46
THIS AGREEMENT is dated the day of 2003
AMONG:
(1) WISE MEDIA GROUP INC., a company incorporated in Samoa and having its
registered office at Offshore Xxxxxxxx, P.O. Box 217, Apia, Samoa (the "1st
Vendor");
(2) CHINA MEDIA INC., a company incorporated in Samoa and having its registered
office at Offshore Xxxxxxxx, P.O. Box 217, Apia, Samoa (the "2nd Vendor");
(3) SINOWISE LIMITED, a company incorporated in Samoa and having its registered
office at Offshore Xxxxxxxx, P.O. Box 217, Apia, Samoa (the "3rd Vendor");
(4) WAN KIN MAN of Xxxx 0, Xxxxx X, 00xx Xxxxx, Xxx Xxxx Building, No.395
King's Road, Hong Kong (the "4th Vendor");
(5) TOP HARMONY HOLDINGS LIMITED, a company incorporated in the British Virgin
Island and having its registered office at P.O. Box 957, Offshore
Incorporation Centre, Road Town, Tortola, British Virgin Island (the "5th
Vendor");
(6) THE LINK GROUP INC., a company incorporated in the State of Colorado and
having its business address at 000 X. Xxxxxx Xx., Xxxxx 000, Xxxxxxxxx XX
X0X 0X0, Xxxxxx (the "Parent"); and
(7) ASIA GENIUS LIMITED, a Hong Kong corporation having its registered office
at Room 1102, 11th Floor, Xx.000 Xxxxxxxx Xxxx, Xxxxx Xxxxx, Xxxx Xxxx (the
"Purchaser").
WHEREAS:
(A) New Unicorn Holdings Limited (the "Company") was incorporated under
the laws of Samoa on 28th January 2003 as a private limited liability
company. Further information concerning the Company is set out in
Schedule 1.
(B) As at the date hereof, the sole asset of the Company is the
beneficial ownership of 9,999 shares of Media Creative representing
99.99% of issued share capital of Media Creative.
(C) The Purchaser is a wholly-owned subsidiary company of the Parent.
(D) The Vendors, the Parent and the Purchaser are entering into this
Agreement for the sale and purchase of the Sale Shares and the option
to purchase the Option Shares subject to and upon the terms and
conditions of this Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 In this Agreement (including the Recitals, Schedules and Exhibits),
unless the context otherwise requires, the following words and
expressions shall have the following meanings ascribed to each of
them below:
"Accounts" the unaudited balance
sheets of Media Creative
as at the Last Accounts
Date and the unaudited
profit and loss accounts
of Media Creative for
the period commencing
from 2nd May 2001 to the
Last Accounts Date;
"Business Day" a day (other than a
Saturday) on which banks
in Hong Kong are open
for business throughout
their normal business
hours;
"Company" New Unicorn Holdings
Limited;
"Completion" completion of the sale
and purchase of the
Sale Shares in
accordance with the
terms and conditions of
this Agreement;
"Completion Date" the date falling
on the third Business
Day after all the
conditions set out in
Clause 3.2 have been
fulfilled or waived,
whichever is the
earlier;
"Consideration Share" a share of the
common stock of US$0.001
par value per share of
the Parent, forming part
of the Sale Shares
Consideration, and
reference to
"Consideration Shares"
shall be construed
accordingly;
"Encumbrance" any mortgage, charge,
pledge, lien, (otherwise
than arising by statute
or operation of law),
equities, hypothecation
or other encumbrance,
priority or security
interest, preemptive
right deferred purchase,
title retention,
leasing, sale-and-
repurchase or sale-and-
leaseback arrangement
whatsoever over or in
any property, assets
or rights of whatsoever
nature and includes any
agreement for any of the
same and reference
to "Encumbrances" shall
be construed
accordingly;
"Hong Kong" the Hong Kong Special
Administrative Region
of he People's Republic
of China;
"Last Accounts Date" 31st March 2003;
"Media Creative" Media Creative Limited,
a company incorporated
under the laws of Hong
Kong;
"Option" an option exercisable or
exercised pursuant to
Clause 6.1;
"Option Period" the period commencing
on the Completion Date
and ending 60 days
thereafter (both dates
inclusive);
"Option Shares" 52 Shares being
the aggregate of 42
Shares forming part of
the 1st Vendor's Shares
and 10 Shares forming
part of the 5th Vendor's
Shares representing 52%
of the total issued
share capital of the
Company;
"Option Shares Consideration" the cash sum of
US$1,000,000.00;
"Purchaser's Schedule of Exceptions"
the schedule containing
exceptions to the
representations and
warranties of the Parent
and/or the Purchaser
appearing in Schedule 2
Part IIA;
"Purchaser's Warranties" the
representations and
warranties set out in
Schedule 2 Part II and
any other
representations,
warranties and
undertakings made by or
on behalf of the
Purchaser in this
Agreement;
"Sale Shares" 48 Shares being
the aggregate of 8
Shares forming part of
the 1st Vendor's Shares,
the 2nd Vendor's Shares,
the 3rd Vendor's Shares,
the 4th Vendor's Shares
and 10 Shares forming
part of the 5th Vendor's
Shares representing 48%
of the total issued
share capital of the
Company;
"Sale Shares Consideration" the purchase
consideration for the
purchase of the Sale
Shares as stipulated in
Clause 4.1;
"Securities Act" US Securities Act of
1933, as amended;
"Shares" shares of US$1.00 each
in the share capital
of the Company and
reference to "Share"
shall be construed
accordingly;
"Taxation" all forms of taxation
including overseas
taxation and all forms
of profits tax, interest
tax, estate duty and
stamp duty and all
levies, imposts, duties,
charges, fees,
deductions and
withholdings whatsoever
charged or imposed
by any statutory,
governmental state,
provincial, local
government or municipal
authority whatsoever and
the expression "Tax"
shall be construed
accordingly;
"this Agreement" this agreement for the
sale and purchase of
the Sale Shares and the
option to purchase the
Option Shares, as
amended from time to
time;
"this Guarantee" the guarantee made by
the Parent as set out in
Clause 9;
"Transfer Restrictions" transfer
restrictions in relation
to the transfer of
36,000,000 Consideration
Shares (as referred to
in Clause 4.1) or any
part thereof arising
under the Securities
Act;
"US" United States of
America;
"United States Dollars" or the United States dollars;
sign "US$"
"Valuation Report" a valuation report
prepared by a firm of
certified public
accountants or qualified
valuers indicating that
the fair market value of
the entire issued share
capital of Media
Creative as at a date
falling not more than
7 months prior to the
Completion Date shall
be of a value of not
less than US$4,000,000;
"Vendors" collectively the 1st
Vendor, the 2nd Vendor,
the 3rd Vendor, the 4th
Vendor and the 5th
Vendor;
"Vendors' Schedule of Exceptions" the schedule containing
exceptions to the
representations and
warranties of the
Vendors appearing in
Schedule 2 Part IA;
"1st Vendor's Shares" 50
Shares registered in the
name of and beneficially
owned by the 1st Vendor
representing 50% of the
total issued capital of
the Company;
"2nd Vendor's Shares" 10
Shares registered in the
name of and beneficially
owned by the 2nd Vendor
representing 10% of the
total issued capital of
the Company;
"3rd Vendor's Shares" 5
Shares registered in the
name of and beneficially
owned by the 3rd Vendor
representing 5% of the
total issued capital of
the Company;
"4th Vendor's Shares" 15
Shares registered in the
name of and beneficially
owned by the 4th Vendor
representing 15% of the
total issued capital of
the Company;
"5th Vendor's Shares" 20
Shares registered in the
name of and beneficially
owned by the 5th Vendor
representing 20% of the
total issued capital of
the Company; and
"Vendors' Warranties" the
representations and
warranties set out in
Schedule 2 Part I and
any other
representations,
warranties and
undertakings made by or
on behalf of the Vendors
in this Agreement.
