EXHIBIT B
SHARE PURCHASE AGREEMENT
between
Pacific Electric Wire & Cable Co., Ltd
as Vendor
and
ASSET MANAGERS CO., LTD
as Purchaser
and
XX. XXXX-XXXX YUAN
MR. XXXXX XXX-XXXX SUN
as Guarantors
relating to
the sale and purchase of 10,074,102 shares of US$0.01 each in and representing
approximately 72.84 per cent. of the issued share capital of Asia Pacific Wire &
Cable Corporation Limited
[Xxxxxxx & Xxxxxxx Logo Omitted]
35th Floor Xxxxxx Kong Center 0 Xxxxx'x Xxxx Xxxxxxx Xxxx Xxxx
T (000) 0000 0000 F (000) 0000 0000 DX009121 Central 1
CONTENTS
1. Interpretation...........................................................1
2. Sale of Shares...........................................................5
3. Purchase Price...........................................................5
4. Conditions precedent.....................................................6
5. Pre-completion obligations...............................................7
6. Completion..............................................................10
7. Exclusivity.............................................................11
8. Vendor's Warranties.....................................................12
9. Undertakings............................................................13
10. Guarantee by the Guarantors.............................................15
11. Confidentiality.........................................................16
12. Announcements...........................................................17
13. Termination.............................................................18
14. Miscellaneous...........................................................19
15. Law and Jurisdiction....................................................22
SCHEDULE 1: THE COMPANY AND ITS SUBSIDIARIES.................................25
Part 1.......................................................................25
Part 2.......................................................................29
Part 3.......................................................................69
GROUP CHART..................................................................69
SCHEDULE 2: VENDOR'S WARRANTIES..............................................70
SCHEDULE 3: TAX.............................................................95
SCHEDULE 4: PARTICULARS OF PREMISE..........................................98
SCHEDULE 5: GUARANTORS.......................................................99
Agreed Form.................................................................100
ANNEXURE A..................................................................101
ANNEXURE B..................................................................102
ANNEXURE C..................................................................103
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THIS AGREEMENT is made on 10 September 2004
BETWEEN:
(1) PACIFIC ELECTRIC WIRE & CABLE CO., LTD (the "VENDOR"), a company
incorporated in the Republic of China and having its registered office
at 26th Floor, No. 95, Xxxxxxx 0, Xxxxxx Xxxxx Xxxx, Xxxxxx 000,
Xxxxxx;
(2) ASSET MANAGERS CO., LTD, (the "PURCHASER"), a company incorporated in
Japan and having its registered office at The Imperial Hotel Tower,
17th Floor, 0-0-0, Xxxx-xxxxxxxxx, Xxxxxxx-xx, Xxxxx 000-0000, Xxxxx;
and
(3) THE PERSONS, (the "GUARANTORS"), whose names and addresses are set out
in Schedule 5.
RECITALS:
(A) The Company is a company incorporated in Bermuda the Shares of which
are quoted on the OTC Bulletin Board in the United States. Particulars
of the Company are set out in Part 1 of Schedule 1.
(B) The Vendor was the legal and beneficial owner of the Sale Shares (as
defined below) and Set Top, is the legal and beneficial owner of the
Sale Shares. The Vendor wishes to sell and, in reliance upon (inter
alia) the representations, warranties and undertakings set out in this
Agreement, the Purchaser wishes to purchase the Sale Shares on the
terms of, and subject to, the terms and conditions set out in this
Agreement. The Sale Shares represent approximately 72.84 per cent. of
the entire issued share capital of the Company.
(C) Pursuant to the Settlement Agreement, Set Top and the Vendor has
agreed, inter alia, that if the Vendor pays the sum of US$25 million to
Set Top on or before 30 September 2004, Set Top will transfer the Sale
Shares to the Vendor so that the Vendor owns the legal and beneficial
titles to the Sale Shares.
(D) It is anticipated that the transfer of the Sale Shares from Set Top to
the Vendor will take place simultaneously with Completion of this
Agreement and the Sale Shares will be transferred free of Encumbrances
from Set Top to the Purchaser directly on Completion.
THE PARTIES AGREE THAT:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the context requires otherwise :
"Affiliate" means, in relation to a company, the connected persons (as
defined in the Rules Governing the Listing of Securities on The Stock
Exchange of Hong Kong Limited) of such company and the associates (as
defined in the Rules Governing the Listing of Securities
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on The Stock Exchange of Hong Kong Limited) of each of such company and
connected persons.
"Agreed Form" means, in relation to any document, a document in a form
agreed by the Vendor and the Purchaser and initialled by or on behalf
of each of them for identification.
"Agreement" means this agreement as amended, modified, varied or
supplemented in writing by the parties hereto from time to time.
"Associate" means an "associate" as such term is defined in the Listing
Rules.
"Associated Company" means any company in which the Company or the
Subsidiaries hold at least 20% of the shareholding, equity interest or
voting rights.
"Audited Accounts" means the audited consolidated balance sheet of the
Group made up as at the Balance Sheet Date and the audited consolidated
profit and loss account of the Group in respect of the previous three
financial years ended on the Balance Sheet Date including, in each
case, the notes thereto and the directors' report and auditors' report.
"Balance Sheet Date" means 31 December 2003.
"Business Day" means a day on which banks are generally open for
ordinary banking business in Hong Kong (other than a Saturday or Sunday
or any day on which a tropical cyclone warning no. 8 or above is
hoisted or remains hoisted between 9:00 a.m. and 12:00 noon and is not
lowered at or before 12:00 noon or on which a "black" rainstorm warning
is hoisted or remains in effect between 9:00 a.m. and 12:00 noon and is
not discontinued at or before 12:00 noon).
"Companies Ordinance" means the Companies Ordinance (Chapter 32 of the
Laws of Hong Kong).
"Company" means Asia Pacific Wire & Cable Corporation Limited, a
company incorporated in Bermuda, further particulars of which are set
out in Part 1 of Schedule 1.
"Completion" means completion of the sale and purchase of the Sale
Shares in accordance with clause 6.
"Completion Date" means the date following three Business Day(s) after
the date upon which the last of the Conditions (except Conditions (D)
and (E) in Clause 4.1)shall have been satisfied or waived or such later
time and/or date as the parties hereto may agree in writing Provided
that such date shall not be later than 30 September 2004.
"Conditions" means the conditions precedent set out in clause 4.1.
"Consents" includes any licence, consent, approval, authorisation,
permission, waiver, order or exemption.
"Consideration" means US$26 million in cash.
"Deed of Indemnity" means the deed of indemnity in relation to Tax and
others in the Agreed Form to be executed at Completion.
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"Directors" means in relation to the Company or any of the
Subsidiaries, its directors from time to time.
"Encumbrance" includes any interest or equity of any third party
(including any right to acquire, option or right of pre-emption); any
mortgage, charge, pledge, lien, assignment, hypothecation, security
interest (including any created by law), title retention or other
security agreement or arrangement; and any rental, hire purchase,
credit or conditional sale or other agreement for payment on deferred
terms; and "Encumber" shall be construed accordingly.
