Exhibit 2.2
DATED THIS 19TH DAY OF MAY 2000
Between
VIEWLOCITY
And
SALEM BIN XXXXXXXX XXXXXXX
And
TEO XXXX XXXX
And
XXXXXX XXX XXXXX XXXXXXXX XXXXXXX XX XXXXX
AND
SC21 PTE LTD
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ACQUISITION OF SHARES AGREEMENT
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ACQUISITION OF SHARES AGREEMENT
THIS AGREEMENT is made on May 19, 2000
BETWEEN:
1. VIEWLOCITY, INC. of 0000 Xxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, XX00000
XXX (the "Purchaser");
2. SALEM BIN XXXXXXX XXXXXXX (NRIC No. X0000000X) of 00 Xxxxxxx Xxxxx
Xxxxxxxxx 000000 ("SI");
3. TEO XXXX XXXX (NRIC No. X0000000X) of 00 Xx Xxxx Xxxxx Xxxxxxxxx 000000
("TKL");
4. XXXXXX XXX XXXXX XXXXXXXX XXXXXXX XX XXXXX (NRIC No. X0000000X) of 00
Xxxx Xxxxxx #00-00 Xxxxxxxxx 000000 ("RDS");
5. SC21 OPTIONS PTE LTD (Company Registration No. 199906239Z) of 00
Xxxxxxxx Xxxx #00-00 XXX Xxxxxxxx Xxxxxxxxx 000000 ("SOPL")
(SI, TKL, RDS and SOPL collectively, the "Vendors"); and
6. SC21 PTE LTD (Company Registration No. 199805598H) of 00 Xxxxxxxx Xxxx
#00-00 XXX Xxxxxxxx Xxxxxxxxx 000000 ("SC21").
RECITALS
(1) SC21 has been incorporated in Singapore to operate the business of
commercialising supply-chain management software and multimedia works that will
optimise inventory management, provide material visibility and improve overall
operation efficiency across supply webs.
(2) SC21 has an authorised and paid up capital, and all the Vendors' shares are
as listed in the Schedule 1 attached hereto.
(3) SC21 is the proprietor and beneficial owner of the intellectual properties,
particulars of which are set out in Schedule 2.
(4) The Vendors and the Purchaser have executed a Letter of Intent dated
_______________ whereby the Purchaser has agreed to buy the Sale Shares and the
intellectual property rights of SC21 subject to the results of the legal and
financial due diligence audit being satisfactory to the Purchaser and subject to
the terms and conditions of a definitve agreement.
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(5) At the said consideration to be paid by the Purchaser as hereinbefore
described, and subject to the terms and conditions mentioned herein, the Vendors
have agreed to sell, dispose or to convey to the Purchaser all the Sale Shares
and all the intellectual property rights of SC21.
NOW IT IS AGREED as follows:
1. DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires, the following
words or expressions shall have the following meanings:-
"Accounts" means the Audited Accounts and the management accounts;
"Audited Accounts" means the respective audited accounts of the SC21
for the financial year ended 31 December 1999;
"Balance Sheet Date" means the date as reflected under the balance
sheet of the Accounts;
"Business" means the business being operated by the SC21 as described
in Recital (1) above;
"Completion Date" means a date falling no later than seven (7) days
after the date of this Agreement, or such other date as the parties
hereto may otherwise agree in writing;
"Confidential Information" means all and any special and exclusive
information on operational, technical knowhow, secret processes or
systems which are used only by the SC21 in the conduct of its Business
and any further development of those same technical knowhow, secret
processes or systems;
"Disclosure Letter" means the letter as of the date of this Agreement
from the Vendors to the Purchaser disclosing:-
(a) information constituting exceptions to the warranties
hereinafter contained; and
(b) particulars of other matters hereinafter referred to;
"Dollars" and the sign "$" means the lawful currency of the United
States of America;
"Know-How" means all the intellectual property rights in the software,
operational methods, systems and other like items (including but not
limited to all source codes thereof) relating to the Business more
particularly set out in Schedule 2;
"Letter of Intent" means the letter of intent dated _________________
2000 signed by the Vendors and the Purchaser;
"MAXIMS Software" means the software and intellectual property rights
transferred by Nanyang Technological University to SC21 pursuant to
letter agreement dated 25 November 1998 between the said parties;
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"Related Company" means at any time, SC21 and/or (a) any corporation
which is the holding company of SC21 or the subsidiary of such holding
company; (b) the subsidiary of SC21 and (c) their respective
subsidiaries;
"Sale Shares" means the aggregate of the 100,000 issued and fully
paid-up ordinary shares of S$1.00 each in SC21 which are held by the
Vendors as set out in Schedule 1;
"Service Agreement" means the service agreement to be entered into
between RDS and SC21 in the form set out under Schedule 7 hereof
including any supplemental written agreement, variations or amendments
thereto, the contents of which have been expressly agreed between RDS
and the Purchaser prior to the execution of this Agreement;
"TAF" means Target Airfreight (Asia) Pte Ltd, a company duly
incorporated in Singapore.
"TAF Business" means the provision by TAF of physical logistics
services as well as the hosting of software applications related to
inventory visibility, track and trace, and warehouse management
systems. TAF Business is not and shall not at any time include the
development, licensing, sale or resale to third parties of software
applications or supply chain solutions similar to or incorporating any
function of (i) SC21 4 PLWeb, SC21 TrackWeb, or SC21 BackWeb as
described on Schedule 2 hereof, or (ii) future product offerings of
SC21, or (iii) present or future product offerings of the Purchaser.
"Taxation" means all forms of taxation whether of Singapore or
elsewhere in the world, past, present and future (including, without
limitation, capital gains tax, income tax, estate duty, stamp duty,
goods and services tax, customs and other import or export duties) and
all other statutory, governmental or state impositions, duties and
levies and all penalties, charges, costs and interest relating thereto;
"Terminated for Cause" means to be terminated from the employment under
the Service Agreement pursuant to clause 7.2 thereof;
"Voluntarily Cease Employment" means to resign or cease employment
under the Service Agreement purely by choice or own volition and not by
reason of mental or physical incapacity or death.
"Voluntarily Resign" means to resign or cease to be a director purely
by choice or own volition and not for any other reason including but
not limited to legal, mental or physical incapacity or death.
The sign "S$" means the lawful currency of Singapore.
1.2 Any reference to a statutory provision shall include such provision and
any regulations made in pursuance thereof as from time to time modified
or re-enacted whether before or after the date of this Agreement so far
as such modification or re-enactment applies or is capable of applying
to any transactions entered into prior to completion and (so far as
liability thereunder may exist or can arise) shall include also any
past statutory provisions or regulations (as from time to time modified
or re-enacted) which such provisions or regulations have directly or
indirectly replaced;
1.3 References to Recitals, Clauses or Schedules are to recitals, clauses
and schedules of this Agreement;
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1.4 Any reference to "completion" shall mean completion of the sale and
purchase of the Sale Shares under this Agreement; and
1.5 The headings are for convenience only and shall not affect the
interpretation hereof.
2. CONDITIONS PRECEDENT
2.1 The obligations of the Purchaser under this Agreement are conditional
upon:-
i. all approvals, consents and licences (whether governmental,
corporate or otherwise) for the transactions described or
contemplated herein having been obtained and not having been
revoked or amended and, where such approval is subject to
conditions, such conditions being acceptable to the Purchaser
and, to the extent that any such conditions are required to be
fulfilled on or before completion, they are so fulfilled;
ii. the Purchaser being satisfied with the results of the due
diligence exercise (legal, financial or otherwise) on SC21, in
particular, on the Know-How, as advised by legal counsel,
accountants or other professional advisers appointed by the
Purchaser;
iii. RDS executing the Service Agreement.