1.2 The headings of this Agreement are inserted for convenience only and
shall be ignored in construing this Agreement. Unless the context
otherwise requires, references in this Agreement to the singular
shall be deemed to include references to the plural and vice versa;
references to one gender shall include all genders and references to
any person shall include an individual, firm, body corporate or
unincorporated.
1.3 References in this Agreement to Clauses, Schedules and Exhibits are
references to clauses of and schedules and exhibits to, this
Agreement and references to sub-clauses and paragraphs are unless
otherwise stated, references to sub-clauses and paragraphs of the
Clause, sub-clause or, as appropriate, the Schedule or the Exhibit in
which the reference appears.
1.4 Reference to any ordinance, regulation or other statutory provision
or Stock Exchange rules in this Agreement includes reference to such
ordinance, regulation, provision or rule as modified, consolidated or
re-enacted from time to time.
1.5 The Schedules and the Recitals shall form part of this Agreement.
2. SALE AND PURCHASE OF THE SALE SHARES
2.1 Subject to and upon the terms and conditions of this Agreement, the
Vendors shall sell and the Purchaser shall purchase the Sale Shares
with effect from Completion free from all Encumbrances together with
all rights now or hereafter attaching thereto including but not
limited to all dividends paid, declared or made in respect thereof on
or after the date of Completion.
2.2 The Purchaser shall not be obliged to purchase any of the Sale Shares
unless the purchase of all the Sale Shares is completed
simultaneously.
3. CONDITIONS
3.1
(1) The Purchaser shall and shall procure that his agents shall forthwith upon
the signing of this Agreement conduct such review of the assets,
liabilities, operations and affairs both of the Company and Media Creative
as it may reasonably consider appropriate and the Vendors shall provide and
procure the Company and/or Media Creative to provide such assistance as the
Purchaser or his agents may reasonably require in connection with such
review so as to enable the review to be completed on or before 12:00 noon
on the date falling 60 days from the date of this Agreement or such later
date as the Vendors and the Purchaser may agree under Clause 3.3.
(2) The Vendors shall and shall procure that his agents shall forthwith upon
the signing of this Agreement conduct such review of the assets,
liabilities, operations and affairs of the Purchaser and the Parent as it
may reasonably consider appropriate and the Purchaser and the Parent shall
provide such assistance as the Vendors or their respective agents may
reasonably require in connection with such review so as to enable the
review to be completed on or before 12:00 noon on the date falling 60 days
from the date of this Agreement or such later date as the Vendors and the
Purchaser may agree under Clause 3.3.
3.2 Completion is conditional upon:
(1) the Purchaser being satisfied at its sole and absolute discretion with the
results of the due diligence review to be conducted under Clause 3.1(1);
(2) the Vendors being satisfied at their sole and absolute discretion with the
results of the due diligence review to be conducted under Clause 3.1(2);
(3) the Vendors' Warranties (save and except the Vendors' Schedule of
Exceptions) remaining true and accurate in all respect;
(4) the Purchaser's Warranties (save and except the Purchaser's Schedule of
Exceptions) remaining true and accurate in all respect;
(5) the Valuation Report having been delivered by the Vendors (or any of them)
to the Purchaser;
(6) the Vendors' Schedule of Exceptions having been delivered by the Vendors in
a form reasonably satisfactory to the Purchaser as contemplated by Clause
7.11 of this Agreement and the Purchaser's Schedule of Exceptions having
been delivered by the Purchaser in a form reasonably satisfactory to the
Vendors as contemplated by Clause 8.10 of this Agreement; and
(7) the Vendors (or any of them) having delivered to the Purchaser a
consolidated audited financial statements for Media Creative prepared in
accordance with US Generally Accepted Accounting Principles for the period
from the date of its incorporation until the Last Accounts Date and such
financial statements shall be in a form suitable for filing with the U.S.
Securities and Exchange Commission as required by Form 8-K promulgated
under the Securities Act.
3.3 If any of the conditions set out in Clause 3.2 has not been satisfied
on or before 12:00 noon on the date falling 60 days from the date of
this Agreement or such later date as the Purchaser and the Vendors
may jointly agree, this Agreement shall cease and terminate (save and
except Clause 11 which shall continue to have full force and effect)
and none of the parties to this Agreement shall have any obligations
and liabilities hereunder against or towards one another save for any
antecedent breaches of the terms hereof.
4. CONSIDERATION
4.1 The Sale Shares Consideration for the sale and purchase of the Sale
Shares shall be 36,000,000 Consideration Shares, which shall be
issued by the Parent to the Vendors on Completion in the manner as
provided in Clause 5.
5. COMPLETION
5.1 Upon compliance with or fulfillment or waiver of all the conditions
set out in Clause 3.2, completion of the sale and purchase of the
Sale Shares shall take place at the office of the Purchaser on
Completion Date at or before 3:00 p.m. (or at such other place and
time as both the Vendors and the Purchaser may jointly agree) when
all the acts and requirements set out in this Clause 5 shall be
complied with.
5.2 The Vendors shall deliver or procure the delivery to the Purchaser or
to its order, instruments of transfer in respect of the transfer of
the Sale Shares duly executed by the registered holder thereof in
favour of the Purchaser or its nominee(s) as the Purchaser may
direct, and such other documents as may be required to give a good
and effective transfer of title to the Sale Shares to the Purchaser
or such nominee(s) and to enable the Purchaser or such nominee(s) to
become the registered and beneficial holder thereof free from all
Encumbrances.
5.3 The Vendors shall procure a meeting of the board of directors of the
Company at which such matters shall be dealt with and resolved upon
as the Purchaser shall require for the purposes of giving effect to
the relevant provisions of this Agreement including without
limitation, the appointment of a person nominated by the Purchaser as
director of the Company with effect from the date of Completion.
5.4 Against compliance and fulfillment of all acts and the requirements
set out in Clauses 5.2 and 5.3, the Parent shall and the Purchaser
shall procure that the Parent shall forthwith:
(1) deliver to the 1st Vendor or its nominee(s) as the 1st Vendor may direct
the original share certificates for 6,000,000 Consideration Shares free
from all Encumbrances other than the Transfer Restrictions with the name of
the 1st Vendor or such nominee(s) registered as the beneficial holder(s)
thereof, and such other documents as may be required to give a good and
effective transfer of title to 6,000,000 Consideration Shares to the 1st
Vendor or such nominee(s) and to enable the 1st Vendor or such nominee(s)
to become the registered and beneficial holder thereof free of all
Encumbrances other than the Transfer Restrictions;
(2) deliver to the 2nd Vendor or its nominee(s) as the 2nd Vendor may direct
the original share certificates for 7,500,000 Consideration Shares free
from all Encumbrances other than the Transfer Restrictions with the name of
the 2nd Vendor or such nominee(s) registered as the beneficial holder(s)
thereof, and such other documents as may be required to give a good and
effective transfer of title to 7,500,000 Consideration Shares to the 2nd
Vendor or such nominee(s) and to enable the 2nd Vendor or such nominee(s)
to become the registered and beneficial holder thereof free of all
Encumbrances other than the Transfer Restrictions;
(3) deliver to the 3rd Vendor or its nominee(s) as the 3rd Vendor may direct
the original share certificates for 3,750,000 Consideration Shares free
from all Encumbrances other than the Transfer Restrictions with the name of
the 3rd Vendor or such nominee(s) registered as the beneficial holder(s)
thereof, and such other documents as may be required to give a good and
effective transfer of title to 3,750,000 Consideration Shares to the 3rd
Vendor or such nominee(s) and to enable the 3rd Vendor or such nominee(s)
to become the registered and beneficial holder thereof free of all
Encumbrances other than the Transfer Restrictions;
(4) deliver to the 4th Vendor or its nominee(s) as the 4th Vendor may direct
the original share certificates for 11,250,000 Consideration Shares free
from all Encumbrances other than the Transfer Restrictions with the name of
the 4th Vendor or such nominee(s) registered as the beneficial holder(s)
thereof, and such other documents as may be required to give a good and
effective transfer of title to 11,250,000 Consideration Shares to the 4th
Vendor or such nominee(s) and to enable the 4th Vendor or such nominee(s)
to become the registered and beneficial holder thereof free of all
Encumbrances other than the Transfer Restrictions;
(5) deliver to the 5th Vendor or its nominee(s) as the 5th Vendor may direct
the original share certificates for 7,500,000 Consideration Shares free
from all Encumbrances other than the Transfer Restrictions with the name of
the 5th Vendor or such nominee(s) registered as the beneficial holder(s)
thereof, and such other documents as may be required to give a good and
effective transfer of title to 7,500,000 Consideration Shares to the 5th
Vendor or such nominee(s) and to enable the 5th Vendor or such nominee(s)
to become the registered and beneficial holder thereof free of all
Encumbrances other than the Transfer Restrictions; and
(6) deliver to the Vendors a copy, certified true and complete by an authorized
officer of the Parent, of resolutions of the board of directors of the
Parent approving this Agreement and all other transactions contemplated
under this Agreement.
5.5 Against compliance and fulfillment of all acts and the requirements set out
in Clauses 5.2 and 5.3, the Purchaser shall forthwith:-
(1) produce to the Vendors instrument of transfer and bought
and sold notes in respect of the Sale Shares duly executed
by the Purchaser or its nominees; and
(2) deliver to the Vendors a copy, certified true and complete
by an authorized officer of the Purchaser, of resolutions
of the board of directors of the Purchaser approving this
Agreement and all other relevant transactions contemplated
under this Agreement.
5.6 Upon due and complete performance by the Parent of its obligations
under Clause 5.4(1), (2), (3), (4) and (5), the Purchaser shall be
deemed to have duly fulfilled its payment obligation under Clause
4.1.
5.7 The parties hereto acknowledge that each of the original share
certificates as referred to in Clause 5.4(1), (2), (3), (4) and (5)
respectively shall contain one or more legends with reference being
made to the Securities Act (as well as any other legends required by
the laws of any applicable jurisdiction) whereby such reference shall
contain wordings which are substantially similar to the following:-
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND MAY NOT
BE TRANSFERRED UNLESS A REGISTRATION STATEMENT COVERING THE
SECURITIES IS FILED AND EFFECTIVE OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IS AVAILABLE."
6. GRANT OF THE OPTION
6.1 In consideration of the Purchaser paying to each of the 1st Vendor
and the 5th Vendor the sum of US$1.00 (receipt of which is hereby
acknowledged by the 1st Vendor and the 5th Vendor respectively), the
1st Vendor and the 5th Vendor hereby respectively grant to the
Purchaser the option to purchase, at any time during the Option
Period, Shares in aggregate being all (but not some only) of the
Option Shares at the Option Shares Consideration, on the exercise of
which both the 1st Vendor and the 5th Vendor shall together become
bound to sell and the Purchaser shall become bound to complete the
purchase of all of the Option Shares upon the terms of this
Agreement.
6.2 The Option Shares shall be sold free from all Encumbrances, but
excluding any accrued rights to dividends resolved or declared to be
paid prior to or as at the date of exercise of the Option.
6.3 An Option must be exercised by notice in writing signed by the
Purchaser served during the Option Period in respect of all of the
Option Shares. Such notice shall specify a Business Day on which the
relevant exercise of the Option shall be completed, which date shall
be not more than 5 Business Days after the date of the notice.
6.4 Once given, any notice provided pursuant to Clause 6.3 may not
be withdrawn except with the written consent of both the 1st Vendor
and the 5th Vendor.
6.5 Completion of any exercise of the Option shall take place at the
office of the Purchaser (or at a place and in such manner as the 1st
Vendor, the 5th Vendor and the Purchaser shall agree) on the date
specified in the notice mentioned in Clause 6.3 when all (but not
part only unless the parties so agree) of the following business
shall be transacted:-
(1) the Purchaser shall pay to the 1st Vendor and the 5th Vendor the Option
Shares Consideration by bank transfer or delivery of a cashier's order in
the following manner:-
(i) the Purchaser shall pay a sum of US$800,000, being 80% of
the Option Shares Consideration to the 1st Vendor or any
person or persons to whom the 1st Vendor may direct; and
(ii) the Purchaser shall pay a sum of US$200,000, being the
remaining 20% of the Option Shares Consideration to the 5th
Vendor or any person or persons to whom the 5th Vendor may
direct;
(2) each of the 1st Vendor and the 5th Vendor shall deliver to the Purchaser
duly executed sold notes and instruments of transfer in respect of the
Option Shares in favour of the Purchaser or its nominee(s), together with
the certificates therefor, or otherwise take such action as may be
necessary to transfer legal and beneficial title to such Option Shares to
the Purchaser or its nominee(s);
(3) the 1st Vendor and the 5th Vendor shall deliver or procure the delivery to
the Purchaser to its order:-
(i) all statutory records and minute books (which shall be written up
to date as at completion of the Option) and other statutory
records of the Company;
(ii) the common seal and all rubber stamps, cheque books, cheque stubs
and bank statements, receipt books, all current insurance
policies, books and accounts and title deeds and evidence of
ownership to all assets and all current contracts and all other
accounting records of the Company;
(iii)all correspondence and other documents belonging to the Company
(including its constitutional documents) or written authorities
in favour of the Purchaser for the collection of such documents;
(iv) where directed by the Purchaser, the written resignations of all
or any directors and company secretary of the Company together
with a written acknowledgement under seal from each of them
respectively in such form as the Purchaser shall require that he
has no claims against the Company whether by way of compensation,
remuneration, severance payments, expenses, damages or otherwise;
and
(v) copy, certified as true and complete by a director of the
Company, of resolution of the board of directors approving the
matter referred to in Clause 6.5(4);
(4) the 1st Vendor and the 5th Vendor shall procure a meeting of the board of
directors of the Company at which such matters shall be dealt with and
resolved upon as the Purchaser shall require for the purposes of giving
effect to the relevant provisions of this Agreement including without
limitation, (i) the acceptance of the resignation of the directors of the
Company as provided under Clause 6.5(3)(iv) above; (ii) the appointment of
such persons nominated by the Purchaser as directors and secretary of the
Company with effect from the date of completion of the Option; and (iii)
the amendment of the signatories and bank mandates for all accounts
maintained by the Company with banks and financial institutions in such
manner as the Purchaser may require; and
(5) against compliance and fulfillment of all acts and the requirements set out
in Clauses 6.5(2) and 6.5(3), the Purchaser shall forthwith:-
(i) produce to the 1st Vendor and the 5th Vendor
instrument of transfer and bought and sold notes
in respect of the Option Shares duly executed by
the Purchaser or its nominees; and
(ii) deliver to the 1st Vendor and the 5th Vendor a
copy, certified true and complete by an authorized
officer of the Purchaser, of resolutions of the
board of directors of the Purchaser approving this
Agreement and all other relevant transactions
contemplated under this Agreement.
