Exhibit 10.4
SHARE PURCHASE AGREEMENT
AGREEMENT made as of November 30, 1999
BETWEEN
CATHAYONLINE TECHNOLOGIES (HONG KONG) LIMITED of Suite 1103, Aon China
Building, 00 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx, a company duly
incorporated under the laws of Hong Kong Special Administrative Region
(the "Vendor");
AND
MOORGATE MANAGEMENT INC. of Vancouver, Canada, a company duly
incorporated under the laws of British Columbia, Canada (the
"Purchaser")
WHEREAS:
A. The Vendor is the sole beneficial owner of all the issued share capital
of China Lottery (Hong Kong) Limited;
B. China Lottery (Hong Kong) Limited is a company duly incorporated under
the laws of Hong Kong Special Administrative Region; and
C. China Lottery (Hong Kong) Limited beneficially owns certain lottery business
in China.
NOW THEREFORE in consideration of the mutual covenants in this Agreement and of
other consideration, the receipt and sufficiency of which are acknowledged, the
parties agree as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement,
"Business Day" means any day of the week other than a Saturday or
Sunday on which banks are open for business in HKSAR;
"Company" means China Lottery (Hong Kong) Limited, a company duly
incorporated under the laws of HKSAR;
"Effective Date" means January 31, 2000, or such other date as the
parties hereto agree;
"Effective Time" means 10:30 a.m. on the Effective Date or such other
time on the Effective Date as the parties hereto may agree;
"Encumbrance" means any encumbrance of any kind whatever, xxxxxx or
inchoate, and includes, without limitation, a security interest,
mortgage, lien, hypothec, pledge, hypothecation, charge, trust or
deemed trust, whether contractual, statutory or otherwise arising;
"HK$" means Hong Kong dollars;
"HKSAR" means Hong Kong Special Administrative Region;
"Person" includes an individual, corporation, partnership, joint
venture, trust, syndicate, unincorporated organization, the Crown or
any agency or instrumentality thereof or any other entity recognized by
law;
"Purchase Price" has the meaning ascribed thereto in Section 2.2;
"Purchased Shares" means all of the issued ordinary shares of the
Company beneficially owned by the Vendor as at the Effective Time,
being 2 ordinary shares of the Company of HK$1.00 each;
"US$" means United States dollars.
2. PURCHASE AND SALE OF SHARES
2.1 Purchase and Sale of Shares
Subject to the terms and conditions of this Agreement, the Vendor
hereby agrees to sell and transfer the Purchased Shares to the
Purchaser at the Effective Time on the Effective Date, free and clear
of all Encumbrances and the Purchaser agrees to purchase from the
Vendor the Purchased Shares.
2.2 Purchase Price
The purchase price (the "Purchase Price") for the Purchased Shares
shall be US$150,000. The Purchaser shall pay the Purchase Price by
cashier's order as provided in Section 3.1 or otherwise directed by the
Vendor.
3. SATISFACTION OF PURCHASE PRICE
3.1 Cashier's Order
In consideration of the transfer by the Vendor to the Purchaser of the
Purchased Shares, the Purchaser agrees to pay to the Vendor the
Purchase Price by means of a Cashier's Order drawn in favour of the
Vendor or in the form of other consideration acceptable to the Vendor.
The parties acknowledge that the Purchase Price of US$150,000
represents the fair value of the Purchased Shares as mutually agreed by
the parties hereto.
4. CONDITIONS PRECEDENT
4.1 Conditions for the Benefit of the Purchaser. The purchase and sale of
the Purchased Shares are subject to the following conditions to be
fulfilled or performed at or prior to the Effective Time, which
conditions are for the exclusive benefit of the Purchaser and may be
waived in whole or in part by the Purchaser in its sole discretion:
(a) Truth of Representations and Warranties. The representations
and warranties of the Vendor for the benefit of the Purchaser
contained in this Agreement shall be true and correct as at
the Effective Time with the same force and effect as if such
representations and warranties had been made on and as at such
time.
(b) Performance of Covenants. The Vendor shall have fulfilled or
complied with all covenants herein contained required to be
performed by them at or prior to the Effective Time.
(c) Consents and Authorizations. All relevant consents and
authorizations required (if any) in respect of the transaction
contemplated hereunder shall have been obtained on terms
acceptable to the Purchaser acting reasonably.
