Exhibit 10.3
Execution Copy
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RESTRUCTURING AGREEMENT
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This RESTRUCTURING AGREEMENT ("Agreement") is executed on this 20/th/ day of
September, 2003
BETWEEN
(1) XXX.XXX LIMITED ("XXX"), a company incorporated in the Cayman Islands and
having its registered address at X.X. Xxx 000, Xxxxxx Xxxxx, Xxxxx Church
Street, Xxxxxx Town, Grand Cayman, Cayman Islands, British West Indies;
(2) XXX Online Inc. ("XXX Online"), a company incorporated in the Cayman
Islands and having its registered address at Xxxxxx House, X.X. Xxx 000,
Xxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx; and
(3) Rich Wealth Holdings Limited ("Rich Wealth"), a company incorporated in the
Cayman Islands and having its registered address at Scotia Centre, 4/th/
Floor, P.O. Box 2804, Xxxxxx Town, Grand Cayman, Cayman Islands.
WHEREAS
(A) Laurstinus Limited ("Laurstinus") is a company incorporated in the British
Virgin Islands and as at the date hereof has an authorised share capital of
US$50,000 divided into 50,000 shares of US$1.00 each ("Laurstinus Shares"),
of which 1 Laurstinus Share has been issued and is fully paid up and is
held by XXX.
(B) Lahiji Vale Limited ("Lahiji") is a company incorporated in the British
Virgin Islands and as at the date hereof has an authorised share capital of
US$50,000 divided into 50,000 shares of US$1.00 each ("Lahiji Shares"), of
which 1 Lahiji Share has been issued and is fully paid up and is held by
XXX.
(C) Advanced Internet Services Limited ("AIS") is a company incorporated in
Hong Kong and as at the date hereof has an authorised share capital of
US$100,000 divided into 10,000,000 shares of US$0.01 each ("AIS Shares")
and all the 10,000,000 AIS Shares have been issued and are fully paid up.
As at the date hereof, 9,999,999 AIS Shares are held by Rich Wealth and 1
AIS Share is held by a nominee on trust for Rich Wealth.
(D) XXX Online is a company incorporated in the Cayman Islands and as at the
date hereof has an authorised share capital of US$50,000 divided into
50,000 shares of US$1.00 each ("XXX Online Shares"), of which 1 XXX Online
Share has been issued and is fully paid up and is held by XXX.
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(E) The parties hereto are desirous of undergoing a restructuring exercise in
accordance with Clause 2 below ("Restructuring") whereby, inter alia,
Laurstinus and Lahiji will be transferred from being the direct
wholly-owned subsidiaries of XXX to being the direct wholly-owned
subsidiaries of XXX Online, and AIS will be transferred from being a direct
wholly-owned subsidiary of Rich Wealth to being a direct wholly-owned
subsidiary of XXX Online.
(F) Each of the parties hereto has delivered to the other parties on or before
the date hereof a certified copy of its board resolutions authorising such
party to enter into this Agreement and to perform the matters contemplated
hereto.
NOW IT IS HEREBY AGREED as follows:
1. RESTRUCTURING
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1.1 The parties hereto shall take all such actions within their powers to cause
the following transactions to be completed on 20/th/ September, 2003
("Completion Date"):
(a) (i) XXX shall transfer its entire shareholding in Laurstinus (the
"Laurstinus Assignment Share") to XXX Online.
(ii) The consideration for the assignment of the Laurstinus Assignment
Share shall be satisfied by the issue of 1 new XXX Online Share,
credited as fully paid, to XXX.
(b) (i) XXX shall transfer its entire shareholding in Lahiji (the "Lahiji
Assignment Share") to XXX Online.
(ii) The consideration for the assignment of the Lahiji Assignment
Share shall be satisfied by the issue of 1 new XXX Online Share,
credited as fully paid, to XXX.
(c) (i) Rich Wealth shall and procure its nominee to transfer the entire
shareholding in AIS (the "AIS Assignment Shares") to XXX Online
and its nominee.
(ii) The consideration for the assignment of the AIS Assignment Shares
shall be satisfied by the issue of 1 new XXX Online Share,
credited as fully paid, to XXX (as nominated by Rich Wealth).
1.2 As consideration for the assignment of the Laurstinus Assignment Share, the
Lahiji Assignment Share and the AIS Assignment Shares referred to Clause
1.1 above, XXX Online will issue and allot on the Completion Date a total
of 3 new XXX Online Shares, credited as fully paid, to XXX.
1.3 Save as otherwise set out in this Agreement, ownership and risk in each of
the Laurstinus Assignment Share, the Lahiji Assignment Share and the AIS
Assignment Shares shall pass to XXX Online with effect from Completion.
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2. COMPLETION
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2.1 Completion of the matters described in Clauses 1.1 and 1.2 above
("Completion") shall take place at 11:30 a.m. on the Completion Date at
00/xx/ Xxxxx, Xxx Xxxxxx, 00 Xxxxx'x Xxxx Xxxxxxx, Xxxxxxx, Xxxx Xxxx when
all (and not some only) of the events described in this Clause 2 shall
occur.
2.2 At Completion:
(a) XXX shall deliver to XXX Online:
(i) an instrument of transfer duly executed by XXX (including any
document, such as necessary waivers of pre-emption rights as may
be required to enable XXX Online to be registered as the holder
of each of the Laurustinus Assignment Share and the Lahiji
Assignment Share) in respect of each of the Laurstinus Assignment
Share and the Lahiji Assignment Share in favour of XXX Online;
and
(ii) the original share certificates in respect of the Laurstinus
Assignment Share and the Lahiji Assignment Share for
cancellation;
(b) Rich Wealth shall deliver to XXX Online:
(i) an instrument of transfer duly executed by each of Rich Wealth
and its nominee in respect of the AIS Assignment Shares
(including any document, such as necessary waivers of pre-emption
rights as may be required to enable XXX Online to be registered
as the holder of the AIS Assignment Share) in favour of XXX
Online and its nominee, respectively; and
(ii) the original share certificates in respect of such AIS Assignment
Shares for cancellation;
(c) XXX Online shall issue and allot a total of three (3) new XXX Online
Shares to XXX as set out in Clause 1.2 and shall deliver to XXX the
original share certificate(s) in respect of the allotment of such new
XXX Online Shares;
(d) a copy of a resolution of the board of directors of XXX Online
approving the registration of XXX as the registered owner of the new
XXX Online Shares referred to in Clause 1.2; and
(e) copies of resolutions of each of the board of directors of XXX and
Rich Wealth, authorizing the execution of and the performance by XXX
or Rich Wealth (as the case may be) of their obligations under this
Agreement and the transactions contemplated by it.
3. FURTHER ASSURANCE
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The parties hereto shall do and execute or procure to be done and executed
all such further acts, deeds, things and documents as may be necessary to
give effect to the Restructuring and the other terms of this Agreement.
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4. WARRANTIES
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4.1. XXX hereby warrants and represents to XXX Online that:
(a) it has power to enter into this Agreement and to fulfil (or procure
the fulfillment of) its obligations herein;
(b) it has and will at Completion have the right to sell and transfer full
legal and beneficial ownership in each of the Laurstinus Assignment
Share and the Lahiji Assignment Share to XXX Online pursuant to Clause
1.1(a) and (b) free and clear of any lien, pledge, charge or mortgage
encumbrance, interest or equity of any person (including any right to
acquire, option or right of pre-emption or conversion), assignment,
hypothecation, security interest, title retention or any other
security agreement or arrangement, any agreement to create any of the
above, or any other rights exercisable by third parties whatsoever;
and
(c) as at the date hereof and as at Completion, there is no outstanding
indebtedness or liability, including any guarantee or indemnity, owing
by Laurstinus or Lahiji to any party whatsoever.