7. VENDORS' WARRANTIES
7.1 Each of the Vendors jointly and severally warrant to the Purchaser
that the Vendors' Warranties set out in Schedule 2 Part I are true
and accurate in all material respects as at the date hereof and will
continue to be so up to and including the time of Completion. Each of
the 1st Vendor and the 5th Vendor further jointly and severally
warrant to the Purchaser that the Vendor's Warranties set out in
Schedule 2 Part I (save and except paragraph 4 of the Vendor's
Warranties) shall continue to be true and accurate in all respects
from the time of Completion up to and including the time of
completion of the Option. The Vendors hereby further acknowledge that
the Purchaser in entering into this Agreement is relying on the
Vendors' Warranties. For the avoidance of doubt, the Vendors make no
warranty in respect of all matters, documents and/or information
disclosed to the Purchaser or its agents as exceptions from the
Vendors' Warranties as set out in the Vendors' Schedule of Exceptions
and the Purchaser hereby confirm and agree that it has no right to
make any claim or demand in respect of all such matters, documents
and/or information.
7.2 Each of the Vendors' Warranties is without prejudice to any other
warranty or undertaking and, except where expressly stated, no clause
contained in this Agreement governs or limits the extent or
application of any other clause.
7.3 The rights and remedies of the Purchaser in respect of any breach of
the Vendors' Warranties shall not be affected by completion of the
sale and purchase of the Sale Shares or the completion of the Option
Shares, by any investigation made by or on behalf of the Purchaser
into the affairs of the Company, by any failure to exercise or delay
in exercising any right or remedy or by any other event or matter
whatsoever, except a specific and duly authorized written waiver or
release.
7.4 The Vendors hereby undertakes jointly and severally to indemnify and
keep indemnified the Purchaser against any losses, liabilities,
damages, costs and expenses suffered by the Purchaser as a result of
or in connection with any breach of any of the Vendors' Warranties
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 the Vendors' Warranties and all such
other rights and remedies are hereby expressly reserved to the
Purchaser.
7.5
(1) Any claim by the Purchaser in connection with the Vendors' Warranties
("Vendors' Warranty Claim") shall not be made unless the amount of the
damages in respect of such Vendors' Warranty Claim exceed in aggregate
the sum of US$50,000 but if the liabilities exceed that sum the
Vendors shall (subject to other provisions hereof) be liable for the
whole of such liability and not merely the excess.
(2) No liability shall be attached to the Vendors in respect of any single
Vendors' Warranty Claim unless the amount of such Vendors' Warranty
Claim shall exceed US$50,000.
7.6 The Purchaser shall not be entitled to make any Vendor's Warranty Claim
(1) to the extent that provision for the matter or liability which would
otherwise give rise to the claim in question has been made in the
Accounts or has otherwise specifically been taken account of in the
Accounts;
(2) if the claim would not have arisen but for a change in legislation
made after the date of Completion or, if the Option shall have been
exercised, the date of completion of the Option; and
(3) to the extent that the relevant matters, documents or information have
been disclosed to the Purchaser or its agent in the Vendors' Schedule
of Exceptions.
7.7 Where any of the Vendors' Warranties are qualified as being "to the best of
the information, knowledge and belief of the Vendors" or "so far as the
Vendors are aware" or by any other similar expression, such Vendor's
Warranty is deemed to have been made or given to the best of knowledge,
information and belief of the Vendors after making due and careful enquiry.
7.8 Where no Option shall have been exercised by the Purchaser, the maximum
aggregate liability of the Vendors in respect of all Vendor's Warranty
Claims shall not exceed the Sale Shares Consideration. The Vendors'
Warranties shall survive Completion but no Vendor's Warranty Claims may be
brought against the Vendors in respect of any breach of Vendor's Warranties
unless written notice of such Vendor's Warranty Claim specifying the
particulars of such claim has been received by the Vendors on or before the
expiration of six (6) months from the date of Completion.
7.9 Where the Option shall have been exercised by the Purchaser:-
(1) the maximum aggregate liability of the 2nd Vendor, the 3rd
Vendor and the 4th Vendor in respect of all Vendor's Warranty
Claims shall not exceed 62.5% of the Sale Shares Consideration.
The Vendors' Warranties shall survive Completion but no Vendor's
Warranty Claims may be brought against the 2nd Vendor, the 3rd
Vendor and/or the 4th Vendor in respect of any breach of
Vendor's Warranties unless written notice of such Vendor's
Warranty Claim specifying the particulars of such claim has been
received by the 2nd Vendor, the 3rd Vendor and/or the 4th Vendor
on or before the expiration of six (6) months from the date of
Completion; and
(2) the maximum aggregate liability of the 1st Vendor and the 5th
Vendor in respect of all Vendor's Warranty Claims shall not
exceed the aggregate of 37.5% of the Sale Shares Consideration
and the Option Shares Consideration. The Vendors' Warranties
shall survive completion of the Option but no Vendor's Warranty
Claims may be brought against the 1st Vendor and/or the 5th
Vendor in respect of any breach of Vendor's Warranties unless
written notice of such Vendor's Warranty Claim specifying the
particulars of such claim has been received by the 1st Vendor
and/or the 5th Vendor on or before the expiration of six (6)
months from the date of Completion.
7.10 The Vendors shall not be liable for breach of any Vendor's Warranties by
reason of any act done by or omission or default of the Purchaser or the
Parent occurring after the execution of this Agreement.
7.11 The Purchaser acknowledges that the Vendors have not yet delivered the
Vendors' Schedule of Exceptions to the Purchaser or its agent as
contemplated by this Clause 7. The Vendors shall deliver the Vendors'
Schedule of Exceptions to the Purchaser at least 5 days prior to
Completion. The Purchaser shall have the opportunity during such 5 day
period to review and comment on the Vendors' Schedule of Exceptions and
the parties to this Agreement shall use their best efforts to resolve
any concerns or comments that the Purchaser may have with the Vendors'
Schedule of Exceptions.
8. PURCHASER'S WARRANTIES
8.1 Both the Parent and Purchaser jointly and severally warrant to the
Vendors that the Purchaser's Warranties set out in Schedule 2 Part II
are true and accurate in all material respects as at the date hereof
and will continue to be so up to and including the time of Completion
and the Parent and the Purchaser hereby further acknowledges that the
Vendors in entering into this Agreement is relying on the Purchaser's
Warranties. For the avoidance of doubt, the Parent and the Purchaser
makes no warranty in respect of all matters, documents and/or
information disclosed to the Vendors or its agents as exceptions to
the Purchaser's Warranties as set out in the Purchaser's Schedule of
Exceptions and the Vendors hereby confirm and agree that it has no
right to make any claim or demand in respect of all such matters,
documents and/or information.
8.2 Each of the Purchaser's Warranties is without prejudice to any other
warranty or undertaking and, except where expressly stated, no clause
contained in this Agreement governs or limits the extent or
application of any other clause.
8.3 The rights and remedies of the Vendors in respect of any breach of
the Purchaser's Warranties shall not be affected by completion of the
sale and purchase of the Sale Shares, by any investigation made by or
on behalf of the Vendors into the affairs of the Company, by any
failure to exercise or delay in exercising any right or remedy or by
any other event or matter whatsoever, except a specific and duly
authorised written waiver or release.
8.4 The Parent and the Purchaser hereby jointly and severally undertake
to indemnify and keep indemnified the Vendors against any losses,
liabilities, damages, costs and expenses suffered by the Vendors as a
result of or in connection with any breach of any of the Purchaser's
Warranties provided that the indemnity contained in this Clause shall
be without prejudice to any other rights and remedies of the Vendors
in relation to any such breach of the Purchaser's Warranties and all
such other rights and remedies are hereby expressly reserved to the
Vendors.
8.5
(1) Any claim by the Vendors in connection with the Purchaser's Warranties
(a "Purchaser's Warranty Claim") shall not be made unless the amount
of the damages in respect of such Purchaser's Warranty Claim exceeds
in aggregate the sum of US$50,000 but if the liabilities exceed that
sum the Purchaser shall (subject to other provisions hereof) be liable
for the whole of such liability and not merely the excess.