"Escrow Agent" means such escrow agent to be agreed by the Vendor and
the Purchaser.
"Escrow Agreement" means the escrow agreement to be entered into
between the Escrow Agent, the Vendor and the Purchaser in a form to be
agreed.
"Group" means the Company and the Subsidiaries.
"Group Company" or "members of the Group" means a company in the Group.
"HK$" means Hong Kong dollars, the lawful currency of Hong Kong.
"Hong Kong" means the Hong Kong Special Administrative Region of the
People's Republic of China.
"Interim Accounts" means the unaudited interim accounts of the Company
and the Subsidiaries for the period of six months ending on 30 June
2004, a copy of which is annexed to this Agreement as Annexure "C".
"Law" or "Laws" includes all applicable legislation, statutes,
directives, regulations, judgements, decisions, decrees, orders,
instruments, by-laws and other legislative measures or decisions having
the force of law, treaties, conventions and other agreements between
states, or between states or other supranational bodies, rules of
common law, customary law and equity and all civil or other codes and
all other laws of, or having effect in, any jurisdiction from time to
time and whether before or after the date of this Agreement.
"Listing Rules" means the Rules Governing the Listing of Securities on
The Stock Exchange of Hong Kong Limited.
"Option Agreement" means the option agreement in the Agreed Form to be
entered into between the Vendor and the Purchaser (or as it may direct)
at Completion.
"Material Adverse Change" means any change (or effect), the consequence
of which is to materially and adversely affect the condition (financial
or otherwise), business, property, earnings, results of operations,
prospects and/or assets of the Group as a whole and/or any member of
the Group individually.
"Premises" means the land and premises of the Group particulars of
which are set out in Schedule 4.
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"Purchaser's Solicitors" means Xxxxxxx and Xxxxxxx of 35th Floor,
Xxxxxx Kong Center, 0 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx.
"Sale Shares" means 10,074,102 Shares, representing approximately
72.84% of the entire issued share capital of the Company.
"Shares" means shares of US$0.01 each in the capital of the Company.
"Set Top" means Set Top International, Inc., a company incorporated in
the British Virgin Islands and having its principal place of business
at 0xx Xxxxx, 00, Xxxx Xx Xxxx, Xxxxxxx 0, Xxxxxx, Xxxxxx, which owns
the legal and beneficial title of the Sale Shares as at the date
hereof.
"Settlement Agreement" means the settlement agreement dated 2 July 2004
entered into between the Vendor and Set Top, a copy of which is annexed
to this Agreement as Annexure "A".
"Subsidiaries" means the companies details of which are set out in Part
2 of Schedule 1 and "Subsidiary" means any one of them.
"subsidiary" or "holding company" shall have the meaning ascribed to
them respectively in section 2 of the Companies Ordinance.
"Tax" means all forms or taxation, duties, levies, and imposts whether
of Hong Kong or any other jurisdiction including (without limitation)
corporation tax, including instalment payments in respect of
corporation tax, stamp duty, income tax, capital gains tax, duties of
excise, customs and other import duties, inheritance tax, capital
duties and any payment whatsoever which the relevant company may be or
become bound to make to any person as a result of the operation of any
enactment relating to any such taxes or duties and all penalties,
fines, charges and interest relating to any of the foregoing or
resulting from a failure to comply with the provisions of any enactment
relating to taxation.
"Transaction Documents" means the Deed of Indemnity, the Escrow
Agreement and the Option Agreement.
"US$" means US dollars, the lawful currency of the United States of
America.
"Vendor's Group" means the Vendor and each of its Affiliates other than
the Group.
"Vendor's Warranties" means the warranties and representations set out
in Schedules 2 and 3 and clause 8.
1.2 CONSTRUCTION OF CERTAIN REFERENCES
In this Agreement, where the context admits:
(A) a reference to any statue or statutory provision shall be
construed as a reference to the same as it may have been, or
may from time to time be, amended, modified or re-enacted;
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(B) references to clauses and schedules are references to clauses
of and schedules to this Agreement, references to paragraphs
are, unless otherwise stated, references to paragraphs of the
clause or schedule in which the reference appears and
references to this Agreement include the schedules;
(C) references to the singular shall include the plural and vice
versa and references to one gender shall include all other
genders;
(D) where any statement is to the effect that the Vendor is not
aware of any matter or circumstance, or is a statement
qualified by the expression "so far as the Vendor is aware" or
"to the best of the Vendor's knowledge and belief" or any
similar expression, that statement shall be deemed to include
an additional statement that it has been made after due and
careful enquiry and the same shall apply in relation to such
statements as to the awareness or knowledge of any other
person;
(E) "person" includes any individual, partnership, body corporate,
corporation sole or aggregate, state or agency of a state, and
any unincorporated association or organisation, in each case
whether or not having separate legal personality;
(F) "company" includes any body corporate;
(G) references to times of the day are to Hong Kong time; and
(H) except as otherwise expressly provided, words and expressions
defined in the Companies Ordinance as at the date hereof have
the same meanings when used in this Agreement.
1.3 HEADINGS
The headings and sub-headings are inserted for convenience only and
shall not affect the construction of this Agreement.
1.4 SCHEDULES
Each of the schedules shall have effect as if set out herein.
2. SALE OF SHARES
2.1 SALE AND PURCHASE
In accordance with the terms and subject to the conditions of this
Agreement, the Vendor shall sell (or procure the sale of) and the
Purchaser shall purchase (or procure the purchase of), the Sale Shares,
absolutely free from all Encumbrances and together with all rights now
or hereafter attaching thereto including, but without limitation, the
right to receive all dividends and distributions declared, made or paid
on or after the date of this Agreement.
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2.2 NO SALE OF PART ONLY
The Purchaser shall not be obliged to complete the purchase of any of
the Sale Shares unless the sale and purchase of all of the Sale Shares
is completed simultaneously in accordance with this Agreement.
3. PURCHASE PRICE
3.1 AMOUNT
The Consideration payable to the Vendor by the Purchaser on Completion
shall be US$26 million in cash. The Consideration shall be paid by the
Purchaser in accordance with the provisions of Clause 6.3.
4. CONDITIONS PRECEDENT
4.1 CONDITIONS
Subject to clause 8.4, Completion is conditional upon the following
conditions having been fulfilled and remaining fulfilled at all times
until Completion:
(A) the obtaining of approval of the Bermuda Monetary Authority on
the transfer of the Sale Shares or any other transactions
contemplated under this Agreement, if required;
(B) the obtaining of all Consents as shall be necessary or
applicable in relation to the transactions contemplated by
this Agreement;
(C) the obtaining of legal opinions from Bermudan, Taiwanese and
US legal counsels on such terms and forms satisfactory to the
Purchaser;
(D) the Option Agreement being signed contemporaneously at
Completion;
(E) completion of the transfer of the Sale Shares anticipated
under Recitals (C) and (D) taking place and Set Top transfers
the legal and beneficial title of the Sale Shares to the
Purchaser directly upon Completion of this Agreement;
(F) receipt by the Purchaser of the letter from Ernst & Young to
the Company with confirmations on the Review Report and
Consolidated Interim Financial Statements for the three-month
and six-month periods ended 30 June 2004 for Charoong Thai
Wire and Cable Public Company Limited and its subsidiaries in
the form attached in Annexure "B"; and an assignment of the
rights and benefits under such letter entered into by the
Company in favour of the Purchaser; and
(G) if applicable, the existing escrow agreement dated 2 July 2004
entered into by Set Top, the Vendor, Mr. K.J. Maa and the
Company be cancelled by agreement in writing of such parties.