2.2 If any of such conditions are not fulfilled on or before completion and
such non-fulfilment is not waived by the party requiring fulfilment of
the condition precedent, this Agreement shall ipso facto cease and
determine and one party shall not have any claim against the other for
costs, damages, compensation or otherwise. The Vendors hereby jointly
and severally undertake to use their best endeavours to ensure the
satisfaction of all the conditions above set out in Clause 2.1.
3. CONSIDERATION
3.1 Subject to the terms and conditions contained in this Agreement, the
Purchaser shall purchase and the Vendors shall sell all that are
itemised and described in and under Clause 4 at a consideration the
particulars of which are set out in Clause 5.
4. THE SALE ITEMS
4.1 The description of the items sold to the Purchaser by the Vendors are :
(1) The legal and beneficial interests in the Sale Shares belonging to
the Vendors in the SC21 as described in SCHEDULE 1 herein.
(2) The full rights, title, interest, benefit and goodwill attaching to
the brand name of SC21 and the Know-How more particularly set out in
Schedue 2 hereto and all modifications, variations, and derivations
thereof which vest or which may otherwise accrue to SC21.
5. PURCHASE PRICE AND METHOD OF PAYMENT
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5.1 The consideration shall be paid by the Vendors in the following manner:
(1) Upon completion on the Completion Date and subject to the due
compliance with the terms and conditions herein:-
(a) the Purchaser shall pay an aggregate of $1,000,000.00
by individual bank drafts in favour of the Vendors in
the following proportions:
SI : $333,334.00
RDS : $333,333.00
TKL : $333,333.00
(b) the Purchaser shall issue without requiring payment
from the Vendors an aggregate of 750,000 common
shares of par value $0.01 each in the share capital
of the Purchaser in favour of the Vendors in the
following proportions:-
SI : 250,000
RDS : 250,000
TKL : 250,000
(2) On 31 December 2000 (the "Second Completion Date") and subject
to the due compliance with the terms and conditions herein,
the Purchaser shall pay an aggregate of $2,000,000 by
individual bank drafts in favour of the Vendors in the
following proportions:
SI : $666,668.00
RDS : $666,666.00
TKL : $666,666.00
(3) On the Second Completion Date, the Purchaser shall
additionally:-
(a) pay an aggregate of $1,000,000.00 by individual bank
drafts in favour of the Vendors in the proportions
set out in Clause 5.1(1)(a) above; and
(b) the Purchaser shall issue without requiring payment
from the Vendors an aggregate of 225,000 common
shares of par value $0.01 each in the share capital
of the Purchaser in favour of the Vendors in the
following proportions:-
SI : 75,000
RDS : 75,000
TKL : 75,000
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PROVIDED always that if RDS shall Voluntarily Cease
Employment, or TKL or SI shall Voluntarily Resign as director
of SC21, as the case may be, for the period commencing on the
date hereof up to and including the Second Completion Date,
then that person solely shall absolutely and irrevocably cease
to be entitled to their portion of the said payment/common
shares, and PROVIDED FURTHER that if RDS shall be Terminated
for Cause during the period commencing on the date hereof up
to and including the Second Completion Date, then his
entitlement to his portion of the said payment/common shares
shall be reduced proportionately having regard to the actual
period of service rendered by him prior to such termination.
(4) On 31 December 2001 (the "Third Completion Date"), the
Purchaser shall:-
(a) pay an aggregate of $1,000,000.00 by individual bank
drafts in favour of the Vendors in the proportions
set out in Clause 5.1(3)(a) above; and
(b) the Purchaser shall issue without requiring payment
from the Vendors an aggregate of 225,000 common
shares of par value $0.01 each in the share capital
of the Purchaser in favour of the Vendors in the
proportions set out in Clause 5.1(3)(b) above.
PROVIDED always that if RDS shall Voluntarily Cease Employment, or TKL
or SI shall Voluntarily Resign as director of SC21, as the case may be,
for the period commencing on the date hereof and up to and including the
Third Completion Date, then that person solely shall absolutely and
irrevocably cease to be entitled to their portion of the said
payment/common shares, and PROVIDED FURTHER that if RDS shall be
Terminated for Cause during the period commencing on the date hereof up
to and including the Third Completion Date, then his entitlement to his
portion of the said payment/common shares shall be reduced
proportionately having regard to the actual period of service rendered
by him prior to such termination.
5.2 In consideration of the Purchaser agreeing at the request of SOPL to
acquire the Sale Shares, SOPL hereby agrees, confirms and acknowledges
that the consideration payable by the Purchaser to SOPL for the
transfer of SOPL's portion of the Sale Shares (as detailed in Schedule
1) to the Purchaser under this Agreement shall be fully and adequately
satisfied by and upon the completion of the acquisition of the Sale
Shares by the Purchaser in accordance with the terms and conditions of
this Agreement, and that such completion of the acquisition of the Sale
Shares shall discharge the Purchaser from all and any further liability
in respect of the payment of any consideration to SOPL under this
Agreement and that SOPL hereby absolutely and irrevocably waives all
rights to the whole or any part of the consideration payable by the
Purchaser under Clause 5.1.
6. COVENANTS UP TO COMPLETION
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BY THE VENDORS
6.1 The Vendors hereby jointly and severally covenant and undertake to the
Purchaser that prior to completion and without the prior written
consent of the Purchaser:-
i. there shall be no extraordinary withdrawal of cash, deposits
or any other form of current assets from SC21;
ii. there shall be no removal or disposal of any of the fixed
assets of SC21 without the consent of the Purchaser;
iii. SC21 shall not incur any expenditure on capital account or
enter into any commitments to do so other than in the course
of running their day to day business;
iv. SC21 shall not borrow any money or make any payments out of or
drawings on its bank account(s) other than for the purposes
set out in Clause 6.1(i) above or for routine payments and in
the normal course of business;
v. SC21 shall not enter into any unusual contract or commitment
or (a) grant or agree to grant any lease or third party right
in respect of any of their properties or assets or assign or
agree to assign or otherwise dispose of the same, (b) make any
loan, or (c) enter into any leasing hire purchase or other
agreement or arrangements for payment on deferred terms;
vi. SC21 shall not declare make or pay any dividend or other
distribution or do or suffer anything which may render its
financial position less favourable than as at the date of this
Agreement;
vii. SC21 shall not grant or issue or agree to grant or issue any
mortgages charges debentures or other securities or give or
agree to give any guarantees or indemnities save and except by
agreement with the Purchaser, such agreement shall not be
unreasonably withheld;
viii. there shall be no change in the terms and conditions of
employment or pension benefits of any of SC 21 directors or
employees and SC21 shall not employ or terminate (other than
for good cause) the employment of any person except in the
ordinary course of business;
ix. SC21 shall not permit any of their insurances to lapse or do
or omit to do anything which would make any policy of
insurance void or voidable;
x. SC21 shall not create issue or grant any option in respect of
any class of share or loan capital or agree to do so;
xi. SC21 shall not in any way depart from the ordinary course of
their respective day-to-day business either as regards the
nature scope or the manner of conducting the same;
xii. none of the Vendors shall dispose of any interest in the Sale
Shares or any part thereof or grant any option over or
mortgage charge or otherwise encumber the Sale Shares or any
part thereof;
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xiii. none of the Vendors shall permit any of SC21 to pass any
resolution in general meeting save and except with the written
consent of the Purchaser, such consent not to be unreasonably
withheld;
xiv. the Vendors shall use their best endeavours to maintain the
trade and trade connections of SC21 and the Business and shall
not by any action omission default or neglect knowingly damage
or risk damage to the same.
6.2 Pending completion, the Vendors shall procure that the Purchaser or its
agents or representatives be given reasonable access to the properties
and to the books and records (whether statutory, managerial, financial
or otherwise) of SC21 and the Vendors shall upon request furnish such
information regarding the businesses and affairs of SC21 as the
Purchaser may reasonably require.