(2) No liability shall be attached to the Purchaser in respect of any
single Purchaser's Warranty Claim unless the amount of such
Purchaser's Warranty Claim shall exceed US$50,000.
8.6 The Vendors shall not be entitled to make any Purchaser's Warranty Claim
(1) if the claim would not have arisen but for a change in legislation
made after the date of Completion; and
(2) to the extent that the relevant matters, documents or information have
been disclosed to the Purchaser or its agent in the Vendors' Schedule
of Exceptions.
8.7 Where any of the Purchaser's Warranties are qualified as being "to
the best of the information, knowledge and belief of the Parent
and/or the Purchaser" or "so far as the Parent and/or the Purchaser
is aware" or by any other similar expression, such Purchaser's
Warranty is deemed to have been made or given to the best of
knowledge, information and belief of the Parent and/or the Purchaser
after making due and careful enquiry.
8.8 The maximum aggregate liability of the Parent and/or the Purchaser in
respect of all Purchaser's Warranty Claims shall not exceed the Sale
Shares Consideration. The Purchaser's Warranties shall survive
Completion but no Purchaser's Warranty Claims may be brought against
the Parent and/or the Purchaser in respect of any breach of
Purchaser's Warranties unless written notice of such Purchaser's
Warranty Claim specifying the particulars of such claim has been
received by the Parent and/or the Purchaser on or before the
expiration of six (6) months from the date of Completion.
8.9 The Parent and/or the Purchaser shall not be liable for breach of any
Purchaser's Warranties by reason of any act done by or omission or
default of any of the Vendors occurring after the execution of this
Agreement.
8.10 The Vendors acknowledge that the Parent and/or the Purchaser has not
yet delivered the Purchaser's Schedule of Exceptions to the Vendors
as contemplated by this Clause 8. The Parent and/or the Purchaser
shall deliver the Purchaser's Schedule of Exceptions at least 5 days
prior to Completion. The Vendors shall have the opportunity during
such 5 day period to review and comment on the Purchaser's Schedule
of Exceptions and the parties to this Agreement shall use their best
efforts to resolve any concerns or comments that the Vendors may have
with the Purchaser's Schedule of Exceptions.
9. GUARANTEE BY PARENT
9.1 In consideration of the Vendors entering into this Agreement, the
Parent hereby unconditionally and irrevocably guarantees to the 1st
Vendor, the 2nd Vendor, the 3rd Vendor, the 4th Vendor and the 5th
Vendor as a principal obligor and not merely as a surety, full due
punctual and complete performance by the Purchaser of all its
obligations under or arising out of or in connection with this
Agreement and undertakes to the Vendors that if and whenever the
Purchaser is in default, the Parent will duly and immediately perform
such obligations and indemnify and keep indemnified the Vendors
against all losses, damages, costs and expenses of whatsoever nature
which may be suffered or incurred by the Vendors or any of them by
reason of any default or delay on the part of the Purchaser in the
performance of the said obligations immediately upon receipt of the
demand in writing by any of the Vendors.
9.2 The Parent hereby irrevocably waives any right to require that the
Vendors brings proceedings first against the Purchaser.
9.3 The obligations of the Parent hereunder shall continue
notwithstanding Completion or completion of the Option and this
Clause shall remain in force until all obligations of the Purchaser
hereby guaranteed have been discharged in full. This Guarantee is in
addition to and shall not prejudice or be prejudiced by any other
guarantee, indemnity or other security or right against any third
party which the Vendors or any of them may have for the due
performance of the obligations concerned. This Guarantee will
continue to be effective or will be reinstated, as the case may be,
if at any time any sum which has become payable to the Vendors or any
of them hereunder and has been paid, has to be returned by the
Vendors or any of them upon the bankruptcy, liquidation or
organization of the Purchaser or otherwise.
9.4 The Parent shall not be exonerated or discharged nor shall its
liability be affected by any forbearance, whether as to payment,
time, performance or by any variation of this Agreement.
10. FURTHER ASSURANCE
10.1 The Vendors shall execute, do and perform or procure to be executed,
done and performed by other necessary parties all such further acts,
agreements, assignments, assurances, deeds and documents as the
Purchaser may require effectively to vest the registered and
beneficial ownership of the Sale Shares and the Option Shares in the
Purchaser free from all Encumbrances and with all rights now and
hereafter attaching thereto.
10.2 Both the Parent and the Purchaser jointly and severally covenant that
each of them shall execute and perform such further documents and
acts as the 1st Vendor, the 2nd Vendor, the 3rd Vendor, the 4th
Vendor or the 5th Vendor may reasonably require effectively to vest
the beneficial and registered ownership of (1) 6,000,000
Consideration Shares in the 1st Vendor or its nominee(s), (2)
7,500,000 Consideration Shares in the 2nd Vendor or its nominee(s),
(3) 3,750,000 Consideration Shares in the 3rd Vendor or its
nominee(s), (4) 11,250,000 Consideration Shares in the 4th Vendor or
its nominee(s) and (5) 7,500,000 Consideration Shares in the 5th
Vendor or its nominee(s) as respectively referred to in Clause 5.4,
all of which free from all Encumbrances (other than the Transfer
Restrictions) and with all rights now and hereafter attaching
thereto.
11. CONFIDENTIALITY AND ANNOUNCEMENTS
11.1 The Purchaser will, and will cause its associates and advisers to,
treat in confidence all non-public information regarding the Company
contained in written documents and materials ("Confidential
Material") which they may obtain from the Company or Media Creative
and in the event that Completion is not effected and this Agreement
is rescinded or otherwise terminated, will return such Confidential
Material to the Company or Media Creative. The Purchaser may disclose
Confidential Information if, and only to the extent required by
applicable law or exchange or automatic quotation system rules.
11.2 No public announcement or communication of any kind shall be made in
respect of the subject matter of this Agreement unless an
announcement is required pursuant to any applicable law or the
requirements of any recognised stock exchange or automatic quotation
system.
12. NOTICES
12.1 Any notice consent and the like required or permitted to be given or
served under this Agreement may be given or served by facsimile or by
leaving the same with or sending the same by registered post to the
party to or on which the same is to be given or served at the address
specified opposite the name of that party or at such other address as
that party shall specify by written notice given to the other party
as provided in this Clause:-
If to the 1st Vendor:
--------------------
Address: X00, 00/X., Xxxxxxxxx Xxxxx, Xx.00 Xxxxxxx Street,
Causeway Bay, Hong Kong.
If to the 2nd Vendor:
--------------------
Address: Xxxx 000, 0xx Xxxxx, Xxxx Xxxxx Xxxxxx, Xx.00 Granville
Road, Tsimshatsui, Kowloon, Hong Kong.
If to the 3rd Vendor:
--------------------
Address: Xxxx 000, 0xx Xxxxx, Xxxx Xxxxx Xxxxxx, Xx.00 Granville
Road, Tsimshatsui, Kowloon, Hong Kong.
If to the 4th Vendor:
--------------------
Address: Xxxx 0, Xxxxx X, 00xx Xxxxx, Xxx Xxxx Building, No.395
King's Road, Hong Kong.
If to the 5th Vendor:
--------------------
Address: Xxxx 000, 0xx Xxxxx, Xxx Xxxx Xxxx Buildng, Xxx.000-000
Xxx Xxxxx Xxxx, Xxxxxxx, Xxxx Xxxx.
If to the Purchaser or the Parent:
---------------------------------
Address: Room 1102, 11th Floor, Xx.000 Xxxxxxxx Xxxx, Xxxxx Xxxxx,
Xxxx Xxxx.