In the event that all the Conditions shall not have been satisfied or
waived by the Purchaser on or before 15 September 2004 or such other
date as the Purchaser may agree, this Agreement shall lapse and no
party hereto shall have or make any claim
6
against the other in respect hereof except for Clauses 11, 12, 14.8 and
15 and save for any antecedent breach (including any breach of clause
4.2 or 4.3).
4.2 SATISFACTION
Each of the Vendor and the Guarantors shall procure the satisfaction of
the Conditions set out in clause 4.1 and shall notify the Purchaser in
writing immediately upon the satisfaction of each of the Conditions.
4.3 CO-OPERATION
Each of the Vendor and the Guarantors shall and shall procure each
Group Company to procure the satisfaction of the Conditions and to
provide all information and assistance to or otherwise co-operate with
the Purchaser as required by the Purchaser in connection with the
satisfaction of the Conditions set out in clause 4.1.
4.4 DISCLOSURE OF DIFFICULTIES IN SATISFYING CONDITIONS
Should any of the Vendor or the Guarantors becomes aware of any matter
which will or may prevent or delay any of the Conditions from being
satisfied, it shall forthwith disclose in writing the same to the other
and the Purchaser.
4.5 WAIVER
The Purchaser may waive in whole or in part all or any of the
Conditions set out in clause 4.1 in its sole and absolute discretion.
5. PRE-COMPLETION OBLIGATIONS
5.1 PURCHASER'S RIGHT OF ACCESS
The Purchaser and its appointed representatives, professional advisers
and agents (the "Purchaser's Representatives") shall from the date
hereof up to the Completion Date have the right at any time to visit
the premises of the Group to carry out a review and due diligence
investigation of the legal, financial, business and other matters of
the Group, including but not limited to, the assets, liabilities,
financial, condition, contracts, operations, books and records,
commitments, business and prospects of the Group. In order to
facilitate such review, at any time prior to the Completion Date, the
Vendor shall and shall procure each member of the Group to provide to
the Purchaser and the Purchaser's Representatives with all documents
and information which they may request in connection with such due
diligence investigation. The Purchaser shall be entitled to have full
access to the management, consultants, accountants and advisers of the
Group for the purposes set out in this clause.
5.2 NO ACTS OR OMISSIONS CONTRARY TO THE VENDOR'S WARRANTIES
The Vendor shall procure that (save only as may be necessary to give
effect to this Agreement and only then with the prior written approval
of the Purchaser) neither the Vendor nor any member of the Vendor's
Group nor any member of the Group shall do, allow or procure any act or
omission before Completion which would constitute a breach of any of
the Vendor's Warranties if they were given at any and all times from
the date hereof
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up to Completion or which would make any of the Vendor's Warranties
inaccurate or misleading if they were so given.
5.3 CONDUCT OF COMPANY'S BUSINESS PENDING COMPLETION
The Vendor shall, in addition and without prejudice to clause 5.2,
procure that, at all times from the date of this Agreement until
Completion:
(A) the business of each member of the Group is carried on in the
usual and normal course in a prudent manner and consistent
with its past practice;
(B) each member of the Group takes all reasonable steps to
preserve the goodwill of its business and encourages customers
and suppliers to continue to deal with it and shall do nothing
which will or may injure such goodwill;
(C) no member of the Group shall do, allow, or procure any act or
permit any omission which would or might constitute a breach
of any of the warranties, representations, undertakings and
obligations set out in this Agreement, save with the
Purchaser's prior written consent;
(D) no member of the Group shall enter into any contract or
commitment or do anything which, in any such case, is either
out of the ordinary and usual course of its business or which
may adversely affects its assets or increases its liabilities
or its ability to carry on its business as now conducted
without the prior consent in writing of the Purchaser. In
particular (but without limitation), the Vendor shall procure
that from the date of this Agreement until Completion, save
with the prior consent in writing of the Purchaser, no member
of the Group may:
(1) make any alteration to its memorandum or articles of
association or any other document or agreement
establishing, evidencing or relating to its
constitution or operation;
(2) issue or agree to issue any shares or debentures or
other securities convertible into debentures offer,
allot, issue or sell, or agree to allot, issue or
sell, grant or agree to grant any option, right or
warrant over its shares, or any securities
convertible in shares; convertible or exchange
securities or other loan capital;
(3) purchase or redeem any shares or provide financial
assistance for any such purchase;
(4) alter the nature or scope of its business;
(5) manage its business otherwise than in accordance with
its ordinary course of day-to-day operations and
trading policies and practice to date as disclosed to
the Purchaser, except as may be necessary to comply
with changes in applicable laws;
(6) enter into any agreement or arrangement or permit any
action whereby another company becomes its subsidiary
or subsidiary undertaking;
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(7) enter into any transaction other than on arms' length
terms and for full and proper consideration;
(8) acquire (whether by one transaction or by a series of
transactions) the whole or a part of the business,
undertaking or assets of any other person;
(9) acquire any assets on hire purchase or deferred
terms;
(10) dispose of, transfer, lease or assign (whether by one
transaction or by a series of transactions) and
whether or not in the ordinary course of business the
whole or a part of its business, undertaking or any
other of its assets;
(11) incur any capital expenditure in excess of US$1
million;
(12) accept any loans, borrowings or other form of funding
or financial facility or assistance or incur any
other form of indebtedness, or enter into any foreign
exchange contracts, interest rate swaps, collars,
guarantees or agreements or other interest rate
instruments or any contracts or arrangements relating
to derivatives or differences, or in respect of which
the financial outcome is to any extent dependent upon
future movements of an index or rate of currency
exchange or interest, or in the future price of any
securities or commodities;
(13) grant any loans or other financial facilities or
assistance to or any guarantees or indemnities or
incur any contingent liabilities for the benefit of
any person or create or allow to subsist any
Encumbrance over the whole or any part of its
undertaking, property or assets or otherwise incur
any contingent liability;
(14) enter into any joint venture, partnership or
agreement or arrangement for the sharing of profits
or assets or otherwise;
(15) enter into any death, retirement, profit sharing,
bonus, share option, share incentive, profit sharing
or other scheme for the benefit of any of its
officers or employees or make any variation
(including, but without limitation, any increase in
the rates of contribution) to any such existing
scheme or effect any key man insurance;
(16) commence, compromise, settle, release, discharge or
compound any civil, criminal, arbitration or other
proceedings (other than routine debt collection) or
any liability, claim, action, demand or dispute or
waive any right in relation to any of the foregoing;
(17) release, compromise or write off any amount recorded
in the books of account of any member or the Group as
owing by any debtors of such member of the Group;
(18) prematurely repay or prepay any loans, borrowings or
other financial facilities or assistance made
available to it;
(19) terminate the employment or office of any of its
directors, officers or employees or appoint any new
director, officer or employee or consultant or
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alter the terms of employment or engagement of any
director, employee or consultant;
(20) declare, make or pay any dividend or distribution
(whether of capital or of profits);
(21) alter the terms of any existing financing/lending
documents or security arrangements;
(22) pay any remuneration, fee or other sum to the Vendor,
any other member of the Vendor's Group or any
Affiliates of it;
(23) terminate or allow to lapse any insurance policy in
respect of any asset, property or undertaking now in
effect;
(24) establish or open or close any branch or office;
(25) dispose of the ownership, possession, custody or
control of any corporate or other books or records;
(26) save for the passing of any resolutions contemplated
in this Agreement, propose or pass any shareholders'
resolution other than a resolution at any annual
general meeting which is not special business; or
(27) enter into any agreement or obligation to do anything
prohibited by clauses 5.3(D)(1) to 5.3(D)(26)
inclusive.
6. COMPLETION
6.1 DATE AND PLACE OF COMPLETION
Subject to the fulfilment or waiver of the Conditions, Completion shall
take place at 1:00 p.m. on the Completion Date at the offices of Xxx &
Li, Attorneys at Law, Taipei, Taiwan or at such other time and/or place
as the Purchaser and the Vendor may agree.
6.2 VENDOR'S OBLIGATIONS
(A) On Completion the Vendor shall:
(1) deliver to the Purchaser:-
(a) a certified true copy of the resolutions by
the board of directors of the Vendor
approving the entering into of this
Agreement by the Vendor, the sale of the
Sale Shares and all other transactions
contemplated under this Agreement.
(b) certified true copies of any powers of
attorney or other authorities under which
the instruments of transfer and sold notes
in respect of its portion of the Sale Shares
have been executed; and
(c) such other documents, if any, as may
reasonably be required by the
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Purchaser to give to the Purchaser and/or
its nominee(s) good title to the Sale Shares
and to enable the Purchaser and/or its
nominee(s) to become the registered
holder(s) thereof;
(2) procure that Set Top delivers to the Purchaser:
(a) transfers of the Sale Shares duly executed
by Set Top in favour of the Purchaser or a
person to be designated by it together with
the relevant original share certificates and
the Stock Power referred to in the agreement
dated 28 July 2004 entered into by Mr. K.J.
Maa, Set Top, the Company and the Vendor;
and
(b) such waivers or Consents as the Purchaser
may require to enable the Purchaser or its
nominees to be registered as holder of the
Sale Shares.
(3) deliver the Deed of Indemnity in the Agreed Form duly
executed by the parties thereto (except the
Purchaser);
(4) procure board meetings of the Company to be held at
which there shall be passed a resolution to approve
the transfer of the Sale Shares and all other
documents and transactions contemplated under this
Agreement.
6.3 PURCHASER'S OBLIGATIONS
(A) On Completion, the Consideration shall be held in an account
of the Escrow Agent and the Escrow Agent shall hold the
Consideration in escrow in accordance with the terms of the
Escrow Agreement to be entered into at Completion.
(B) US$25 million of the Consideration shall be used to repay the
outstanding debt owed to Set Top by the Vendor. The balance of
US$1 million shall be used to pay cost and expenses
(including, without limitation, any professional fees,
registration or filing fees and other out-of-pocket expenses)
incurred by the Purchaser in connection with and in relation
to this Agreement or the transactions contemplated hereunder.
After deducting such costs and expenses from the
Consideration, the balance (if any) will be released to the
Vendor.
6.4 FAILURE TO COMPLETE
If in any respect any of the obligations of the Vendor or the Purchaser
are not complied with on the Completion Date, the party not in default
may:
(A) defer Completion to a date not more than 7 days after the
Completion Date (and so that the provisions of this clause
6.4, apart from this clause 6.4(A), shall apply to Completion
as so deferred); or
(B) proceed to Completion so far as practicable (without prejudice
to its rights hereunder); or
(C) rescind this Agreement, in which event this Agreement shall
forthwith be terminated and each party hereto has no claim
against the other, save for antecedent breach and the breach
of this Clause 6.
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7. EXCLUSIVITY
7.1 EXCLUSIVITY UNDERTAKING
(A) Each of the Vendor and the Guarantors hereby represents,
undertakes and agrees that it will:
(1) not negotiate, solicit or entice any alternative
offer for or make any contact of whatsoever nature
with any other person in relation to the Sale Shares
or dispose of any shares or any equity interest of
any member of the Group (or any interest or voting
rights therein);
(2) not enter into discussions or negotiations in
relation to the Sale Shares with, or provide any
information concerning the Group to, any third party
in contemplation of such alternative offer;
(3) promptly inform the Purchaser of the existence and
the terms of any unsolicited alternative offer for
the Group which any of the Vendor and the Guarantors,
and the status and development of any existing offer
from any third party and negotiation thereof may
receive; and
(4) not carry out any action, or enter into any
agreement, transaction or obligation to do anything
prohibited under clauses 7.1(A)(1) to (2) above or
any agreement or arrangement similar in nature or for
achieving a similar purpose.
(B) The obligations contained in the clause 7.1(A) shall cease to
apply upon whichever is the earlier of:
(1) the Completion Date; and
(2) save and except where the termination of this
Agreement is caused as a result of the default or
breach of this Agreement by the Vendor, the
termination of this Agreement as provided hereunder.
8. VENDOR'S WARRANTIES
8.1 GENERAL
(A) Each of the Vendor and the Guarantors hereby warrants,
represents and undertakes to and for the benefit of the
Purchaser in the terms of the Vendor's Warranties and
acknowledges and accepts that the Purchaser is entering into
this Agreement in reliance upon each of the Vendor's
Warranties each of which is given on the basis that it will
remain true and accurate in all respects at all times up to
and including Completion Provided that the Guarantors'
warranties are limited to items 2.1, 2.2 and 3 in Schedule 2
only.
(B) The Vendor's Warranties are given subject to matters fairly,
properly and adequately disclosed in this Agreement.
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(C) None of the Vendor's Warranties shall be deemed in anyway
modified or discharged by reason of any investigation or
inquiry made or to be made by or on behalf of the Purchaser or
its representatives, advises or agents at any time prior to
Completion and no information relating to the Company, any
other member of the Group or the Group generally or otherwise
of which the Purchaser has knowledge (whether actual,
constructive or otherwise) shall prejudice any claim that the
Purchaser shall be entitled to make or shall operate to reduce
any amount recoverable by the Purchaser hereunder, and it
shall not be a defence to any claim brought against the Vendor
that the Purchaser had knowledge (whether actual, constructive
or otherwise) of any information relating to the circumstances
giving rise to such claim.