(d) Deliveries. The Vendor shall have delivered or caused to be
delivered to the Purchaser the following:
(i) instruments of transfers and sold notes in respect of
the Purchased Shares in favour of the Purchaser
and/or its nominee executed by the Vendor and/or its
nominee;
(ii) new share certificate representing the Purchased
Shares in the name of the Purchaser and/or its
nominee;
(iii) a cashier's order drawn in favour of the government
of HKSAR in the sum of HK$752.31 representing the
stamp duty payable on the sale of the Purchased
Shares by the Vendor;
(iv) certified copies of (i) all resolutions of the board
of directors of the Vendor approving the entering
into of this Agreement and the completion of all
transactions contemplated hereunder; and (ii) all
other instruments evidencing necessary corporate
action of the Vendor, if any, with respect to such
matters; and,
(v) the completion by the Purchaser prior to the
Effective Date of such due diligence investigations
as the Purchaser or its advisors, accountants and
solicitors deem appropriate and the results thereof
being to the satisfaction of the Purchaser, as the
Purchaser in its sole desirability may determine.
4.2 Conditions for the Benefit of the Vendor. The purchase and sale of the
Purchased Shares are subject to the following conditions to be
fulfilled or performed at or prior to the Effective Time, which
conditions are for the exclusive benefit of the Vendor and may be
waived by the Vendor in its sole discretion:
(a) Truth of Representations and Warranties. The representations
and warranties of the Purchaser for the benefit of the Vendor
contained in this Agreement shall be true and correct as at
the Effective Time with the same force and effect as if such
representations and warranties had been made on and as at such
time.
(b) Performance of Covenants. The Purchaser shall have fulfilled
or complied with all covenants herein contained required to be
performed by it at or prior to the Effective Time.
(c) Consents and Authorizations. All relevant consents and
authorizations required (if any) in respect of the transaction
contemplated hereunder shall have been obtained on terms
acceptable to the Vendor acting reasonably.
(d) Deliveries. The Purchaser shall have delivered to the Vendor
the following:
(i) a cashier's order drawn in favour of the Vendor in
the sum of US$150,000 representing the Purchase Price
or other equal consideration; and
(ii) certified copies of (i) all resolutions of the board
of directors of the Purchaser approving the entering
into of this Agreement and the completion of all
transactions contemplated hereunder; and (ii) all
other instruments evidencing necessary corporate
action of the Purchaser, if any, with respect to such
matters.
4.3 The Vendor will cause a meeting of the board of directors of the
Company to be held at which resolutions shall be passed to:
(a) approve and register (subject to stamping) the transfer of the
Purchased Shares and to issue new share certificate for the
Purchased Shares in the name of the Purchaser;
(b) authorize such other matters as reasonably requested by the
Purchaser to give effect to the transactions herein
contemplated; and,
(c) the Vendor covenants to make available to the Purchaser all
data and information that it has relating to the Company and
its business or officers.
5. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of the Vendor
The Vendor represents and warrants to the Purchaser that :
(a) it is a corporation duly incorporated, organized and validly
subsisting under the laws of HKSAR;
(b) it has the corporate power and capacity to, and has taken all
corporate action necessary to, enter into, execute, deliver
and perform its obligations under this Agreement;
(c) it is the sole beneficial owner of the Purchased Shares and
the Purchaser shall acquire from it good title to the
Purchased Shares free and clear of all Encumbrances;
(d) this Agreement constitutes a valid and binding obligation
enforceable against it in accordance with its terms, provided
that enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other laws,
whether or not similar, generally affecting enforceability of
creditors' rights and that equitable remedies such as specific
performance and injunctive relief are in the discretion of the
court from which they are sought;
(e) no Person other than the Purchaser has any agreement, option,
claim or right of any kind capable of becoming an agreement
for the transfer to that Person of any of the Purchased Shares
or any other security of the Company; and
(f) the authorized capital of the Company consists of HK$10,000
divided into 10,000 ordinary shares of HK$1.00 each, of which
only the Purchased Shares have been duly issued and are
outstanding as fully paid shares.
5.2 Representations and Warranties of the Purchaser
The Purchaser represents and warrants to the Vendor that :
(a) the Purchaser is a corporation duly incorporated, organized
and validly subsisting under the laws of Nevada, the United
States of America;
(b) the Purchaser has the corporate power and capacity to, and has
taken all corporate power and capacity to, and has taken all
corporate action necessary to, enter into, execute, deliver
and perform its obligations under this Agreement; and
(c) this Agreement constitutes a valid and binding obligation of
the Purchaser enforceable against it in accordance with its
terms, provided that enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and
other laws, whether or not similar, generally affecting
enforceability of creditors' rights and that equitable
remedies such as specific performance and injunctive relief
are in the discretion of the court from which they are sought.
5.3 Survival
The representations and warranties set forth in Sections 5.1 and 5.2
shall survive the sale and transfer of the Purchased Shares for a
period of 1 year after the date hereof. No claim in respect of any
misrepresentation or breach of warranty hereunder shall be made by any
party more than 1 year after the date hereof.