4.2. Rich Wealth hereby warrants and represents to XXX Online that:
(a) it has power to enter into this Agreement and to fulfil (or procure
the fulfillment of) its obligations herein;
(b) it has and will at Completion have the right to sell and transfer full
legal and beneficial ownership in all of the AIS Assignment Shares to
XXX Online pursuant to Clause 1.1(c) free and clear of any lien,
pledge, charge, mortgage, encumbrance, interest or equity of any
person (including any right to acquire, option or right of pre-emption
or conversion), assignment, hypothecation, security interest, title
retention or any other security agreement or arrangement, any
agreement to create any of the above, or any other rights exercisable
by third parties whatsoever, and
(c) as at the date hereof and as at Completion, there is no outstanding
indebtedness or liability, including any guarantee or indemnity, owing
by AIS to any party whatsoever.
5. MISCELLANEOUS
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5.1 XXX Online shall bear all the costs and expenses (including the stamp duty
(if any) payable for the transfer to it of the Laurstinus Assignment Share,
the Lahiji Assignment Share and the AIS Assignment Shares and all fees and
charges incurred by the parties hereto) in connection with the preparation,
negotiation and entering into of this Agreement. In the event that
Completion does not occur for any reason whatsoever, each party hereto
shall pay its own legal costs associated with the negotiation and entering
into of this Agreement.
5.2 Each notice, demand or other communication given or made under this
Agreement shall be in writing and delivered or sent to the relevant party
at its address or fax
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number set out below (or such other address or fax number as the addressee
has by five (5) days' prior written notice specified to the other parties):
To XXX: XXX.XXX LIMITED
00/xx/ Xxxxx, Xxx Xxxxxx
00 Xxxxx'x Xxxx Xxxxxxx
Xxxxxxx
Xxxx Xxxx
Fax number: 0000 0000
Attention: The Company Secretary
To XXX Online: XXX Online Inc.
00/xx/ Xxxxx, Xxx Xxxxxx
00 Xxxxx'x Xxxx Xxxxxxx
Xxxxxxx
Xxxx Xxxx
Fax number: 0000 0000
Attention: The Company Secretary
To Rich Wealth: Rich Wealth Holdings Limited
00/xx/ Xxxxx, Xxx Xxxxxx
00 Xxxxx'x Xxxx Xxxxxxx
Xxxxxxx
Xxxx Xxxx
Fax number: 0000 0000
Attention: The Company Secretary
Any notice, demand or other communication so addressed to the relevant
party shall be deemed to have been delivered (a) if given or made by
letter, when actually delivered to the relevant address: and (b) if given
or made by fax, when dispatched.
5.3 No failure or delay by the parties hereto in exercising any right, power or
remedy under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of the same preclude any further exercise
thereof or the exercise of any other right, power or remedy. Without
limiting the foregoing, no waiver by any party to the Agreement of any
breach by the other party of any provision hereof shall be deemed to be a
waiver of any subsequent breach of that or any other provision hereof. If
at any time any provision of this Agreement is or becomes illegal, invalid
or unenforceable in any respect, the legality, validity and enforceability
of the remaining provisions of this Agreement shall not be affected or
impaired thereby.
5.4 This Agreement shall not be assignable without prior written consent of all
the parties hereto.
5.5 This Agreement (together with any documents referred to herein) constitutes
the whole agreement between the parties hereto and it is expressly declared
that no variations hereof shall be effective unless made in writing.
5.6 This Agreement may be signed in any number of counterparts, all of which
taken together shall constitute one and the same document.
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6. GOVERNING LAW AND JURISDICTION
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This Agreement shall be governed by and construed in accordance with the
laws of the Hong Kong Special Administrative Region and the parties hereto
irrevocably submit to the non-exclusive jurisdiction of the Hong Kong
courts.
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IN WITNESS whereof this Agreement is executed by the parties on the day and year
first above written.
SIGNED by )
for and on behalf of )
XXX.XXX LIMITED )
in the presence of:- )
SIGNED by )
for and on behalf of )
XXX ONLINE INC. )
in the presence of:- )
SIGNED by )
for and on behalf of )
RICH WEALTH HOLDINGS LIMITED )
in the presence of:- )
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