8.2 VENDOR'S WARRANTIES TO BE INDEPENDENT
The Vendor's Warranties shall be separate and independent and, save as
expressly provided, shall not be limited by reference to any other
Vendor's Warranty or any other provision of this Agreement or any
document to be entered into pursuant to this Agreement.
8.3 FURTHER DISCLOSURE BY THE VENDOR
Without prejudice to clause 5.2, the Vendor and the Guarantors shall
forthwith disclose in writing to the Purchaser any matter or thing
(including omission to act) which may arise or become known to the
Vendor or the Guarantors on or before Completion which is inconsistent
with any of the Vendor's Warranties or which might make any of them
inaccurate or misleading if they were given at any and all times from
the date hereof up to Completion or which is a breach of clauses 5.2 or
5.3 or which would affect the decision of a purchaser for value of the
Sale Shares to purchase such shares or which has, or is likely to have,
an adverse effect on the financial position of any member of the Group.
8.4 RESCISSION
In the event of it becoming apparent on or before Completion that the
Vendor is in breach of any of the Vendor's Warranties or any other term
of this Agreement or the documents to be entered into pursuant to this
Agreement or any act, omission, matter or thing has occurred which
results in a breach of the Vendor's Warranties, the Purchaser may at
its option either:
(A) rescind this Agreement by notice in writing to the Vendor in
the event that this Agreement shall lapse and no party hereto
shall have or make any claim against the other in respect
hereof except for Clauses 11, 12, 14.8 and 15 and save for any
antecedent breach (including any breach of clauses 4.2 or
4.3); or
(B) proceed to Completion but without prejudice to its right to
claim for breach of this Agreement or such Vendor's
Warranties.
8.5 WAIVER OF CLAIMS
The Vendor jointly and severally undertakes to and for the benefit of
the Purchaser that it will not make or pursue any claim or action
howsoever arising against the Company, any of the Subsidiaries or its
associated companies or any of their respective directors or
13
employees in respect of any loss or liability that the Vendor may incur
pursuant to this Agreement (or any other document referred to herein)
or otherwise in connection with the sale of the Sale Shares to the
Purchaser.
8.6 INDEMNITY
Each of the Vendor and the Guarantors undertakes to indemnify and keep
indemnified the Purchaser (for itself and as trustee for each member of
the Group) against any loss or liability suffered by the Purchaser
and/or any member of the Group as a result of or in connection with any
breach of any of the Vendor's Warranties including, but not limited to,
any diminution in the value of the Sale Shares, the assets of the Group
or any payment made or required to be made by the Purchaser and/or any
member of the Group and any costs and expenses incurred as a result of
such breach provided that the indemnity contained in this clause shall
be without prejudice to any other rights and remedies of the Purchaser
in relation to any such breach of Vendor's Warranty and all such other
rights and remedies are hereby expressly reserved to the Purchaser.
9. UNDERTAKINGS
9.1 BY THE VENDOR
(A) The Vendor hereby undertakes to the Purchaser not to, and will
procure that none of its Affiliates may, on or prior to
Completion, purchase, acquire or otherwise deal in any of the
Shares or any interest therein.
(B) The Vendor hereby undertakes to the Purchaser that it will,
and will procure that the Company shall take such action and
give such information and assistance in connection with the
affairs of the Company as the Purchaser may reasonably require
in respect of any matters or claims in relation to or in
connection with Tax or otherwise.
(C) Each of the Vendor and the Guarantors shall procure the
delivery of the audited consolidated accounts of Charoong Thai
Wire & Cable Co. Ltd and its subsidiaries and its associates
companies for the period between 1 January to 30 June 2004
signed off by Ernst & Young and addressed to the Purchaser on
or before 17 September 2004.
(D) The Vendor undertakes to the Purchaser that the composite
service agreement dated 7 November 1996 entered into between
the Company and the Vendor shall remain subsisting and valid
and shall be renewed in accordance with its existing terms and
will not be terminated at any time on or before 23 September
2007.
(E) The Vendor hereby undertakes to the Purchaser that all of the
business relationship and transactions between the Vendor or
any of its Affiliates on the one hand, and the Company or any
other member of the Group on the other hand, shall be
maintained in such manner which is consistent with past
practices (including, without limitation the supply of raw
materials and distribution of products) and on an arm's length
basis, based on fair commercial terms.
(F) The Vendor hereby undertakes to the Purchaser that all the
existing loan agreements or arrangements between the Vendor or
any of its Affiliates on the one
14
hand, and the Company or any other member of the Group on the
other hand, shall remain subsisting and valid in accordance
with its existing terms, and none of such arrangements or
agreements may be terminated nor shall any payment or
repayment be demanded thereunder by the relevant lender for
whatever reasons nor may any security or Encumbrance interest
in relation thereto be enforced at any time on or before 23
September 2007.
(G) The Vendor hereby undertakes to the Purchaser that it will,
and will procure that all pledges and other Encumbrances over
or in relation to the shares of APWC General Holdings Ltd and
Samray Inc. shall be terminated by the parties thereto within
7 days of the date of Completion, without any liability on any
of the party thereto and without affecting the loan(s) in
relation to such pledge or Encumbrance in any manner.
(H) The Vendor hereby warrants that the cash deposits under the
personal names of various directors of Pacific Thai Wire &
Cable Co., Ltd and its subsidiaries for the aggregate amount
of Baht 62.5 million has been transferred to the names of the
relevant Group Company and further undertakes to the Purchaser
that it will, or procure that the relevant Group Company will
maintain such amounts in such cash deposits and transfer such
moneys into its own bank accounts (if it is not already done
so) to the satisfaction of the Purchaser.
(I) The Vendor hereby warrants and covenants that it currently
holds directly or indirectly through its Subsidiaries legal
and beneficial ownership in 50.39% of the entire issued common
share capital of Charoong Thai Wire & Cable Co., Ltd
("CHAROONG THAI") and will at all times maintain not less than
such shareholding percentage after Completion. If, for any
reason, Choroong Thai's shareholding drops below such
percentage, whether due to any dilution (including, but not
limited to, the exercise of any warrants issued by Charoong
Thai) or otherwise, the Vendor undertakes that it will
forthwith acquire shares in Charoong Thai so that the Vendor's
shareholding percentage in it shall be maintained at all
times, failing which the Vendor shall indemnify the Purchaser
against any loss or liability suffered by the Purchaser and/or
any member of the Group as a result of or in connection with
such dilution.