6. General
6.1 Notice
Any notice, demand or other communication (in this section, a "notice")
required or permitted to be given or made hereunder shall be in writing
and shall be sufficiently given or made if :
(a) delivered in person (including by commercial courier) during
normal business hours on a Business Day and left with a
receptionist or other responsible employee of the relevant
party at the applicable address set forth below;
(b) sent by prepaid first class mail; or
(c) sent by any electronic means of sending messages, including
telex or facsimile transmission which produces a paper record
("Electronic Transmission"), during normal business hours on a
Business Day charges prepaid and confirmed by prepaid first
class mail;
addressed
(a) in the case of a notice to the Vendor, to it at :
CathayOnline Inc.
Suite 1000, 0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
X.X.X. 00000
Attention : President
Fax: 0-000-000-0000
And copied to:
Xxxxxxxx, Xxxxxxx
Xxxxx 0000 Xxx Xxxxx Building
00 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Attention: Mr. Guanxi Zheng
Fax: (000) 0000-0000
(b) and in the case of a notice to the Purchaser, to it at :
Moorgate Management Inc.
Xxxxx 000 - 000 Xxxxxxxxx Xx.
Xxxxxxxxx, X.X.
Xxxxxx X0X 0X0
Attention : President
Fax:
Each notice sent in accordance with this section shall be deemed to
have been received:
(a) on the day it was delivered;
(b) on the third Business Day after it was mailed (excluding each
Business Day during which there existed any general or
rotating interruption of postal services due to strike,
lockout or other cause); or
(c) on the same day that it was sent by Electronic Transmission,
or on the first Business Day thereafter if the day on which it
was sent by Electronic Transmission was not a Business Day.
The Vendor or the Purchaser may change its address for notice by
notifying the other party of such changes.
6.2 Further Assurances
The Vendor and the Purchaser shall do such acts and execute such
further documents, conveyances, deeds, assignments, transfers and the
like, and will cause the doing of such acts and the execution of such
further documents as are within their power, as either the Vendor or
the Purchaser may in writing at any time and from time to time
reasonably request be done or executed, in order to give full effect to
the provisions of this Agreement.
6.3 Costs and Expenses
(a) Each party shall pay its own costs and expenses in relation to
the negotiations leading up to the sale and purchase of the
Purchased Shares and to the preparation and execution of this
Agreement If for any reason the sale and purchase of the
Purchased Shares does not complete, each party shall be
responsible for its own costs only.
(b) The Vendor shall pay all stamp duty on the sale of the Purchased Shares.
(c) The Purchaser shall pay all stamp duty on the purchase of the Purchased
Shares.
6.4 Time of Essence
Time shall be of the essence of each provision of this Agreement.
6.5 Number
Words expressed in the singular include the plural and vice-versa,
except when the context clearly indicates to the contrary.
6.6 Headings
The division of this Agreement into articles and sections and the
insertion of headings are for convenience of reference only and shall
not affect the construction or interpretation of this Agreement. The
article and section headings in this Agreement are not intended to be
full or precise descriptions of the text to which they refer and shall
not be considered part of this Agreement.
6.7 Governing Law and Jurisdiction
(a) This Agreement shall be governed by, and construed and
enforced in accordance with, the laws in force in the HKSAR.
Each party irrevocably submits to the non-exclusive
jurisdiction of the courts of HKSAR with respect to any matter
arising hereunder or related hereto.
(b) The Purchaser irrevocably appoints ____________________ as its
agent to receive and acknowledge on its behalf service of any
writ, summons, order, judgment or other notice of legal
process in HKSAR in connection with or arising out of this
Agreement. If for any reason the aforementioned agent of the
Purchaser no longer services as agent of the Purchaser, the
Purchaser shall promptly appoint a successor agent in HKSAR
and notify the Vendor accordingly, provided that until the
Vendor receive such notification of change of agent, it shall
be entitled to treat the aforementioned agent as the agent of
the Purchaser.
(c) Each of the parties have agrees that any legal process in
connection with or arising out of this Agreement shall be
sufficiently served on it if delivered to the Vendor at the
abovementioned address or to the Purchaser's agent at such
agent's address for the time being in HKSAR whether or not
such agent gives notice thereof to the Purchaser.
6.8 Counterparts
This Agreement may be executed in any number of counterparts. Each
executed counterpart shall be deemed to be an original. All executed
counterparts taken together shall constitute one agreement.
6.9 Successors and Assigns
This Agreement shall enure to the benefit of and be binding upon the
Vendor and its successors and assigns and upon the Purchaser and its
successors and assigns. The successors of either party include its
successors by amalgamation The Purchaser shall be entitled to assign
this Agreement without the consent of the Vendor, and upon notice to
the Vendor such assignment, the Purchaser shall be deemed to be
relieved of all obligations hereunder.
IN WITNESS WHEREOF the parties have executed this Agreement.
CATHAYONLINE TECHNOLOGIES (HONG
KONG) LIMITED
by :
Name :
Title :
by :
Name :
Title :
MOORGATE MANAGEMENT INC.
by :
Name :
Title :
by :
Name :
Title:
