DATED THE 28 DAY OF JANUARY 2000
NANO TECHNOLOGY LIMITED
(AS COMPANY)
AND
GLOBAL TELEPHONE COMMUNICATION INC.
(AS SUBSCRIBER)
---------------------------
AGREEMENT
FOR SUBSCRIPTION OF SHARES
IN
NANO TECHNOLOGY LIMITED
---------------------------
XXXX & PARTNERS,
SOLICITORS,
00XX XXXXX, XXXXXXX XXXXX,
0 XXXXXXXXX XXXXX,
XXXXXXX, XXXX XXXX.
REF.: KKM/990238
THIS AGREEMENT is made on the 28 day of January 2000
BETWEEN:
(1) NANO TECHNOLOGY LIMITED, an international business company incorporated
in the British Virgin Islands and having its registered office at
Offshore Incorporations Limited, P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British Virgin Islands ("COMPANY"); and
(2) GLOBAL TELEPHONE COMMUNICATION INC., a company incorporated in the
British Virgin Islands (IBC No. 346782) and having its registered
office at East Asia Xxxxxxxx, P.O. Box 901, Road Town, Tortola, British
Virgin Islands ("Subscriber").
WHEREAS:
(A) The particulars of the Company as at the date hereof are set out in
the Schedule.
(B) Cyber 2000 Limited ("CYBER 2000"), a company incorporated in Hong Kong
and having its registered office at Room 1802, Dominion Centre, 00-00
Xxxxx'x Xxxx Xxxx, Xxxx Xxxx, is a wholly-owned subsidiary of the
Company. Cyber 2000 is established for the purpose of developing the
"voice over internet protocol" and the business of providing re-sale
services of "voice over internet protocol".
(C) The Company has agreed to allot to the Subscriber, and the Subscriber
has agreed to subscribe, subject to and in accordance with the terms
and conditions herein, the New Shares.
(D) In addition to the subscription of New Shares pursuant hereto, the
Subscriber will purchase from each of CMS Development Limited,
Spiderweb Corporation and Xxxxx Xxxx, the existing shareholders of the
Company, 1,500, 500 and 1000 Shares in the Company (the "PURCHASE
TRANSACTION") respectively. Subscription of the New Shares and purchase
of the existing Shares will take place simultaneously whereupon the
Subscriber will enter into a shareholders agreement with all existing
Shareholders and the Company to regulate the internal management of the
Company.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.01 In this Agreement (including the Recitals) and in the Schedule, except
where the context otherwise requires:
"BUSINESS DAY" means any day (other than a Saturday) on which banks are
open for business in Hong Kong;
"COMPLETION" means completion of the subscription of the New Shares in
accordance with the provisions of Clause 4;
"CONSIDERATION" means the consideration for the allotment and issue of
the New Shares in the amount stated in Clause 3.01;
"DIRECTORS" means the directors of the Company whose names are listed
in the Schedule;
"ENCUMBRANCES" means any mortgage, charge, pledge, lien (otherwise than
arising by statute or operation of law), hypothecation or other
encumbrance, priority or security interest whatsoever over or in any
property, assets or rights of whatsoever nature and includes any
agreement for any of the same;
"HONG KONG" means the Hong Kong Special Administrative Region of the
PRC;
"NEW SHARES" means a total of 4,000 ordinary shares of US$1.00 each in
the share capital of the Company to be allotted and issued by the
Company to the Subscriber pursuant to this Agreement;
"SHARES" means ordinary shares of US$1.00 each in the capital of the
Company;
"US DOLLARS" and the sign "US$" mean the lawful currency for the time
being of the United States of America.
1.02 References to persons include references to individuals, firms,
companies, corporations and unincorporated bodies of persons and vice
versa, and words importing a gender or the neuter include both genders
and the neuter, and reference to a certain gender shall include any
gender.
1.03 Reference herein to Clauses, Recitals and Schedule are to clauses and
recitals in and schedule to this Agreement (unless the context
otherwise requires) and the Schedule shall be deemed to form part of
this Agreement.
1.04 The headings are inserted for convenience only and shall not affect the
construction of this Agreement.
1.05 Unless the context requires otherwise, in this Agreement words
importing the singular include the plural and vice versa.