12.2 All communications shall be served by the following means and the
addressee of a communication shall be deemed to have received the
same within the time stated adjacent to the relevant means of
despatch:
Means of despatch Time of deemed receipt
Local mail or courier 24 hours
Facsimile on despatch
Air courier/Speedpost 3 days
Airmail 5 days
13. SEVERABILITY
13.1 If any part of this Agreement becomes invalid, illegal or
unenforceable the parties hereto shall in such an event negotiate in
good faith in order to agree the terms of a mutually satisfactory
provision to be substituted for the invalid, illegal or unenforceable
provision which as nearly as possible validly gives effect to their
intentions as expressed herein.
13.2 If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(1) the validity or enforceability in that jurisdiction of any other
provision of this Agreement; or
(2) the validity or enforceability in other jurisdictions of that or any
other provision of this Agreement.
14. CAPACITY
14.1 Each party to this Agreement hereby warrants to the other such party
that it has full capacity to enter into this Agreement and that such
entry does not in any way violate any provision of law, statute, rule,
regulation, judgement, writ, injunction, decree or order applicable to
it; that this Agreement does not conflict and will not result in the
breach or termination of any provision of, or constitute a default under
any mortgage, contract or other undertaking binding on it; and will not
result in the creation of any liability, charge or Encumbrance
whatsoever upon any of its properties or other assets save as
contemplated herein.
15. ENTIRE AGREEMENT
15.1 This Agreement constitutes the entire understanding between the parties
with respect to the subject matter hereof and supersedes all prior
agreements, negotiations (whether written or otherwise) and discussions
between the parties relating thereto.
16. AMENDMENTS
16.1 Save as expressly provided herein, no amendment or variation of this
Agreement shall be effective unless in writing and signed by the 1st
Vendor, the 2nd Vendor, the 3rd Vendor, the 4th Vendor, the 5th Vendor,
a duly authorised representative of each of the Parent and the
Purchaser.
17. WAIVER
17.1 The failure or delay of a party hereto to exercise or enforce any right,
power, privilege or remedy whatsoever, howsoever or otherwise conferred
upon it by this Agreement shall not be deemed to be a waiver of any such
right or operate so as to bar the exercise or enforcement thereof at any
time or times thereafter, nor shall any single or partial exercise of
any such right, power, privilege or remedy preclude any other or further
exercise thereof or the exercise of any other right or remedy. No waiver
shall be effective unless it is in writing. The rights and remedies
herein provided are cumulative and are not exclusive of any rights or
remedies provided by law.
18. COUNTERPARTS
18.1 This Agreement may, be signed in any number of counterparts, all of
which taken together shall constitute one and the same Agreement. Any
party may enter into this Agreement by signing any such counterpart.
19. ASSIGNMENT
19.1 This Agreement shall not be capable of being assigned by any party
without the written consent of the other parties.
20. TIME OF THE ESSENCE
20.1 Time shall be 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 the parties hereto, be
substituted therefor.
21. COSTS
21.1 The Parent shall bear all costs and expenses incurred in connection with
this Agreement and all documents incidental or relating to Completion.
22. GOVERNING LAW
22.2 This Agreement shall be governed by and construed in accordance with the
laws of Colorado in US.
23. JURISDICTION
23.1 Each of the parties to this Agreement submits to the jurisdiction of
any state or federal court sitting in the State of Colorado in US, in
any action or proceeding arising out of or relating to this Agreement
and agrees that all claims in respect of the action or proceeding may
be heard and determined in any such court. Each of the parties to
this Agreement waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waives any
bond, surety, or other security that might be required of any other
party with respect thereto.
23.2 The submission to the jurisdiction of the court referred to Clause
23.1 shall not (and shall not be construed so as to) limit the right
of the parties to this Agreement to take proceedings in any other
court of competent jurisdiction (including Hong Kong) nor shall the
taking of proceedings in any one or more jurisdictions preclude the
taking of proceedings in any other jurisdiction, whether concurrently
or not.
IN WITNESS whereof the parties have executed this Agreement the day
and year first before written.
THE 1ST VENDOR
SIGNED by XXXX XXX XXXXXXX, its )
director for and on behalf of WISE )
MEDIA GROUP INC. in the presence )
of: )
THE 2ND VENDOR
SIGNED by XXXX XXXX LUN, its )
director for and on behalf of CHINA )
MEDIA INC. in the presence of:- )
THE 3RD VENDOR
SIGNED by XXXX XXX OIL, its )
director for and on behalf of SINOWISE )
LIMITED in the presence of:- )
THE 4TH VENDOR
SIGNED by WAN KIN MAN (holder )
of Hong Kong Identity Card )
No.X000000(0)) in the presence of:- )
THE 5TH VENDOR
SIGNED by XXXX XX XXXX XXXXX )
ANASTASIA for and on behalf of TOP )
HARMONY HOLDINGS LIMITED in )
the presence of:- )
THE PARENT
SEALED with the Common Seal of )
the Parent and SIGNED by THOMSON )
XXX, its director in the presence of:- )
THE PURCHASER
SIGNED by XXX XXXX XXXXX )
XXXXXX, its director for and on behalf )
of ASIA GENIUS LIMITED in the )
presence of:- )
SCHEDULE 1
THE COMPANY
Part 1 - The Company
Name : New Unicorn Holdings Limited
Place of Incorporation : Samoa
Registered Office: : Xxxxxxxx Xxxxxxxx, X.X. Xxx 000,
Xxxx, Samoa
Director : Xxxx Xxx Whitney
Authorised Share Capital : US$1,000,000.00
Issued Share Capital : US$1,000,000.00 divided into
1,000,000 shares of US$1.00 each.
Shareholders : (1) Wise Media Group Inc. holding
50% of the issued share capital
of the Company;
(2) China Media Inc. holding 10% of
the issued share capital of
the Company;
(3) Sinowise Limited holding 5% of
the issued share capital of
the Company;
(4) Wan Kin Man holding 15% of the
issued share capital of the
Company; and
(5) Top Harmony Holdings Limited
holding 20% of the issued
share capital of the Company.
SCHEDULE 2
PART I
VENDORS' WARRANTIES
REPRESENTATIONS AND WARRANTIES REGARDING THE VENDORS
1. Authorization of Transaction. Each of the 1st Vendor, the 2nd Vendor, the 3rd
Vendor, the 4th Vendor and the 5th Vendor has full power and authority to
execute and deliver this Agreement and to perform its respective obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of each of the Vendors, enforceable in accordance with its terms and conditions.
2. Noncontravention. Neither the execution and the delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, will violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any governmental authority to which
either the 1st Vendor, the 2nd Vendor, the 3rd Vendor, the 4th Vendor or the 5th
Vendor is subject.
3. Brokers' Fees. None of the Vendors has any liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Purchaser or the
Parent could become liable or obligated.
4. Company Shares. The 1st Vendor owns beneficially and of record the 1st
Vendor's Shares, the 2nd Vendor owns beneficially and of record the 2nd Vendor's
Shares, the 3rd Vendor owns beneficially and of record the 3rd Vendor's Shares,
the 4th Vendor owns beneficially and of record the 4th Vendor's Shares and the
5th Vendor owns beneficially and of record the 5th Vendor's Shares, free and
clear of any Encumbrances, Taxes, options, warrants, purchase rights, contracts,
commitments, equities, claims, and demands.
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY AND MEDIA CREATIVE
5. Organization and Corporate Matters. The Company has been duly incorporated
and is validly existing under the laws of Samoa and is not in receivership or
liquidation, and that it has taken no steps to enter into liquidation and no
petition has been presented for winding up the Company. The copies of the
Memorandum and Articles of Association of the Company which have been produced
to the Purchaser are accurate and complete in all material respects. So far as
the Vendors are aware, the Company has complied with its Memorandum and Articles
of Association in all material respects and none of the activities, agreements,
commitments or rights of the Company is ultra xxxxx or unauthorised. The
statutory books and minute books of the Company has not received any application
or request for rectification of the register of members. So far as the Vendors
are aware, the business of Media Creative is not in contravention of any laws,
rules and regulations of Hong Kong.
