxx
Xxxx Xxxxxxxxxxx, Xxxx Xxxx
Facsimile number : 8621-52138870
Attention : Mr. Xxxxx Xxxx
(b) in the case of the Purchaser:
First Information Technology Limited
Address : 19/F., Wing Xx Xxxxx, 00 Xxx Xxxxx Xxxx
Xxxxxxx Xxxx Xxxx
Facsimile number : (000) 0000-0000
Attention : Xx. Xxxxxxx Xxxxx
(c) in the case of the Company:
Address : 19/F., Wing Xx Xxxxx, 00 Xxx Xxxxx Xxxx
Xxxxxxx Xxxx Xxxx
Facsimile number : (000) 0000-0000
Attention : Xx. Xxxxxxx Xxxxx
or to such other address or facsimile number or marked for the attention
of such other person as the recipient may designate by notice given in
accordance with the provisions of this Clause 6.
6.2 Receipt
Any such notice may be delivered personally or by prepaid post or sent by
facsimile transmission and shall be deemed to have been effectively
served:
(a) on the day of receipt, where any personally delivered letter or
facsimile message is received on any Business Day before or during
normal working hours;
(b) on the following Business Day, where any personally delivered letter
or facsimile message is received either on any Business Day after
normal working hours or on any day which is not a Business Day;
(c) on the third Business Day following the day of posting, upon
despatch from within Hong Kong of any posted letter to the address
of a recipient in Hong Kong, unless actually received sooner; or
41
(d) on the seventh Business Day following the day of posting, upon
despatch from within Hong Kong of any posted letter to the address
of an overseas recipient (and vice-versa), unless actually received
sooner.
6.4 Nothing in this Clause 6 shall preclude the service of communication or
the proof of such service by any other mode permitted by law.
7. GOVERNING LAW
7.1 This Deed shall be governed by and construed in accordance with the laws
of Hong Kong.
7.2 Each party irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of Hong Kong and courts of appeal from them.
Each party waives any right it has to object to an action being brought in
those courts, to claim that the action has been brought in an inconvenient
forum, or to claim that those courts do not have jurisdiction.
8. PROCESS AGENT
8.1 The Vendors hereby irrevocably appoint First Shanghai Management Services
Limited of 19/F, Wing Xx Xxxxx, 00 Xxx Xxxxx Xxxx Xxxxxxx, Xxxx Xxxx as
its/his process agent to receive on its/his behalf service of process in
any proceedings in Hong Kong with respect to this Agreement. Service shall
be deemed completed on delivery to such process agent for Vendors (whether
or not such service is forwarded to or received by the Vendors).
8.2 The Company hereby irrevocably appoints First Shanghai Management Services
Limited of 19/F, Wing Xx Xxxxx, 00 Xxx Xxxxx Xxxx Xxxxxxx, Xxxx Xxxx as
its process agent to receive on its behalf service of process in any
proceedings in Hong Kong with respect to this Agreement. Service shall be
deemed completed on delivery to such process agent for the Company
(whether or not such service is forwarded to or received by the Company).
8.3 If for any reason the process agent for Vendors or the process agent for
the Company ceases or fails to act as process agent, the Vendors or the
Company (as the case may be) agree to appoint their respective substitute
process agent acceptable to other parties and to deliver to other parties
proof of the newly appointed process agent's acceptance of such
appointment within 7 calendar days.
IN WITNESS whereof this Deed has been duly executed the day and year first
before written.
42
The Vendors
-----------
SIGNED under seal by )
)
and SIGNED by )
for and on behalf of )
HARTCOURT CHINA INC )
in the presence of: )
Xx Xxx Xx Xxxx )
Passport No: )
SIGNED by )
in the presence of : )
The Purchaser
-------------
SIGNED by )
for and on behalf of )
FIRST INFORMATION TECHNOLOGY LIMITED )
in the presence of: )
The Company
-----------
SIGNED by )
for and on behalf of )
HOPEFUL INTERNET TECHNOLOGIES LIMITED )
in the presence of: )
43
SCHEDULE 5
----------
(PARTICULARS OF THE PURCHASER)
------------------------------
1. Name : First Information Technology Limited
2. Place of Incorporation : British Virgin Islands
3. Company Incorporation No : 324414
4. Date of Incorporation : 12th May 1999
5. Authorized Share Capital : US$50,000.00 divided
into 5,000,000 ordinary shares of US$0.01 each
6. Number of Issued Shares : 7,821 ordinary shares of US$0.01 each
7. Shareholder and number of Shares held : First Shanghai Investments
Limited held 7,821 ordinary
shares of US$0.01 each
44