1.06 All references to any party hereto shall, where the context permits,
include their respective successors, personal representatives,
executors, administrators, estates and permitted assigns.
2. SUBSCRIPTION OF NEW SHARES
2.01 Subject to the terms of this Agreement, the Company shall allot and
issue to the Subscriber and the Subscriber shall subscribe for the New
Shares free from all Encumbrances and together with all rights now or
hereafter attaching or accruing thereto. The New Shares shall rank pari
passu with all other existing Shares.
2.02 The Subscriber shall not be obliged to complete the subscription of any
of the New
Shares unless the subscription of all the New Shares is completed
simultaneously with the Purchase Transaction.
3. CONSIDERATION
3.01 The Consideration for the New Shares shall be US$1,000,000 payable by
the Subscriber by 2 equal installments of US$500,000 each. The first
and second instalments of the Consideration shall be respectively paid
at Completion and on the day which is 90 days after Completion, and if
such day is not a Business Day, on the immediate preceeding Business
Day.
3.02 Each installment of the Consideration shall be settled by the
Subscriber delivering to the Company or such other person as may be
nominated by the Company and notified to the Subscriber prior to the
date of payment a banker's draft of US$500,000 issued by a licensed
bank in Hong Kong and made payable to the Company.
4. COMPLETION
4.01 Completion shall take place at the office of Xxxxxx Xxx & Co. at 00xx
Xxxxx, Xxxxx XX, Xxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx (or such
other place or in such manner as may be agreed between the parties)
immediately upon signing by all parties to this Agreement when:
(1) the Company shall deliver or cause to be delivered to the
Subscriber:
(a) certified copy resolutions of the Directors approving and
authorising this Agreement and the allotment and issue of the
New Shares, credited as fully paid-up, and other transactions
contemplated under this Agreement; and
(b) share certificate(s) in respect of the New Shares;
(2) The Subscriber shall deliver to the Company:
(a) a banker's draft of US$500,000 in accordance with Clause 3.02;
(b) an application for the New Shares; and
(c) certified copy resolutions of its board of directors approving
and authorizing this Agreement.
4.02 The Company hereby undertakes to the Subscriber to procure the due
execution of all such further documents as are necessary to vest in the
Subscriber all the New Shares.
5. WARRANTIES
5.01 The Company represents and warrants to the Subscriber that all statement
of facts contained in this Agreement are true and correct.
6. NOTICES
6.01 Each notice, demand, consent 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 number set out below (or such other address or
fax number as the addressee has by five days' prior written notice
specified to the other parties):
To the Company : c/o CMS Development Limited, Xxxx X-0, 00
Xxxxxxx Xxxx, Xxxx Xxxx
Attention: Xx. Xxxx Man Xxx, Xxxxxxx
Fax Number: (000) 0000 0000
To the Subscriber : x/x Xxxxxx Xxx & Xx., 00xx Xxxxx, Xxxxx XX,
The Gateway, Harbour City, Kowloon, Hong Kong
Attention: Xx. Xxxxx Xxxx
Fax Number: (000) 0000 0000
6.02 Any notice, demand, consent 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.
6.03 All notices, demands, consents and other communications shall be in the
English language.
7. MISCELLANEOUS
7.01 RESTRICTIONS ON ANNOUNCEMENTS: Each of the parties hereto undertakes that
prior to Completion and thereafter it will not (save as otherwise provided
in this Agreement or as required by law and other relevant rules and
regulations, including the listing rules governing the listing of shares
on the NASDAQ OTC Bulletin Board) make any announcement in connection with
this Agreement unless the other parties hereto shall have given their
respective consents to such announcement which consents may not be
unreasonably withheld and may be given either generally or in a specific
case or cases and may be subject to conditions.
7.02 COSTS: Each party to this Agreement shall pay its own costs and
disbursements of and incidental to this Agreement and the transaction
contemplated herein.
7.03 WAIVER: No failure or delay by the Subscriber 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 the Subscriber of any breach
by the Company of any provision hereof shall be deemed to be a waiver of
any subsequent breach of that or any other provision hereof and any
forbearance or delay by the Subscriber in exercising any of its rights
hereunder shall not be construed as a waiver thereof.