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9.2 BY THE PURCHASER
(A) To the extent permissible under applicable laws and subject
always to not resulting in the Vendor and the Purchaser (or
their respective Affiliates) being implicated as parties
"acting in concert" (within the meaning under the Code on
Takeovers and Mergers in Hong Kong) or other analogous or
similar doctrines under other applicable jurisdictions, the
Purchaser hereby agrees with the Vendor and the Company not to
take any action, or to commit any omission by willful default
which would cause consequence as if an action had been taken,
which would prevent the Vendor from maintaining management
control in all aspects of the operation of the Company and its
Subsidiaries, including but not limited to election and
removals of directors or board and/or managerial positions in
the Company and its Subsidiaries, Provided however that, for
the avoidance of doubt, the Purchaser may (i) notwithstanding
any other provisions of this Agreement, the Memorandum and
Articles or other constitutional documents of any Group
Company or any other document, from time to time appoint up to
three (3) directors to the board of each of the Company and
its Group Companies and such directors shall be entitled to an
absolute right to veto any resolution which would otherwise be
passed by the relevant board; and (ii) exercise its rights to
supervise the financial operation of the Company and its
Subsidiaries (and the Memorandum and Bye-laws, or similar
constitutional documents, of the Group Companies shall be
amended to reflect the foregoing provisions).
(B) The Purchaser agrees that it (or the person designated by it
to purchase the Sale Shares on Completion) will not dispose of
the Sale Shares in any way which will result in the inability
of the Purchaser (or such designee) to transfer such Sale
Shares to the Vendor upon its exercise of the call options
pursuant to the Option Agreement, Provided however that the
Purchaser (or such designee) may at any time without
transferring its legal title to the Sale Shares, Encumber or
otherwise deploy any of the Sale Shares as collateral or
security provided that disclosure is made to the Vendor and
the Encumbrance holder is notified of the existence of the
call options.
10. GUARANTEE BY THE GUARANTORS
10.1 In consideration of the Purchaser agreeing to enter into this Agreement
with the Vendor at the request of the Guarantors, the Guarantors hereby
irrevocably and unconditionally, as primary obligors, undertake and
guarantee to the Purchaser the full, prompt and due performance by the
Vendor of the Vendor's Warranties set out in clause 8.1(A).
10.2 The obligations of the Guarantors under Clause 10.1 shall not be
affected by any act, omission, matter or thing which, but for this
provision, might operate to release or otherwise exonerate the
Guarantors from its obligations or affect such obligations, including
without limitation:
(A) any time, indulgence, waiver or consent at any time given to
the Vendor or any other person;
(B) any compromise or release of or abstention from perfecting or
enforcing any right or remedy against the Vendor or any other
person;
16
(C) any legal limitation, disability, incapacity or other
circumstances relating to the Vendor or any other person or
any amendment to or variation of the terms of this Agreement
and the Transaction Documents or any other document referred
to in this Agreement and the Transaction Documents; or
(D) any irregularity, unenforceability or invalidity of any
obligations of the Vendor under this Agreement and the
Transaction Documents, or the dissolution, amalgamation,
reconstruction or insolvency of the Vendor.
10.3 The guarantee contained in this Clause 10 may be enforced by the
Purchaser without the Purchaser first taking any steps or proceedings
against the Vendor and the guarantee contained in this Clause 10 are
given and entered into jointly and severally by the Guarantors.
10.4 The Guarantors will jointly and severally indemnify, and keep
indemnified, the Purchaser fully from and against any loss, liability,
cost, claim, action, demand or expense (including, but not limited to,
all costs, charges and expenses paid or incurred in disputing or
defending any of the foregoing) which the Purchaser may incur or which
may be made against the Purchaser arising out of or in relation to any
breach or alleged breach by the Vendor of any of the obligations,
terms, conditions, representations, warranties, undertakings and
indemnities under this Agreement and the Transaction Documents.
11. CONFIDENTIALITY
11.1 CONFIDENTIALITY
Subject to clauses 11.2 and 12, each party:
(A) shall treat as strictly confidential the provisions of this
Agreement and the process of their negotiation and all
information about the other party or the Group obtained or
received by it as a result of its due diligence process or
negotiating, entering into or performing its obligations under
this Agreement (the "Confidential Information"); and
(B) shall not, except with the prior written consent of the other
party (which shall not be unreasonably withheld or delayed),
make use of (save for the purposes of performing its
obligations under this Agreement) or disclose to any person
any Confidential Information.
11.2 PERMITTED DISCLOSURE OR USE
Clause 11.1 shall not apply if and to the extent that the party using
or disclosing Confidential Information can demonstrate that:
(A) such disclosure is required by law or by any supervisory,
regulatory or governmental body having jurisdiction over it
and whether or not the requirement has the force of law
Provided that the content of such disclosure shall have been
previously approved by the other parties (except the
Guarantors) hereto in writing; or
17
(B) such disclosure to its professional advisers in relation to
the negotiation, entry into or performance of this Agreement
or any matter arising out of or in connection with the same
Provided that such professional advisers are subject to
confidentiality obligations substantially similar to this
Clause 11; or
(C) such disclosure is required in order to facilitate any
assignment or proposed assignment of the whole or any part of
the rights or benefits under this Agreement which is permitted
by clause 14.1; or
(D) in the case of disclosure or use, the Confidential Information
concerned was lawfully in its possession (as evidenced by
written records) prior to its being obtained or received as
described in clause 11.1 above; or
(E) in the case of disclosure or use, the Confidential Information
concerned has come into the public domain other than through
its fault or the fault of any person to whom such Confidential
Information has been disclosed in accordance with sub-clause
(B) above.
11.3 CONTINUANCE OF RESTRICTIONS
The restrictions contained in this clause 11 shall survive Completion
and shall continue without limit of time.
12. ANNOUNCEMENTS
12.1 RESTRICTIONS
Subject to clause 12.2, and whether or not any restriction contained in
clause 12 applies, the Vendor and the Guarantors shall not make any
announcement (including any communication to the public, the press, to
any customers or suppliers of the Group, or to all or any of the
employees of the Group) concerning the provisions or subject matter of
this Agreement or containing any information about the Purchaser
without the prior written approval of the Purchaser.
12.2 CONTINUANCE OF RESTRICTIONS
The restrictions contained in this clause 12 shall survive Completion
and shall continue without limit of time.
13. TERMINATION
13.1 EVENTS OF TERMINATION
If at any time prior to Completion:
(A) any of the Vendor or the Guarantors commits any material
breach of or omits to observe any of its obligations or
undertakings on its part under this Agreement in any material
respect;
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(B) without prejudice to any other provisions of this clause,
between the date of this Agreement and Completion, any
provision of clause 5 is not satisfied or has not been duly
and promptly fulfilled, observed or performed in any material
respect;
(C) the Company shall sustain any substantial loss or damage
(howsoever caused and whether or not the subject of any
insurance or claim against any person);
(D) any petition is presented for the winding up or liquidation of
the Company or the Company makes any composition or
arrangement with its creditors or enters into a scheme of
arrangement or any resolution is passed for the winding up of
the Company or a provisional liquidator, receiver or manager
is appointed over all or part of the assets or undertaking of
the Company or anything analogous thereto occurs in respect of
the Company;
(E) there occurs in the sole and absolute determination of the
Purchaser a Material Adverse Change; or
(F) in the sole determination of the Purchaser any of the Vendor's
Warranties are found to be, or any event occurs or matter
arises which renders or may render any of the Vendor's
Warranties, untrue, inaccurate or misleading in any respect;
then, in any such case, the Purchaser may in its sole and absolute
discretion without any liability on its part, by notice in writing to
the Vendor and the Guarantors, forthwith terminate this Agreement. The
right to terminate this Agreement under each of sub-clauses 13.1 (A) to
(F) above is a separate and independent right and the exercise of any
such right shall not affect or prejudice or constitute a waiver of any
other right, remedy or claim which the Purchaser may have as at the
date of such notice (including but not limited to any other right to
terminate this Agreement).