7. WARRANTIES AS TO TITLE
BY VENDORS
7.1 The Vendors hereby jointly and severally warrant and undertake to and
with the Purchaser and its successors in title (with the intent that
the provisions of this Clause shall continue to have full force and
effect notwithstanding completion) as follows:-
(a) that each Vendor is or will on the Completion Date be legally
and beneficially entitled to the Sale Shares;
(b) that the Sale Shares are or will on the Completion Date be
free from all and any charges, liens, pledges, trusts and
other encumbrances whatsoever and together with all rights now
or hereafter attaching to the Sale Shares; and
(c) that save as provided in the Disclosure Letter, the
information contained in Recitals (1) to (5) inclusive and all
Schedules, including but not limited to the warranties set out
in Schedule 3 of this Agreement, are true, complete and
accurate in all material respects.
BY PURCHASER
7.2 The Purchaser hereby warrant and undertake to and with the Vendors and
its successors in title (with the intent that the provisions of this
Clause shall continue to have full force and effect notwithstanding
completion) as follows:-
(a) that on the Completion Date, Second and Third Completion Date,
they will be legally and beneficially entitled to issue the
common shares to the Vendors; and
(b) that the said common shares are or will on the Completion
Date, Second and Third Completion Date be free from all and
any charges, liens, pledges, trusts and other encumbrances
whatsoever and together with full shareholder rights and all
rights now or hereafter attaching to them.
7.3 Each of the warranties, representations and undertakings in this
Agreement (including but not limited to those contained in the Recitals
and/or any of the Schedules) shall be separate and independent and
shall not be limited by anything in this Agreement. All warranties,
representations and undertakings given hereunder or pursuant hereto
shall not in any respect be
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extinguished or affected by completion and the benefits thereof may be
assigned in whole or in part by the Purchaser.
8. WARRANTIES AND UNDERTAKINGS
BY THE VENDORS
8.1 The Vendors hereby jointly and severally undertake, represent and
warrant to and with the Purchaser and its successors in title (with the
intent that the provisions of this Clause shall continue to have full
force and effect notwithstanding Completion):-
(a) that each of the Vendors has and will have full power and
authority to enter into and perform this Agreement and the
same shall constitute valid and binding obligations of each of
the Vendors in accordance with its terms;
(b) in relation to SC21 in the terms set out in Schedule 3 subject
only to (i) any exceptions disclosed in the Disclosure Letter
or expressly provided under the terms of this Agreement or
(ii) any matter or thing hereafter done or omitted to be done
pursuant to this Agreement or otherwise at the request in
writing or with the approval in writing of the Purchaser; and
(c) that at all times after completion and prior to the
appointment by the Purchaser of any new directors onto the
board of SC21 following completion, none of the Vendors shall
permit the board of directors of SC21 to pass any board
resolution in board meeting or undertake any corporate action
on behalf of SC21.
8.2 The Vendors further jointly and severally undertake, represent and
warrant to and with the Purchaser and its successors in title that
without prejudice to Clauses 7.1 and 7.2:-
(a) save as provided in the Disclosure Letter, all
representations, warranties and undertakings contained in this
Agreement (including but not limited to those contained in the
Recitals and/or any of the Schedules) will be fulfilled down
to and will be true and correct at the Completion Date in
respects as if they had been entered into afresh at the
Completion Date; and
(b) if after signing of this Agreement and before the Completion
Date any event shall occur or matter arises which results or
may result in any of the said representations, warranties and
undertakings being untrue, misleading, incorrect or inaccurate
in any material respect at Completion, the Vendors shall
immediately notify the Purchaser in writing thereof prior to
the Completion Date and shall make any investigation
concerning the event or matter which the Purchaser may
reasonably require.
8.3 No information, knowledge, thing or matter relating to the Vendors of
which the Purchaser has knowledge (actual or constructive) or could
have discovered (and notwithstanding any investigation made by or on
behalf of the Purchaser into the affairs of the Vendors whether before
or after the execution of this Agreement or the Completion Date, shall
prejudice any claim by the Purchaser under any representation, warranty
or undertaking by the Vendors in this Agreement or operate to reduce
any amount recoverable by the Purchaser, and
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completion shall not in any way constitute a waiver of any of the
Purchaser's rights and remedies.
8.4 The representations and warranties given under this Clause shall be
separate and independent and save as expressly otherwise provided shall
not be limited by anything in this Agreement and shall not be affected
by the due diligence investigation of SC21 by the Purchaser. The
benefits of the said representations and warranties shall not in any
respect be extinguished or affected by completion.
8.5 If prior to the Completion Date, it shall be found that any of the
representations, warranties and undertakings on the part of the Vendors
under this Agreement (including but not limited to those contained in
the Recitals and/or any of the Schedules) has not in any material
respect been carried out or complied with or otherwise untrue,
misleading, incorrect or inaccurate, the Purchaser shall be entitled by
notice in writing to the Vendors to rescind this Agreement but failure
to exercise this right shall not constitute a waiver of any other
rights of the Purchaser or its successors in title arising out of any
breach of representation, warranty or undertaking.
8.6 Rescission of this Agreement under Clause 8.5 above shall not
extinguish any right to damages or any other right or remedy which the
Purchaser or its successors in title may be entitled to in respect of
any breach of this Agreement save that the maximum liabilty of the
Vendors shall be limited to the aggregate of the purchase consideration
received by the Vendors from the Purchaser (including any common shares
to be issued by the Purchaser under this Agreement) plus
S$1,000,000.00.
BY THE PURCHASER
8.7 The Purchaser hereby represents and warrants to and with the Vendors
and their successors in title (with the intent that the provisions of
this Clause shall continue to have full force and effect
notwithstanding Completion):-
(a) that the Purchaser has and will have full power and authority
to enter into and perform this Agreement and the same shall
constitute valid and binding obligations of the Purchaser in
accordance with its terms;
(b) all representations, warranties and undertakings contained in
this Agreement (including but not limited to those contained
in the Recitals) will be fulfilled down to and will be true
and correct at the Completion Date in respects as if they had
been entered into afresh at the Completion Date;
(c) if after signing of this Agreement and before the Completion
Date any event shall occur or matter arises which results or
may result in any of the said representations, warranties and
undertakings by the Purchaser being untrue, misleading,
incorrect or inaccurate in any material respect at Completion,
the Purchaser shall immediately notify the Vendors in writing
thereof prior to the Completion Date and shall make any
investigation concerning the event or matter which the Vendors
may reasonably require.
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(d) No information, knowledge, thing or matter relating to the
Purchaser of which the Vendors have knowledge (actual or
constructive) or could have discovered (and notwithstanding
any investigation made by or on behalf of the Vendors into the
affairs of the Purchaser whether before or after the execution
of this Agreement or the Completion Date, shall prejudice any
claim by the Vendors under any representation, warranty or
undertaking by the Purchaser in this Agreement or operate to
reduce any amount recoverable by the Vendors, and completion
shall not in any way constitute a waiver of any of the
Vendors' rights and remedies.
(e) The representations and warranties given under this Clause
shall be separate and independent and save as expressly
otherwise provided shall not be limited by anything in this
Agreement. The benefits of the said representations and
warranties shall not in any respect be extinguished or
affected by completion.
(f) If prior to the Completion Date, it shall be found that any of
the representations, warranties and undertakings on the part
of the Purchaser under this Agreement (including but not
limited to those contained in the Recitals) has not in any
material respect been carried out or complied with or
otherwise untrue, misleading, incorrect or inaccurate, the
Vendors shall be entitled by notice in writing to the
Purchaser to rescind this Agreement but failure to exercise
this right shall not constitute a waiver of any other rights
of the Vendors or their successors in title arising out of any
breach of representation, warranty or undertaking.