7.04 SEVERABILITY: 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.
7.05 TIME OF THE ESSENCE: Time is of the essence of this Agreement, both as
regards the dates and periods specifically mentioned and as to any dates
and periods which may, by agreement in writing between or on behalf of the
Company and the Subscriber, be substituted for them.
7.06 COUNTERPARTS: This Agreement may be executed in one or more counterparts
each of which shall be binding on each party by whom or on whose behalf it
is so executed, but which together shall constitute a single instrument.
For the avoidance of doubt, this Agreement shall not be binding on any
party hereto unless and until it shall have been executed by or on behalf
of all persons expressed to be the parties hereto.
7.07 ASSIGNMENT: This Agreement shall be binding upon and enure for the benefit
of the estates, personal representatives or successors of the parties but
shall not be assignable.
7.08 ENTIRE AGREEMENT: This Agreement (together with any documents referred to
herein) constitutes the whole agreement between the parties hereto in
respect of the subject matter hereof.
7.09 AMENDMENT: Unless otherwise specifically provided for in this Agreement,
any provision of this Agreement may be amended, supplemented or waived
only if the parties hereto agree in writing.
8. GOVERNING LAW, JURISDICTION AND PROCESS AGENT
8.01 This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and the parties hereto submit to the non-exclusive
jurisdiction of the Hong Kong courts for the purpose of determining or
enforcing any claim arising hereunder.
8.02 The Company and the Subscriber hereby irrevocably appoint Cyber 2000 and
Xxxxxx Xxx & Co. (solicitors, of 00xx Xxxxx, Xxxxx XX, Xxx Xxxxxxx,
Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx) (each, the "PROCESS AGENT") as their
respective agent to receive and acknowledge on its behalf service of any
writ, summons, order, judgment or other notice of legal process in Hong
Kong. Such service shall be deemed completed on delivery to each party's
Process Agent or, if sent by registered post to the aforesaid or last
known address of such Process Agent, on the second business day after
posting or, if there is a letter box for the aforesaid or last known
address of such Process Agent, upon inserting the writ and/or any other
relevant documents through the letter box (whether or not it is forwarded
to and received by it). In the event that a party's Process Agent cannot
continue to act as such, such party shall forthwith appoint another agent
in Hong Kong for the same purposes and notify such appointment to the
other party in writing.
IN WITNESS whereof this Agreement has been duly executed by the
parties hereto the day and year first above written.
THE COMPANY
SIGNED by Xxxxxxx Xxxx )
----------------------------------
for and on behalf of NANO TECHNOLOGY )
LIMITED in the presence of: ) /s/ Xxxxxxx Xxxx
/s/ Simon Y.S. Xxxx
XXXXX X.X. XXXX
Solicitor
Xxxxxx Xxx & Co.
Hong Kong SAR
THE SUBSCRIBER
SIGNED by Xxxxxx Xxxxxxxxxxx )
----------------------------------
for and on behalf of GLOBAL TELEPHONE )
COMMUNICATION INC. )
in the presence of: ) /s/ Xxxxxx Xxxxxxxxxxx
/s/ Simon Y.S. Xxxx
XXXXX X.X. XXXX
Solicitor
Xxxxxx Xxx & Co.
Hong Kong SAR
SCHEDULE
PARTICULARS OF THE COMPANY
Company Name : Nano Technology Limited
Date of Incorporation : 1 December 1999
Place of Incorporation : British Virgin Islands
Company Number : 355222
Share Capital : Authorised Issued
----------- ------
US$50,000 divided into 6,000 ordinary shares
50,000 ordinary shares
of US$1.00 each
Registered Office : Offshore Incorporations Limited, P.O. Box 957,
Offshore Incorporations Centre, Road Town, Tortola,
British Virgin Islands
Directors : Nominated By Name of Director
------------ ----------------
CMS Development Limited Xxxxxxx Xxxx Man-hao
Spiderweb Corporation Xxxxx Xxxx
Registered Agent : Offshore Incorporations Limited
Shareholders Number of Shares held
CMS Development Limited 2,000
Xxxxx Xxxx 2,000
Spiderweb Corporation 2,000
-------
6,000
Outstanding Mortgage(s)/ : Nil
Encumbrance(s)