6. Capitalization. The total issued share capital of the Company consists of 100
ordinary shares. All of the issued ordinary shares of the Company have been duly
authorized, are validly issued, fully paid and are held of record respectively
by the 1st Vendor, the 2nd Vendor, the 3rd Vendor, the 4th Vendor and the 5th
Vendor. There are no outstanding or authorized options, warrants, preemptive
rights, purchase rights, subscription rights, conversion rights, exchange
rights, or other contracts or commitments that could require the Company to
issue shares in its authorized share capital. There are no voting trusts,
proxies, or other agreements or understandings with respect to the voting rights
in the Company. The Company is the registered and beneficial holder of 9,999
shares in the issued share capital of Media Creative whereas the 1st Vendor is
the registered and beneficial holder of 1 share in the remaining issued share
capital of Media Creative.
7. Company and Media Creative Noncontravention. Neither the execution and the
delivery of this Agreement and the documents referenced herein, nor the
consummation of the transactions contemplated hereby, will violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any governmental authority to which the
Company or Media Creative is subject or any provision of the Company's or Media
Creative's constituent instruments.
8. No Company or Media Creative Brokers' Fees. The Company has no liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
9. Title to Assets. The Company has good and marketable title to, or a valid
leasehold interest in, the properties and assets used by it, located on its
premises, or acquired after the date thereof.
10. Subsidiaries. Other than Media Creative, the Company does not control or
have any equity participation in any other entity.
11. Accounts. The Accounts have been prepared using Hong Kong generally accepted
accounting principles based upon the books and records of Media Creative applied
on a consistent basis throughout the periods covered thereby, present fairly the
financial condition of Media Creative as of such dates on a consolidated basis
and the results of operations of Media Creative for such periods, are consistent
with the books and records of Media Creative (which books and records are
correct and complete).
12. Events Subsequent to Last Accounts Date. Since the Last Accounts Date, there
has not been any adverse change in the business, financial condition,
operations, results of operations, or future prospects of the Company. Without
limiting the generality of the foregoing, since that date:
(i) the Company has not sold, leased, transferred, or assigned any of
their respective assets, tangible or intangible, other than for a
fair consideration in the ordinary course of business;
(ii) the Company has not entered into any agreement, contract, lease,
pricing arrangement or license (or series of related agreements,
contracts, leases, arrangements and licenses) either involving
more than US$50,000 or outside the ordinary course of business;
(iii) the Company has not imposed or permitted any Encumbrance
upon any of its assets, tangible or intangible;
(iv) the Company has not made any capital expenditure (or series of
related capital expenditures) either involving more than US$50,000
or outside the ordinary course of business;
(v) the Company has not cancelled, compromised, waived, or released
any right or claim (or series of related rights and claims) either
involving more than US$50,000 or outside the ordinary course of
business;
(vi) there has been no change made or authorized in the constituent
instruments of the Company;
(vii)the Company has not made any loan to any of its directors,
officers, employees or shareholders outside the ordinary course
of business; and
(viii) the Company has not entered into any employment contract,
written or oral, or modified the terms of any existing such
contract.
13. Undisclosed Liabilities.
-----------------------
(i) Subject to 13(ii) below, the Company has no debts or liability.
(ii)Media Creative has no material liability (whether accrued or
unaccrued, contingent or not contingent, known or unknown), except for
(i) liabilities set forth in the Accounts and (ii) labilities which
have arisen after the Last Accounts Date in the ordinary course of
business (none of which results from, arises out of, relates to, is in
the nature of, or was caused by any breach of contract, breach of
warranty, tort, infringement, or violation of law).
14. Legal Compliance. The Company has complied with all applicable laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of all governmental authorities, and
no action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against the Company alleging any
failure so to comply.
15. Tax Matters. The Accounts contain appropriate provision for Taxation,
including deferred or provisional Taxation liable to be assessed on Media
Creative for the accounting period ended on the Last Accounts Date or for any
subsequent period (on the basis of the rates of tax and taxation statutes in
force at the Last Accounts Date) in respect of any transaction, event or
omission occurring or any income or profits or gains earned, accrued or received
by Media Creative on or prior to the Last Accounts Date or for which Media
Creative is accountable up to such date. Since the Last Accounts Date no further
liability or contingent liability for Taxation has arisen. As at the Last
Accounts Date, Media Creative has not received any demand for payment of any
taxes and are under no liability to pay any penalty or interest in connection
therewith.
16. Real Property. The Company does not own or has any interest in any real
property.
17. Trademarks and trade secrets. The business of the Company as now carried on,
does not, and is not likely to, infringe any intellectual property right of any
other person.
18. Trading and General Commercial Matters.
(i) Save as described in the Vendors' Schedule of Exceptions, the
Company has never entered into, and is not, as at the date
hereof, party to :-
(a) any contracts not made in the ordinary course of business;
(b) any contracts for the purchase of materials, supplies or equipment;
(c) any sales agency, distribution, or purchasing agreements; or
(d) any agency or partnership arrangement.
(ii) The Company is not in default under any provision of any contract
or agreement to which it is a party or by which it is bound and
no event has occurred which constitutes a default, or which with
the giving of notice or the passage of time or otherwise, would
constitute a default under such contract or agreement or which
would require the premature repayment of any loans or other
amounts due thereunder.
(iii)So far as the Vendors are aware, the Company is not the subject
of any official investigation or inquiry and there are no facts
which are likely to give rise to any such investigation or
inquiry.
(iv) So far as the Vendors are aware, the Company has at all times
carried on its businesses in compliance with all applicable laws
and regulations and the Company has not committed any criminal
offence or any tort or any breach of the requirements or
conditions of any statute, treaty, regulation, bye-law or other
obligation relating to the Company, or the carrying on of its
businesses and without prejudice to the generality of the
foregoing, the Company has obtained all licences and consents
necessary for the carrying on of its businesses, and all such
licences and consents are valid and subsisting and as far as the
Vendors are aware, there is no reason why any of them should be
suspended, cancelled or revoked.
19. Litigation.
(i) The Company is not involved as defendant in any civil, criminal
or arbitration proceedings (apart from those arising in the
ordinary course of business) or in any proceedings before any
tribunal and no such proceedings are threatened or pending.
(ii) There is no unsatisfied, court order or tribunal or arbitral
award outstanding against the Company and no distress, execution
or process has been levied on any part of their businesses or
assets.
20. Employment Matters.
(i) There is no past, existing, threatened or pending dispute
involving the Company or its employees and there is no
arrangement between the Company and any trade union or
organisation representing any such employees.
(ii) No circumstances have arisen under which the Company is required
to pay, or is likely to be required to pay, damages in relation
to the dismissal of or to reinstate or re-engage any employee,
former employee, officer or former officer of the Company.
(iii)Other than the directors and company secretary as set out in
Schedule 1, the Company has no directors, officers or employees.
(iv) There is no outstanding agreement or contract of service between
the Company and any of its directors, officers or employees.
(v) There are no share option or share incentive or similar schemes
for any officers (including directors of the Company) or
employees of the Company.
21. Disclosure. The representations and warranties contained in this Part I of
Schedule 2 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Part I of Schedule 2 not misleading.
SCHEDULE 2
PART IA
VENDORS' SCHEDULE OF EXCEPTIONS
To be provided at a later date in accordance with Section 7.11 of the Agreement.