(g) Rescission of this Agreement under Clause 8.7 above shall not
extinguish any right to damages or any other right or remedy
which the Vendors or their successors in title may be entitled
to in respect of any breach of this Agreement save that the
maximum liabilty of the Purchaser shall be limited to the
aggregate of the purchase consideration received by the
Vendors from the Purchaser (including any common shares to be
issued by the Purchaser under this Agreement) plus
S$1,000,000.00.
9. INDEMNITY
9.1 The Vendors shall indemnify the Purchaser for all loss, damage, claims
and other liabilities suffered or incurred by the Purchaser on account
of or arising out of any breach of the warranties, representations or
undertakings in the Agreement save that the maximum liabilty of the
Vendors shall be limited to the aggregate of the purchase consideration
received by the Vendors from the Purchaser (including any common shares
to be issued by the Purchaser under this Agreement) plus
S$1,000,000.00.
9.2 The Purchaser shall indemnify the Vendors for all loss, damage, claims
and other liabilities suffered or incurred by the Vendors on account of
or arising out of any breach of the warranties, representations or
undertakings in the Agreement save that the maximum liability of the
Purchaser shall be limited to the aggregate of the purchase
consideration received by the Vendors from the Purchaser (including any
common shares to be issued by the Purchaser under this Agreement) plus
S$1,000,000.00.
10. COMPLETION MATTERS
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10.1 Subject as hereinafter provided, completion shall take place on the
Completion Date at ____________________________________________ at or
about ____ am/pm (or at such other place, date and time as the parties
may agree in writing) when all transactions mentioned in this Clause 10
shall take place.
10.2 On completion, the Vendors shall deliver to the Purchaser:-
(a) satisfactory evidence (if any) of the due fulfilment of all
the conditions specified in Clauses 2.1 above, including but
not limited to the delivery of the original signed letters of
waiver of transfer restrictions and rights of pre-emption from
all parties having such rights in relation to the Sale Shares
(whether pursuant to SC21's articles of association or any
other document whatsoever);
(b) duly completed and executed transfer(s) of the Sale Shares in
favour of the Purchaser or as it may direct, together with the
original share certificate(s) in respect of the Sale Shares;
(c) a sworn statutory declaration (or where the Inland Revenue
Authority of Singapore ("IRAS") has stipulated that a
confirmatory letter may be given in lieu of a statutory
declaration, such a letter) in the form currently prescribed
by the IRAS for the purposes of determining the payment of
stamp duty, if any, by the Purchaser in respect of the Sale
Shares;
(d) a duly executed and completed requisition form or any other
documents which are currently stipulated by the IRAS to be
presented to the Stamp Duty Branch of the IRAS for the
stamping of any share transfer forms;
(e) duly executed Stock Restriction Agreement in respect of the
shares of common stock of the Purchaser in the form set out
under Schedule 4 hereof;
(f) all items listed under Schedule 5 hereof;
(g) the original signed letter agreement from Nanyang
Technological University to the Purchaser in the form and
content set out under Schedule 6 hereof;
(h) the original signed Service Agreement; and
(i) the original signed resignation letter from RDS in relation to
his resignation as director of SC21 with effect from the
Completion Date.
10.3 On completion, the Vendors shall also procure the passing of board
resolutions of SC21 inter alia:-
(a) approving the registration of the transfers of the Sale Shares
(subject to the transfers being duly stamped);
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(b) authorising the signing of this Agreement and all the
documents required thereunder;
(c) approving the resignation of RDS as director of SC21 and
appointing such persons (subject to the maximum number
permitted by the articles of association of SC21) as the
Purchaser may nominate as directors of SC21;
(d) if required, revoking all existing authorities to bankers in
respect of the operation of the bank accounts of SC21 and
giving authority in favour of such persons as the Purchaser
may nominate to operate such accounts;
and the Vendors shall deliver to the Purchaser duly certified copies of
such resolutions.
10.4 On completion, the Purchaser shall procure the passing of its board
resolutions authorising the signing of this Agreement and all documents
required thereunder and shall deliver to the Vendors duly certified
copies of such resolutions.
10.5 Against compliance with each of the foregoing provisions in this
Clause, the Purchaser shall pay or deliver to the Vendors the purchase
consideration in the manner as provided in Clause 5.1.
10.6 If any document required to be delivered to the Purchaser as set out in
this Clause is not delivered or if delivered is not authorised, valid
or effective for its purpose for any reason whatsoever or if in any
respect the provisions of Clauses 10.2 and 10.3 are not fully complied
with, the Purchaser shall be entitled (in addition to and without
prejudice to all other rights or remedies available to the Purchaser
but subject to the same limitation of the Vendors' liability as in
Clause 8.6) to elect to rescind this Agreement or to effect completion
so far as practicable having regard to the defaults which have occurred
or to fix a new date for completion in which case the provisions of
this Clause shall apply to the deferred completion.
11. NO MATERIAL CHANGES IN OPERATION, MANAGEMENT OR BUSINESS
11.1 From the date of execution of this Agreement until the Completion Date
or the day this Agreement is aborted or terminated, the Vendors shall
not make any material change to the operations or management of SC21 or
to the nature of their Business without the consent of the Purchaser.
11.2 "Material changes" shall mean decisions and implementation of those
decisions which will substantially change the character and style of
the management, operations and of the Business of SC21 or to materially
affect the financial position and standing of SC21 or to make
substantial changes to the budget or expenditure of the said companies.
12. CONFIDENTIALITY
13
12.1 The parties agree, acknowledge and confirm that the confidentiality and
disclosure requirements set out under the Letter of Intent shall
continue to have full force and binding effect until the Completion
Date.
12.2 After the completion of the sale, the Vendors shall not divulge or
disclose to anyone not having the beneficial interest, duty or
responsibility to receive any such Confidential Information unless the
same has been deemed as public knowledge or unless authorised by the
Purchaser or its agents.
13. NON COMPETITION
13.1 The Vendors hereby severally agree and undertake that each of them
shall not for the period commencing from the Completion Date up to and
including 31 December 2001:
(a) within any jurisdiction or marketing area in which SC21 or any
Related Company is doing business, directly or indirectly own,
manage, operate, control, be employed by or participate in the
ownership, management, operation or control of, or be
connected in any manner with, any business of the type and
character engaged in and competitive with that conducted by
SC21 or any Related Company. For these purposes, ownership of
securities not exceeding 5 per cent of any class of securities
of a public company listed on a stock exchange shall not be
considered to be competition with SC21 or any Related Company;
or
(b) persuade or attempt to persuade any potential customer or
client to which SC21 or any Related Company has made a
presentation, or with which SC21 or any Related Company has
been in negotiations or having discussions, not to deal with
or hire SC21 or any Related Company or to deal with or hire
another company; or
(c) solicit for himself or any person other than SC21 or any
Related Company the business of any supplier, customer or
client of SC21 or any Related Company, or was its supplier,
customer or client within 1 year prior to the Completion Date;
or
(d) persuade or attempt to persuade any employee of SC21 or any
Related Company, or any individual who was an employee during
the period of 1 year prior to the Completion Date, to leave
SC21's or any Related Company's employ, or to become employed
by any person other than SC21 or any Related Company.
13.2 With respect to TKL, the obligations pursuant to this Clause 13 shall
not affect the TAF Business.