13.2 CONSEQUENCES OF TERMINATION
Upon the giving of notice pursuant to sub-clause 13.1 above by the
Purchaser, all obligations of the parties hereto under this Agreement
shall cease and determine and no party hereto shall have any claim
against the other in respect of any matter or thing arising out of or
in connection with this Agreement save and except:
(A) in respect of any antecedent breach; and
(B) that the termination shall not affect the accrued rights and
obligations of the parties hereto on or prior to such
termination and shall be without prejudice to the continued
application of clauses 11, 12, 14.8 and 15.
14. MISCELLANEOUS
14.1 ASSIGNMENT
(A) This Agreement shall be binding upon and enure for the benefit
of the successors of the parties hereto but shall not be
assignable, save that the Purchaser (and any assignee of the
Purchaser and subsequent assignee thereof) may at any time
assign all or any part of its rights and benefits under this
Agreement and any agreement referred to herein, including any
of the Vendor's Warranties and any
19
other indemnities, undertakings and obligations given or
undertaken by the Vendor and/or any of the Guarantors and any
cause of action arising under or in respect of any of them
without the prior written consent of the Vendor or any of the
Guarantors.
(B) Any assignee of the Purchaser or subsequent assignee thereof
(as the case may be) may enforce any right or benefit assigned
to it as if it had been named in this Agreement as the
Purchaser and as if it had acquired the Sale Shares (or the
appropriate proportion thereof) for the consideration per Sale
Share and upon the other terms of this Agreement and had
thereby sustained all diminution of value, losses and expenses
in consequence of such acquisition as have been sustained by
the Purchaser.
(C) Any assignee of the Purchaser (or subsequent assignee thereof)
shall be entitled to enforce the benefits conferred upon it by
such assignment and this clause 14.1 directly against the
Vendor and for that purpose each such assignee shall be
entitled to the benefit of and be subject to all the
provisions of this Agreement in any way relevant to the rights
assigned to it and conferred upon it by this clause 14.1. The
consent of such assignee shall be required to any amendment to
or the rescission of this Agreement.
(D) Without prejudice to the generality of the foregoing, the
Purchaser shall designate Sino-JP Fund Co., Ltd. to take up
the Sale Shares on Completion, which will become the legal and
beneficial owner of the Sale Shares. For the purpose of this
clause 14.1(D), such designation shall not constitute an
assignment but in case a competent Authority determines that
such designation is deemed to be an assignment, this clause
14.1 shall become applicable accordingly.
14.2 WHOLE AGREEMENT AND VARIATIONS
(A) This Agreement, together with any documents referred to in it,
constitutes the whole agreement between the parties relating
to its subject matter and supersedes and extinguishes any
prior drafts, agreements, and undertakings, whether in writing
or oral, relating to such subject matter, except to the extent
that the same are repeated in this Agreement.
(B) No variation of this Agreement shall be effective unless made
in writing and signed by each of the parties and/or the
assignee of the Purchaser (or any subsequent assignee thereof
if such an assignment has occurred pursuant to clause 14.1).
14.3 AGREEMENT SURVIVES COMPLETION
The Vendor's Warranties and all other provisions of this
Agreement, in so far as the same shall not have been performed
at Completion, shall remain in full force and effect
notwithstanding Completion.
14.4 RIGHTS, ETC CUMULATIVE AND OTHER MATTERS
(A) The rights, powers, privileges and remedies provided in this
Agreement are cumulative and are not exclusive of any rights,
powers, privileges or remedies provided by law or otherwise.
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(B) No failure to exercise nor any delay in exercising any right,
power, privilege or remedy under this Agreement shall in any
way impair or affect the exercise thereof or operate as a
waiver thereof in whole or in part.
(C) No single or partial exercise of any right, power, privilege
or remedy under this Agreement shall prevent any further or
other exercise thereof or the exercise of any other right,
power, privilege or remedy.
14.5 FURTHER ASSURANCE
At any time after Completion the Vendor and the Guarantors shall, at
the request of the Purchaser and at the cost of the Vendor and the
Guarantors execute or procure the execution of such documents and do or
procure the doing of such acts and things as the Purchaser may
reasonably require for the purpose of vesting the Sale Shares in the
Purchaser or its nominees and giving to the Purchaser the full benefit
of all the provisions of this Agreement and the transactions
contemplated under this Agreement.
14.6 INVALIDITY
If any provision of this Agreement shall be held to be illegal, void,
invalid or unenforceable under the laws of any jurisdiction, the
legality, validity and enforceability of the remainder of this
Agreement in that jurisdiction shall not be affected, and the legality,
validity and enforceability of the whole of this Agreement in any other
jurisdiction shall not be affected.
14.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts, which
shall together constitute one agreement. Any party may enter into this
Agreement by signing any such counterpart.
14.8 COSTS AND EXPENSES
Each party shall bear its own costs arising out of or in connection
with the preparation, negotiation and implementation of this Agreement
save that (i) the Vendor shall bear, out of balance of the Purchaser
Price of US$1 million, expenses and costs of the Purchaser in
accordance with Clause 6.3(B) above and all stamp duty and other duty
or levies (if any) payable in respect of the sale and purchase of the
Sale Shares or shares in the Company's Subsidiaries or associated
companies shall be borne by the Vendor.
14.9 ENFORCEABILITY
Each party intends that the provisions of this Agreement shall be
enforced to the maximum extent permissible under the laws applied in
each jurisdiction in which enforcement of any provision of this
Agreement is sought. If any particular provision or part of this
Agreement shall be held to be invalid or unenforceable, this Agreement
shall be deemed to be amended by the deletion of the provision or part
held to be invalid or unenforceable or, to the extent permissible by
the applicable laws of the relevant jurisdiction in which such
enforcement is sought, such provision or part shall be deemed to be
varied in such a way as to achieve most closely the purpose of the
original provision or part in a manner which is valid and enforceable,
provided that for the avoidance of doubt,
21
such amendments shall apply only with respect to the operation of the
Agreement in the particular jurisdiction in which the decision as to
the invalidity or unenforceability is made.
14.10 NO SET-OFF
All sums payable by any party under this Agreement shall be made free
of any set-off, counterclaim or other deduction of any nature
whatsoever, except as may be required by law.
14.11 TIME OF THE ESSENCE
Time shall be of the essence of this Agreement.