SCHEDULE 2
PART II
PURCHASER'S WARRANTIES
REPRESENTATIONS AND WARRANTIES REGARDING THE PARENT AND THE PURCHASER
1. Organization, Qualification, and Corporate Power. Both the Purchaser and the
Parent are corporations duly organized, validly existing, and in good standing
under the jurisdictions of their respective incorporation. Except as set forth
in the Purchaser's Schedule of Exceptions, both the Purchaser and the Parent are
duly authorized to conduct business and are in good standing under the laws each
jurisdiction where such qualification is required. The Parent and the Purchaser
each have full corporate power and authority and all licenses, permits, and
authorizations necessary to carry on the businesses in which it is engaged and
to own and use the properties owned and used by it. Other than the Purchaser and
Protectserve Pacific Limited, the Parent has no subsidiaries and does not
control, directly or indirectly, or have any direct or indirect equity
participation in any entity. The Parent and the Purchaser have delivered to the
Vendors correct and complete copies of the Certificate of Incorporation and
bylaws of the Purchaser and the Parent (as amended to date). Neither the
Purchaser nor the Parent is in default under or in violation of any provision of
its Certificate of Incorporation or bylaws.
2. Capitalization.
(i) The entire authorized capital stock of the Parent consists of
200,000,000 shares of Common Stock US$0.001 par value per share,
of which 45,051,301 common shares are issued and outstanding as
at the date of this Agreement.
(ii) All of the issued and outstanding common shares have been duly
authorized, are validly issued, fully paid, and nonassessable and
have been issued in compliance with applicable laws, including,
without limitation, applicable federal and state securities laws.
(iii)Except as set forth in the Purchaser's Schedule of Exceptions,
there are no outstanding or authorized options, warrants,
preemptive rights, purchase rights, subscription rights,
conversion rights, exchange rights, or other rights or contracts
or commitments that could require the Parent to issue, sell, or
otherwise cause to become outstanding any of its capital stock,
nor are there any outstanding options, warrants or other rights
of any kind to acquire any additional shares of capital stock of
the Parent or securities exercisable or exchangeable for, or
convertible into, capital stock of the Parent, nor is the Parent
committed to issue any such option, warrant, right or security.
(iv) There are no agreements relating to the voting, purchase or sale
of capital stock (a) between or among the Parent and any of its
stockholders, (b) between or among the Parent and any third
party, or (c) to the best knowledge of the Parent between or
among any of the Parent's stockholders. The Parent is not a party
to any agreement granting any stockholder of the Parent the right
to cause the Parent to register shares of the capital stock of
the Parent held by such stockholder under the Securities Act.
(v) All of the outstanding capital stock of the Purchaser is
registered in the name of and beneficially owned by the Parent.
3. Noncontravention. Neither the execution and the delivery of this Agreement
and the documents referenced herein, nor the consummation of the transactions
contemplated hereby, will (i) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any governmental authority to which the Purchaser or the Parent is subject or
any provision of the charter or bylaws of the Purchaser or the Parent or (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any material agreement, contract, permit
or other arrangement to which the Parent or the Purchaser is a party or by which
it is bound or to which any of its assets is subject (or result in the
imposition of any Encumbrance upon any of its assets). Neither the Purchaser nor
the Parent needs to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any governmental authority in order for
the parties to this Agreement to consummate the transactions contemplated by
this Agreement except for filing required under applicable federal and state
securities laws. Without limiting the generality of the foregoing, each of the
Purchaser and the Parent has obtained all necessary consents, approvals,
waivers, permits and other authorizations required by it to enter into and
perform this Agreement and to carry out the transactions contemplated hereby.
4. Brokers' Fees. Neither the Purchaser nor the Parent has any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
5. Enforceability. This Agreement constitutes a valid and binding contract on
the Purchaser and the Parent and is enforceable against each of the Purchaser
and the Parent in accordance with its terms.
6. Consideration Shares.
(i) Upon delivery of 6,000,000 Consideration Shares pursuant to this
Agreement, the 1st Vendor will acquire valid legal title thereto,
free and clear of any Encumbrance other than the Transfer
Restrictions.
(ii) Upon delivery of 7,500,000 Consideration Shares pursuant to this
Agreement, the 2nd Vendor will acquire valid legal title thereto,
free and clear of any Encumbrance other than the Transfer
Restrictions.
(iii)Upon delivery of 3,750,000 Consideration Shares pursuant to this
Agreement, the 3rd Vendor will acquire valid legal title thereto,
free and clear of any Encumbrance other than the Transfer
Restrictions.
(iv) Upon delivery of 11,250,000 Consideration Shares pursuant to this
Agreement, the 4th Vendor will acquire valid legal title thereto,
free and clear of any Encumbrance other than the Transfer
Restrictions.
(v) Upon delivery of 7,500,000 Consideration Shares pursuant to this
Agreement, the 5th Vendor will acquire valid legal title thereto,
free and clear of any Encumbrance other than the Transfer
Restrictions.
(vi) The Parent has filed all reports, registration statements,
definitive proxy statements and other documents and all
amendments thereto and supplements thereof required to be filed
by it with the U.S. Securities and Exchange Commission (the "SEC
Reports"), all of which have complied in all material respects
with the applicable requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended and the rules and
regulations promulgated thereunder.
7. Absence of Certain Changes. Since the Last Accounts Date, there has not been
any event or condition of any character which has adversely affected, or may be
expected to adversely affect, the Parent's business or prospects.
8. Legal Proceedings. Except as disclosed in the SEC Reports, as of the date of
this Agreement, there is no legal, administrative, investigatory, regulatory or
similar action, suit, claim or proceeding which is pending or, so far as the
Parent and the Purchaser are aware, threatened against the Parent or the
Purchaser which, if determined adversely to the Parent and/or the Purchaser,
could have, individually or in the aggregate, a material adverse effect on the
business, assets, or prospects of the Parent or the Purchaser which in any
manner challenges or seeks to prevent, enjoin, alter or delay the transactions
contemplated by this Agreement.
9. Legal Compliance. Each of the Parent and the Purchaser has complied in all
material respects with all applicable laws (including rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder)
of all governmental authorities, and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, or notice has been filed or
commenced against either the Parent or the Purchaser alleging any failure so to
comply. Neither the Parent, the Purchaser nor any officer, director, employee,
consultant or agent of the Parent or the Purchaser has made, directly or
indirectly, any payment or promise to pay, or gift or promise to give or
authorized such a promise or gift, of any money or anything of value, directly
or indirectly, to any governmental official, customer or supplier for the
purpose of influencing any official act or decision of such official, customer
or supplier or inducing him, her or it to use his, her or its influence to
affect any act or decision of a governmental authority or customer, under
circumstances which could subject the Parent or the Purchaser or any officers,
directors, employees or consultants of the Parent or the Purchaser to
administrative or criminal penalties or sanctions.
10. Disclosure. The representations and warranties contained in this Part II of
Schedule 2 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Part II of Schedule 2 not misleading.
SCHEDULE 2
PART IIA
PURCHASER'S SCHEDULE OF EXCEPTIONS
To be provided at a later date in accordance with Section 8.10 of the Agreement.
Dated the day of 2003
WISE MEDIA GROUP INC.
(as 1st Vendor)
and
CHINA MEDIA INC.
(as 2nd Vendor)
and
SINOWISE LIMITED
(as 3rd Vendor)
and
WAN KIN MAN
(as 4th Vendor)
and
TOP HARMONY HOLDINGS LIMITED
(as 5th Vendor)
and
THE LINK GROUP INC.
(as Parent)
and
ASIA GENIUS LIMITED
(as Purchaser)
AGREEMENT FOR SALE AND PURCHASE AND
OPTION FOR PURCHASE OF
Certain Shares in
New Unicorn Holdings Limited