13.3 The Vendors severally acknowledge and agree that:
14
(a) each of the sub-clauses of Clause 13.1 constitutes an entirely
separate and independent restriction;
(b) the duration, extent and application of each of the
restrictions set out in Clause 13.1 are reasonable and no
greater than is necessary for the protection of the interests
of SC21 or any Related Company;
(c) if any such restriction set out in Clause 13.1 shall be
adjudged by any court of competent jurisdiction to be void or
unenforceable as going beyond what is reasonable in the
circumstances for the protection of the interests of SC21 or
any Related Company but would be valid if a part of the
wording thereof was deleted and/or the period thereof was
reduced and/or the area dealt with thereby was reduced, the
said restriction shall apply within the jurisdiction of that
court with such modifications as may be necessary to make it
valid and effective;
(d) if any of the Vendors violate any of the restrictive covenants
under Clause 13.1 and SC21 brings legal action for injunctive
or other relief hereunder, SC21, as a result of the time
involved in obtaining the relief, will be deprived of the
benefit of the full limitation period of the restrictions
referred to in this clause. Accordingly, the aforesaid period
of the restrictions shall be deemed to have the full duration
as aforesaid, computed from the date relief is granted, but
reduced by the time between the period when the restriction
began to run at the Completion Date and the date of the first
violation of the restriction; and
(e) if the legal remedies for breach of the restrictions set forth
in Clause 13.1 are inadequate then, in addition to all other
remedies available to SC21, in the event of a breach or a
threatened breach of any such restriction, SC21 may obtain
temporary, preliminary and permanent injunctions against any
and all such actions.
14. RELEASE AND INDULGENCE BY THE PURCHASER
Any liability to the Purchaser under this Agreement may in whole or in
part be released, compounded or compromised, or time or indulgence
given, by the Purchaser in its absolute discretion without in any way
prejudicing or affecting its rights against the Vendors provided always
that no failure, delay or forbearance on the part of the Purchaser in
exercising any right or power in this Agreement shall operate as a
waiver thereof and no waiver on the part of the Purchaser of any breach
of any term or condition in this Agreement by the Vendors shall
prejudice the rights of the Purchaser in respect of any other or
subsequent breach of any term or condition in this Agreement.
15. CONTINUING EFFECT OF AGREEMENT
15
All provisions of this Agreement shall so far as they are capable of
being performed or observed continue in full force and effect
notwithstanding completion except in respect of matters then already
performed.
16. NON ASSIGNMENT
Save as provided in Clause 7.3, none of the parties may assign or
transfer all or part of its rights or obligations under this Agreement
without the prior written consent of the other party.
17. PREVALENCE OF AGREEMENT
In the event of any inconsistency between the provisions of this
Agreement and the respective memoranda and articles of association of
SC21 or the Letter of Intent, the provisions of this Agreement shall as
between the parties hereto prevail and the Vendors shall forthwith
cause such necessary alterations to be made to such memoranda and
articles of association as are required so as to remove such
inconsistency.
18. TIME OF ESSENCE
Any time or period mentioned in any provision of this Agreement may be
extended by mutual agreement between the parties hereto but as regards
any time, date or period originally fixed or any time, date or period
so extended as aforesaid, time shall be of the essence.
19. COSTS
Each party shall bear all legal and other costs and expenses incurred
by it personally in connection with this Agreement and the transfer of
the Sale Shares except for stamp duty on the transfer of the Sale
Shares which shall be borne by the Purchaser.
20. NOTICES
Any notice, communication or demand required to be given, made or
served under this Agreement shall be in writing in the English language
and delivered by hand or sent by prepaid registered post or by fax or
telex to the intended recipient thereof at the following address, fax
or telex number or to such other address, fax or telex number as may
from time to time be notified (in accordance with this Clause) by the
relevant party to the other parties:
(a) Vendors: x/x Xxxxx Xxxxxxx,
00
Xxxxx Xxxxxxx and Partners
00 Xxxxxxxx Xxxx
#00-00 XXX Xxxxxxxx
Xxxxxxxxx 000000
Fax: 00-000-000-0000
(b) Purchaser: Viewlocity Inc.,
Attn: Xx Xxxx Xxxxxxxxxxx
0000 Xxxxxxxx Xxxx,
Xxxxx 0000,
Xxxxxxx, XX 00000, XXX
Fax: 000-0-000 000 0000
Any such notice, communication or demand shall be deemed to have been
duly served (if given or made by fax or telex) immediately on such
transmission or (if given or made by letter) two days after posting and
in proving the same, it shall be sufficient to produce the fax or telex
report or to show that the envelope containing the same was duly
addressed, stamped and posted.
21. FURTHER ASSURANCE
The parties shall execute and do and procure all other persons if
necessary, to execute and do all such further deeds, assurances, acts
and things as may be reasonably required whether before or after
completion so that full effect may be given to the terms and conditions
of this Agreement.
22. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of Singapore.
17
AS WITNESS TO THIS AGREEMENT the parties have signed this agreement on the date
first written above.
Signed by )
for and on behalf of Viewlocity, Inc. ) /s/ Xxxxxxx Xxxxxx
in the presence of )
Signed by Salem bin Xxxxxxx Xxxxxxx ) /s/ Salem bin Xxxxxxx Xxxxxxx
the presence of )
Signed by Teo Xxxx Xxxx ) /s/ Teo Xxxx Xxxx
the presence of )
Signed by Xxxxxx Xxx Xxxxx )
Trindade Menezes Xx Xxxxx ) /s/ Xxxxxx Xx Xxxxx
the presence of )
Signed by )
for and on behalf of ) /s/ Salem bin Xxxxxxx Xxxxxxx
SC21 Options Pte Ltd )
the presence of )
Signed by )
for and on behalf of ) /s/ Salem bin Xxxxxxx Xxxxxxx
SC21 Pte Ltd )
the presence of )
18
SCHEDULE 1
CAPITAL AND SHAREHOLDINGS STRUCTURE OF SC21
AUTHORISED CAPITAL : 100,000 of S$1.00 ordinary shares
PAID UP CAPITAL : S$100,000 of 100,000 ordinary shares
SHAREHOLDERS AND (PERCENTAGE
OF SHARES HELD) :
------------------------------------------------ --------------------------- ---------------------------
Salem Bin Xxxxxxxx Xxxxxxx 20,000 ordinary shares* 20%
------------------------------------------------ --------------------------- ---------------------------
Teo Xxxx Xxxx 20,000 ordinary shares* 20%
------------------------------------------------ --------------------------- ---------------------------
Xxxxxx Xxx Xxxxx Xxxxxxxx Xxxxxxx Xx Xxxxx 20,000 ordinary shares* 20%
------------------------------------------------ --------------------------- ---------------------------
SC21 Options Pte Ltd 40,000 ordinary shares* 40%
------------------------------------------------ --------------------------- ---------------------------
* REFERS TO THE SALE SHARES
19
SCHEDULE 2
DETAILED DESCRIPTION OF KNOW-HOW
The SC21 SupplyWeb for intelligent supply chain solutions consisting of 3 webs
namely :
- SC21 4PLWeb
- SC21 TrackWeb
- SC21 BackWeb
THE SC21 4PLWEB CONSISTING of 3 main modules:
- The Unique System Administration module which provides definition of
participating organisations and members within the organisations and
also provides secure access rights and levels
- The Demand Management Module which houses the information for tracking
of customer orders and supplier commitments
- The Order Fulfillment Module which manages the information for
fulfilling of orders upon arrival at the 3PL or customer warehouse and
post delivery activities such as Sales Orders, Delivery Orders and
Consumption Orders
THE SC21 TRACKWEB CONSISTING of the facility to track goods shipments by
enabling the exchange of information along the shipment chain allowing the
consignee to know the status of an order at any point in time.
THE SC21 TRACKWEB encompasses subsystems to capture information about Shipment
Tasks, Shipment Schedules, Goods Reception by 3PL company, Inventory Management,
Location and Item Management.
THE SC21 BACKWEB is a one-stop facility for:
- Monitoring of inventory levels at distribution centres and management
of customer orders from call centres,
- Automation of the replenishment of stocks at the staging level for
maintenance of safe stock levels at distribution centres
- Tracking and tracing of movement of goods from manufacturing sites to
the staging levels
20
SCHEDULE 2 (CONTINUED)
DESCRIPTION OF MAXIMS SUPPLY CHAIN MANAGEMENT SYSTEM
MAXIMS is an enterprise planning and optimisation suite state of tools that is
essentially based on the concepts of discrete event simulation, linear
programming and heuristic business rules.
The suite encompasses facilities for enterprise network topology design, supply
chain co-ordination, clustered planning for materials planning, manufacturing
planning and distribution planning. Coupled with planning is a point to point
supply chain execution system.
The planning and design subsystem, based on discrete event simulation is in the
form of value added templates to the ARENA simulation software from Systems
Modelling Inc. The heuristic business rules and supply chain co-ordination
modules are based on proprietary PhD & theses. The execution module is the
precursor to the end-to-end supply web. All of the aforementioned modules are
inventory visibility solutions for manufacturing centric enterprises.
21
SCHEDULE 3
WARRANTIES BY THE VENDORS IN RELATION TO
THE COMPANY * UNDER CLAUSE 8
* THE CONTEXT OF "THE COMPANY" HEREIN WILL REFER TO "SC21"
The Vendors hereby jointly and severally represent and warrant to the Purchaser
and/or their nominees as follows:
1. INFORMATION
The Recitals are to the best of the Vendors' knowledge and
personal belief true and correct in all aspects and to the same
extent, all information which has been given by the Vendors to the
Purchaser or to the Purchaser's representatives in the course of
negotiations leading to this Agreement and all information
contained in the Accountant's Report and other Documents were when
given and are true, complete and accurate TO THE BEST OF the
Vendors' personal belief and knowledge.
2. ORGANISATION
The Company is duly incorporated and validly existing under the
laws of Singapore and has the power and authority to own, lease
and operate all its properties and to carry on its business as its
is now being conducted. The corporate minute books of the Company
which the Vendors have made available to the Purchaser on or prior
to completion are complete and correct and will reflect accurately
as at completion, all corporate actions of the Company requiring
the approval of its board of directors or shareholders prior to
completion.
3. COPIES OF ACCOUNTS, MEMORANDUM AND ARTICLES, ETC
(a) The copies of the Accounts and other financial
statements of the Company delivered to the Purchaser
are true copies.
(b) The copies of the memorandum and articles of
association or other like documents of the Company
delivered to the Purchaser are complete and accurate
and fully set out the rights and restrictions attaching
to each class of share capital of the Company to which
they relate.
(c) All the accounts, books, ledgers, financial and other
records of any kind whatsoever ("the records") of the
Company in its possession or control have been properly
and accurately kept and completed. They contain, give
and reflect a true and fair view of its business and
trading transactions and its financial, contractual,
business and trading positions; and do not contain any
material inaccuracies or discrepancies.
22
(d) The statutory books (including all registers and minute
books) of the Company are in its possession or control.
They have been properly kept and contain an accurate
and complete record of the matters which should be
dealt with in those books.
4. THE ACCOUNTS
4.1 (a) The Audited Accounts have been prepared in accordance
with the laws of Singapore and on a consistent basis
in accordance with proper accounting principles,
standards and practices generally accepted in
Singapore so as to give a true and fair view of the
state of affairs of the Company as at the Balance
Sheet Date and of the profit or loss for the period
concerned.
(b) The Audited Accounts as at the date of the Agreement:
(i) Comply with the requirements of the Companies
Act (Cap.50);
(ii) Are accurate in all material respects and show a
true and complete and fair view of the state of
affairs financial position assets and
liabilities of the Company and of its results
for the financial period ending on the Balance
Sheet Date;
(iii) As at the Balance Sheet Date are not affected by
any unusual or non-recurring items;
(iv) Make full provision for depreciation of the
fixed assets of the Company having regard to
their original cost and estimated life;
(v) Make due provision for any bad or doubtful
debts;
(vi) Fully disclose all assets of the Company as at
the Balance Sheet Date; and
(vii) Set out correctly all such reserves or
provisions for Taxation as are necessary on the
basis of the rates of tax now in force to cover
all Taxation (present and future) in respect of
any transaction occurring prior to the Balance
Sheet Date liable to be assessed on the Company
or for which the Company is accountable up to
such date.
(c) In the Audited Accounts:
(i) any slow moving stock has been written down
appropriately and redundant obsolete or unsaleable stock
and irrecoverable work-in-progress costs have been wholly
written off and
(ii) the value attibuted to the remaining stock new
materials and work-in-progress does not exceed the lowest
of cost (on a first in first out valuation) or net
realisable value or replacement price at the Balance Sheet
Date and
(iii) the same basis was adopted for the valuation of
stock and work-in-progress as had been adopted in the
preparation of all audited accounts of the Company laid
before the Company in general meeting for the financial
periods ending prior to the date of this Agreement or for
each accounting period since incorporation.
23
(d) All liabilities or outstanding capital commitments of the
Company as at the Balance Sheet Date have been included in
the Audited Accounts by way of full provision or reserve or
(in the case of such a liability as was contingent
unquantified or disputed) by way of note stating the
maximum amount which has been or could be claimed and the
best estimate of the directors (after taking all relevant
professional advice) of the likelihood of such a claim
materialising or being successful.
(e) No asset of the Company has been acquired for any
consideration in excess of its market value at the date of
is acquisition or otherwise than by way of bargain at arm's
length.
(f) Each of the book debts shown in the Audited Accounts and
such other book debts relating to the period up to and
including the Completion Date will realise in the normal
course of collection their nominal value less the value
attributed to any reserve for bad or doubtful debts
included in the Audited Accounts and none of the book debts
is subject to any counter-claim or set-off.
(g) No event has occurred during the period covered by the
Audited Accounts that has resulted in the profits of the
Company in respect of such period being abnormally high or
low.
4.2 (a) The management accounts:
(i) have been prepared on a basis wholly consistent with
that warranted as adopted in the preparation of the Audited
Accounts and
(ii) are accurate in all material respects and show a true
and fair view of the assets and liabilities of the Company
and of its results for the financial period ending on the
Completion Date and
(iii) make full provision or reserve for all liabilities
and other matters warranted as provided for or reserved in
the Audited Accounts such that the Company has no
liabilities of any nature whatsoever other than those
disclosed or provided for in the management accounts.
4.3 The accounting and other books ledgers financial and other
records of the Company :-
(i) Are in its possession;
(ii) have at all times been properly and fully written up;
(iii) accurately present and reflect in accordance with
generally accepted accounting principles and standards and
the Companies Act (Cap.50) all of the transactions entered
into by the Company or the transactions to which the
Company has been a party and its financial contractual and
trading position; and
(iv) have been held for the periods required by the
Companies Act (Cap.50).
5. CHANGES SINCE BALANCE SHEET DATE
The value of the net tangible assets of the Company completion
determined in accordance with
24
the same accounting basis and policies as those applied in the
Accounts will not be less than the net tangible assets of the
Company at the Balance Sheet Date as shown in the Accounts.
Since the Balance Sheet Date as regards the Company:
(i) there has been no material adverse change (nor is any such
material change expected) in the position or prospects of
the Company or in the value or state of the assets or
amount or nature of the liabilities of the Company as
compared with the position disclosed in the Audited
Accounts;
(ii) the Company has not disposed of any assets or assumed or
incurred any outstanding capital commitment or any material
liabilities (whether actual or contingent) otherwise than
in the ordinary course of carrying on its business (and for
this purpose disposals of fixed assets fixed and loose
plant and machinery fixtures and fittings vehicle and
office equipment shall be deemed to be not in the ordinary
course of business); and
(iii) the business of the Company has been carried on in the
ordinary and usual course of business without interruption
and so as to maintain the same as a going concern.
6. CONTRACTS AND COMMENTS
(a) The Company is not a party to any contract or arrangement
which restricts its freedom to carry on its business in any
part of the world in such manner as it may think fit, or to
any agency, distributorship or management agreement.