14.12 NOTICES
(A) Any notice or other communication required to be given under
this Agreement or in connection with the matters contemplated
by it shall, except where otherwise specifically provided, be
in writing in the English language and shall be addressed as
provided in clause 14.12(B) and may be:
(1) personally delivered, in which case it shall be
deemed to have been given upon delivery at the
relevant address; or
(2) if within Hong Kong, sent by pre-paid post, in which
case it shall be deemed to have been given two
Business Days after the date of posting; or
(3) if from or to any place outside Hong Kong, sent by
pre-paid airmail or by air courier, in which case it
shall be deemed to have been given seven (7) Business
Days after the date of posting in the case of airmail
or two Business Days after delivery to the courier in
the case of air courier; or
(4) sent by fax, in which case it shall be deemed to have
been given when despatched, subject to confirmation
of uninterrupted transmission by a transmission
report provided that any notice despatched by fax
after 17.00 hours (at the place where fax is to be
received on any day) shall be deemed to have been
received at 08.00 hours on the next Business Day; or
(5) sent by electronic mail, in which case it shall be
given when received, but subject to the same
provisions concerning receipt after 17.00 hours which
apply to notices sent by fax.
(B) The addresses and other details of the parties referred to in
clause 14.12(A) are, subject to clause 14.12(C), as follows:
Name: Pacific Electric Wire & Cable Co., Ltd
For the attention of: Xxxx Xxxxx (E.V.P.)
Address: 26th Floor, Xx. 00, Xxxxxxx 0, Xxxxxx Xxxxx Xxxx,
Xxxxxx 000, Xxxxxx
Fax number: (00) 0000-0000
22
Telephone number: (00) 0000-0000
Name: Asset Managers Co., Ltd
For the attention of: Xx. Xxxxx Xxxxxxxx
Address: The Imperial Hotel Tower 17F
0-0-0 Xxxx-Xxxxxxxxx, Xxxxxxx-xx,
Xxxxx 000-0000, Xxxxx
Fax number: 00-0000-0000
For the attention of: Xxxxx Xxx-Xxxx Sun
Address: 26th Floor, Xx. 00, Xxxxxxx 0, Xxxxxx Xxxxx Xxxx,
Xxxxxx 000, Xxxxxx
Fax number: (00) 0000-0000
Telephone number: (00) 0000-0000
For the attention of: Xxxx Xxxx Tan Yuan
Address: 26th Floor, No. 95, Xxxxxxx 0, Xxxxxx Xxxxx Xxxx,
Xxxxxx 000, Xxxxxx
Fax number: (00) 0000-0000
Telephone number: (00) 0000-0000
(C) Any party to this Agreement may notify the other parties of
any change to its address or other details specified in clause
14.12(B), provided that such notification shall only be
effective on the date specified in such notice or five
Business Days after the notice is given, whichever is later.
15. LAW AND JURISDICTION
15.1 HONG KONG LAW
This Agreement shall be governed by, and construed in accordance with
the laws of Hong Kong.
15.2 JURISDICTION
In relation to any legal action or proceedings to enforce this
Agreement or any matter or thing arising out of or in connection with
this Agreement ("Proceedings") each of the parties hereto irrevocably
submits to the non-exclusive jurisdiction of the courts of Hong Kong
and waives any objection to Proceedings in such courts on the grounds
of venue or on the grounds that the Proceedings have been brought in an
inappropriate forum.
15.3 PROCESS AGENT
(A) The Vendor appoints Xxxxxx Enterprises Limited (HK) of Xxxx
0000, 00xx Xxxxx, xxx Xxxxxx, 00 Xxxxx'x Xxxx Xxxxxxx, Xxxx
Xxxx as its process agent to receive on
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its behalf service of process in any proceedings in Hong Kong.
Service upon the process agent shall be good service upon the
Vendor whether or not it is forwarded to and received by the
Vendor. If for any reason the process agent ceases to be able
to act as process agent, or no longer has an address in Hong
Kong, the Vendor irrevocably agrees to appoint a substitute
process agent with an address in Hong Kong acceptable to the
Purchaser and to deliver to the Purchaser a copy of the
substitute process agent's acceptance of that appointment
within 14 Business Days of the date of such appointment. In
the event that the Vendor fails to appoint a substitute
process agent, it shall be effective service for the Purchaser
to serve the process upon the last known address in Hong Kong
of the last known process agent for the Vendor notified to the
Purchaser notwithstanding that such process agent is no longer
found at such address or has ceased to act.
(B) Each of the Guarantors appoints Xxxxxx Enterprises Limited, HK
of Xxxx 0000, 00xx Xxxxx, xxx Xxxxxx, 00 Xxxxx'x Xxxx Xxxxxxx,
Xxxx Xxxx as its process agent to receive on its behalf
service of process in any proceedings in Hong Kong. Service
upon the process agent shall be good service upon the
Guarantors whether or not it is forwarded to and received by
the Guarantors. If for any reason the process agent ceases to
be able to act as process agent, or no longer has an address
in Hong Kong, the Guarantors irrevocably agrees to appoint a
substitute process agent with an address in Hong Kong
acceptable to the Purchaser and to deliver to the Purchaser a
copy of the substitute process agent's acceptance of that
appointment within 14 Business Days of the date of such
appointment. In the event that the Guarantors fail to appoint
a substitute process agent, it shall be effective service for
the Purchaser to serve the process upon the last known address
in Hong Kong of the last known process agent for the relevant
Guarantor notified to the Purchaser notwithstanding that such
process agent is no longer found at such address or has ceased
to act.
(C) The Purchaser appoints Asset Managers (China) Co. Ltd of 26th
Floor, Citicorp Centre, 00 Xxxxxxxxx Xxxx, Xxxxxxxx Xxx, Xxxx
Xxxx as its process agent to receive on its behalf service of
process in any proceedings in Hong Kong. Service upon the
process agent shall be good service upon the Purchaser whether
or not it is forwarded to and received by the Purchaser. If
for any reason the process agent ceases to be able to act as
process agent, or no longer has an address in Hong Kong, the
Purchaser irrevocably agrees to appoint a substitute process
agent with an address in Hong Kong acceptable to the Vendor
and to deliver to the Vendor a copy of the substitute process
agent's acceptance of that appointment within 14 Business Days
of the date of such appointment. In the event that the
Purchaser fails to appoint a substitute process agent, it
shall be effective service for the Vendor to serve the process
upon the last known address in Hong Kong of the last known
process agent for the Purchaser notified to the Vendor
notwithstanding that such process agent is no longer found at
such address or has ceased to act.
AS WITNESS of which this agreement has been executed as a deed and has been
delivered on the date first before written.
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Signed by )
)
for and on behalf of )
PACIFIC ELECTRIC WIRE & CABLE CO., LTD )
in the presence of: )
Signed by )
)
for and on behalf of )
ASSET MANAGERS CO., LTD )
in the presence of: )
Signed, sealed and delivered by )
YUAN, XXXX-XXXX )
in the presence of: )
Signed, sealed and delivered by )
XXXXX XXX-XXXX SUN )
in the presence of: )
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