(b) Save for any guarantee or warranty implied by law and/or
product/services guarantees/warranties given in the normal
course of business, the Company has not given any guarantee
or indemnity under which any liability or contingent
liability is outstanding, or given any warranties, or made
any representation, in respect of goods or services
supplied or contracted to be supplied by it or accepted any
liability or obligation that would apply after any such
goods or services had been supplied by it.
(c) The Company is not a party to any agreement or arrangement
or under any obligation under which it is or may become
liable to make any investment with, or to deposit any money
with, or to provide any loan or financial accommodation or
credit (other than normal trade credit) to any person or to
subscribe, convert, acquire, dispose of or underwrite any
investment.
7. CONTRACTS WITH CONNECTED PERSONS
(a) There is not, and there has not been at any time, any
contract or arrangement to which the Company is, or was, a
party and in which the Vendors, or any director of the
Company either directly or indirectly have an interest but
if so such contracts or arrangements were conducted at
arm's length.
(b) Without prejudice to the generality of the preceding
subparagraph, there is not, and there has not at any time
been:
(i) any loan made by the Company to the Vendors; except
that disclosed in the
25
Accounts given;
(ii) any debt owing to the Company by the Vendors or the
Company and/or any person connected with the Vendors
except that disclosed in the Accounts given;
(iii) any securities for any such loans or debts as
aforesaid.
8. POWERS OF ATTORNEY
The Company has not given any power of attorney or other authority
(express, implied or ostensible) which is still outstanding or
effective to any person to enter into any contract or commitment
on its behalf other than to its employees to enter into routine
trading contracts in the normal course of their duties.
9. BANK ACCOUNTS AND BORROWINGS
(a) Full details of all bank accounts of the Company
(including the name and address of the bank with whom
the account is kept and the number and nature of the
account) have been disclosed to the Purchaser in the
Disclosure Letter.
(b) No banking or credit facilities have been granted to the
Company or obtained by the Company since its
incorporation.
(c) The Company has not factored any of its debts, or
engaged in any borrowing or financing of a type which
would not require to be shown or reflected in the
Audited Accounts, or borrowed any money from any party
which it has not repaid.
10. INSOLVENCY
(a) No order has been made and no resolution has been passed
for the winding up of the Company or for a provisional
liquidator to be appointed in respect of the Company and
no petition has been presented and no meeting has been
convened for the purpose of winding up the Company.
(b) No judicial management order has been made and no
petition for such an order has been presented in respect
of the Company.
(c) No receiver (which expression shall include a receiver
and manager) has been appointed and no steps has been
taken for the appointment of a receiver in respect of
the Company or all or any of its assets or undertaking.
(d) No distress, charging order, garnishes order execution
or other process has been levied against the Company and
no action has been taken to repossess the assets, goods
and/or properties in the possession or control of the
Company.
(e) The Company has not made or propose to make any
arrangement or composition with its creditors or any
class of its creditors.
26
(f) No unsatisfied judgment is outstanding against the
Company.
(g) No event analogous to any of the aforesaid has occurred
in or outside Singapore.
11. LITIGATION
(a) Since the Agreement Date, no claim sounding in damages
has been made against the Company.
(b) The Company is not engaged in any litigation or
arbitration or administrative or criminal proceedings,
whether as plaintiff, defendant or otherwise, and no
litigation or arbitration, administrative or criminal
proceedings by or against the Company is pending,
threatened or expected.
(c) There are no litigation or arbitration or administrative
or criminal proceedings against any director or employee
of the Company in respect of any act or default for
which the Company might be vicariously liable.
(d) So far as the Vendors are aware, after making due and
careful enquiries, as of the Completion Date, other than
potential claims by customers relating to SC21's
untimely performance under SC21's current customer
contracts with Xxx Xxxxxxxx (The Thai Silk Co Ltd.,
Thailand), Compaq Asia Pte Ltd, Natsteel Electronics Ltd
and SYY Pte Ltd, there is no fact or circumstance likely
to give rise to any such litigation or arbitration, or
administrative or criminal proceedings.
12. LICENCES, CONSENTS AND COMPLIANCE WITH STATUTES
(a) The Company has at all times carried on business and
conducted its affairs in all respects in accordance with
its memorandum and articles of association for the time
being in force and any other documents to which it is or
has been a party and the Company is empowered and duly
qualified to carry on business in all jurisdictions
which it now carries on business.
(b) All licences, and approvals required for or in
connection with the ownership of assets now being owned
and the carrying on of the business now being carried on
by the Company, are in full force and effect. There is
no circumstance which indicates that any licence, or
approval is likely to be revoked, annulled or modified
or which may confer a right of revocation, annulment or
modification.
(c) The Company is in good standing with all relevant
regulatory authorities in all jurisdictions in which it
carries on business.
(d) The Company has conducted its business and corporate
affairs in all materials respects in accordance with and
has complied with (as the case may be) the Companies
Act, and all other applicable laws, regulations,
directives and guidelines of Singapore and of all other
jurisdictions in which it carries on business; there is
no violation of, or default with respect to, any
statute, regulations or directives which could have a
material or adverse effect upon the assets or business
of the Company.
27
(e) So far as the Vendors is aware after having made
reasonable enquiries, no investigation or enquiry is
pending or its being or has been conducted by any
governmental, statutory or other body in respect of the
affairs of the Company.
13. OWNERSHIP OF ASSETS
(a) The Company legally and beneficially own or had good and
marketable title to all assets included in each of the
Accounts or have otherwise been represented as being the
property due to the Company and each of those assets
capable of possession or control, is in the possession or
control of the Company.
(b) The Company has not created or granted or agreed to create
or grant any security interest or other encumbrance in
respect of any of the assets included in each of the
Accounts, otherwise than in the ordinary course of its
business.
(c) None of the property, assets, undertaking, goodwill or
uncalled capital of the Company is subject to, and the
Company has not agreed to grant any option, charges lien,
encumbrance, or, right of pre-emption of any nature
whatsoever in respect thereof.
14. INSURANCE ON ASSETS, BUSINESS AND PROPERTIES
(a) All the fixed assets of the Company of any insurable
nature are and have at all material times been, insured in
amounts representing their full replacement or
reinstatement value against fire and other risks normally
insured against by persons carrying on the same business
as that carried on by the Company.
(b) Each of the Properties is insured against third party and
public liabilities to an adequate extent.
(c) The Company is now and has at all material times been
adequately covered against accident, damage, injury, third
party loss and other risks normally insured against by
persons carrying on the same business as that carried on
by the Company.
(d) All insurance is currently in full force and effect, all
premiums have been duly paid and nothing has been done or
omitted to be done which could make any insurance policy
void or voidable or which is likely to result in any
increase in premium or variation of any term of such
insurance policies.
(e) No claim is outstanding or may be made under any of the
insurance policies and no circumstances exist which are
likely to give rise to such a claim.
15. EMPLOYEES AND TERMS OF EMPLOYMENT
(a) Full particulars of the identities, dates of commencement
of employment, or appointment to office, and terms and
conditions of employment of all the employees and officers
in the Company, including without limitation profit
sharing, commission, discretionary bonus arrangements or
any other receipt of or entitlement benefit to
28
(either in cash or otherwise) leave have been disclosed to
the Purchaser in the Disclosure Letter.
(b) Save as disclosed in the Accounts, the Company has not
made or agreed to make any payment to or provided or
agreed to provide any benefit for any present or former
directors or employee, which is not allowable as a
deduction for the purposes of taxation.
16. BONUS, SHARE OPTION SCHEMES
(a) There are no schemes in operation by, or in relation to,
the Company whereunder any employee of the Company is
entitled to a commission or remuneration of any other
sort, calculated by reference to the whole or part of the
turnover, profits, sales or performance of the Company, or
is otherwise variable (other than normal overtime).
(b) The Company does not have in existence or is proposing to
introduce any share incentive scheme, share option scheme
or profit sharing scheme for all or any of its directors
or employees.
17. HEALTH AND SAFETY AND COMPLIANCE WITH STATUTES
The Company has at all relevant times complied with all
its obligations under statute and otherwise concerning
the health and safety at work of its employees, and
there are no claims capable of arising or threatened or
pending by any employee of the Company or any other
person in respect of any accident or injury which are
not fully covered by insurance which are in full force
and effect.
18. CONTRIBUTIONS
(a) The Company has paid, and there are no outstanding
liabilities to pay, to any relevant competent
governmental or regulatory authority any contribution
(including employer's contributions), arising or in
connection with the employment or appointment of
personnel.
(b) Proper records have been maintained and kept in respect
of all such payments (or deductions) and all regulations
and guidelines applicable thereto have been complied
with.
19. TAX RETURNS AND ADMINISTRATION
(a) The Company has duly made all returns and given or
delivered all notices, accounts and information which on
or before the date hereof ought to have been made, given
or delivered for the purposes of Taxation and all such
returns, notices, accounts and information supplied to
the inland revenue or to the customs and excise
concerned for any such purpose have been correct and
made on a proper basis and none of such returns,
notices, accounts or information is disputed in any
material respect. There is not in existence any fact
which might be the occasion of any such dispute or of
any claim for Taxation in respect of any financial
period.
29
(b) The amount of tax chargeable on the Company during any
accounting period has not, to any material extent,
depended on any concession, agreement or other formal or
informal arrangement with the inland revenue, the
customs and excise or other fiscal authorities.
(c) The Company has not received any notice from any fiscal
authority, including the inland revenue, which required
or will or may require the Company to withhold tax from
any payment made or which will or may be made after the
date of this Agreement.
20. TAX PAYMENTS AND DISPUTES
(a) The Company has duly and punctually paid all Taxation
which it is liable to pay and is under no liability to
pay any penalty or interest in connection with any claim
for Taxation and has not paid any Taxation which is not
liable or was not properly due to pay.
(b) There is no dispute or disagreement and there are no
circumstances likely to give rise to any dispute or
disagreement with the inland revenue, customs and excise
or other fiscal authorities regarding liability or
potential liability to any Taxation payable by or
recoverable from the Company or regarding the
availability of any relief, exemption or waiver from or
rebate on any Taxation of the Company.
21. EXISTING CONTRACTS
No contract, licence, permit or arrangement which any of the
Company is a party to shall be abrogated or affected by the
purchase of the Sale Shares by the Purchaser by the performance of
the terms of this Agreement.
22. PENSIONS
There is not in existence nor has any proposal been announced to
establish any retirement, death or disability benefit schemes for
directors or employees nor are there any obligations to or in
respect of present or former directors or employees with regards
to retirement, death or disability pursuant to which the Company
is or may become liable to make payments and no payments and no
pension or retirement or sickness gratuity is currently being paid
or has been promised by the Company to or in respect of any former
director or former employee.
23. BOOK DEBTS
The book debts receivable by the Company which are included in the
Accounts or which have subsequently arisen will realise in the
normal course of collection their full value as included in the
Accounts or in the books of the Company after taking into account
the provision for bad and doubtful debts in the Accounts.
The accounts receivable of the Company recorded in the Accounts
and all of such accounts receivable or any such other accounts
receivable which are thereafter acquired or arise
30
subsequent to the date hereof, have arisen in the ordinary course
of business of the Company (as the case may be).
24. COMPLIANCE WITH LEASES AND OTHER AGREEMENTS
To the best of the knowledge and belief of the Vendors after
making due and careful enquiries:-
(i) the terms of all leases, tenancies,
licences, concessions and agreements
of whatsoever nature to which the
Company is a party have been duly
complied with by all the parties
thereto;
(ii) no such lease, tenancy, licence,
concession or agreement will become
subject to avoidance, revocation or be
otherwise affected in consequence of
the making or implementation of this
Agreement; and
(iii) save as disclosed, the Company does
not occupy or does not have an
interest in any freehold or leasehold
property and (where applicable) the
Company has a good and marketable
title to such property it is occupying
or having an interest in free of any
onerous or unusual covenants,
restrictions and encumbrances.
25. NAMES OF THE COMPANY
The Company has full rights to use its name in Singapore or
elsewhere for the conduct of its business. The Company has not
received any notice of conflict with respect to the rights of
others regarding its name. Neither the Vendors nor the Company has
authorised any person, firm or corporation or other business
association doing business, to use its name or to hold itself out
to the public as a partner or an associate or affiliate of the
Vendors or the Company.
26. OPTIONS ON SHARE CAPITAL
No person has the right (whether exercisable now or in the future
and whether contingent or not) to call for the allotment, issue,
sale or transfer of any share or loan capital of the Company under
any option or other agreement (including any option or any
conversion rights or rights of pre-emption).
27. NON-CONTRAVENTION
The execution and delivery of this Agreement and the consummation
of the transactions contemplated by this Agreement do not and will
not violate any provision of the memoranda and articles of
association of the Company or violate or result, with or without
the giving of notice or the lapse of time or both, in a violation
of any provision of, or result in the acceleration of, or entitle
any party to accelerate (whether or not after the giving of notice
or lapse of time or both), any material obligation under, or
result in the creation or imposition of any material lien, charge,
pledge, security interest or other encumbrance upon the property
of the Vendors or the Company (as the case may be) pursuant to any
provision of any mortgage, lien, agreement, licence,
31
instrument, law, ordinance, rule, regulation, order, arbitration
award, judgement or decree to which the Vendors or the Company (as
the case may be) is a party or by which any of them is bound, and
the same do not and will not constitute an event permitting
termination of any mortgage, lien, agreement, licence or
instrument to which the Vendors or the Company is a party.
28. INVESTMENTS, ASSOCIATIONS AND BRANCHES
The Company is not and/or has not been a party to any joint
venture or consortium or any partnership arrangement or agreement
or to any agreement or arrangement for sharing commissions or
other income relating to the Business. The Company does not
conduct and/or has not conducted any part of the Business through
a branch, agency, subsidiary, associated company or permanent
establishment either within or outside Singapore. The Company is
not a member of any partnership trade association society or other
group whether formal or informal which is relevant to or has any
material influence over the Business as now carried on.
29. INTELLECTUAL PROPERTY
The Vendors warrant that :-
(a) SC21 is the sole, legal and beneficial owner of the Know-How
set out in Schedule 2 hereto and the Vendors have no claim and
will make no claim whatsoever to any rights, title, benefits or
interest in the Know-How and the Vendors hereby relinquish all
rights, title, benefits or interest in the Know-How which they may
have or which may accrue to the Vendors notwithstanding this
warranty;
(b) the Vendors have not applied to register and/or have not
registered the "SC21" brandname or any derivation, variation or
modification thereof in any other country and will make no claim
to any rights, title, benefits or interest in the "SC21" brandname
or any derivation, variation or modification thereof in Singapore
allow in any other country;
(c ) SC21 has full power to sell, transfer and assign the Know-How
to the Purchaser;
(d) no licences have been granted to use the Know-How set out in
Schedule 2, the Know-How or the "SC21" brandname or any
derivation, variation or modification thereof in any other
country;
(e) neither the Company nor the Vendors have suffered the said
Know-How set out in Schedule 2, Know-How and the "SC21" brandname
to be the subject of any charge, mortgage or other encumbrance;
(f) there are no restrictions on the use of the Know-How and the
"SC21" brandname in relation to the Business;
(g) there are no claims pending or completed actions or
proceedings relating to the Know-How and the "SC21" brandname;
(h) the Purchaser shall have and shall enjoy quiet possession of
the Know-How and the "SC21" brandname uninterrupted or disturbed
by the Vendors or any person claiming under or in trust for it;
32
(i) the Business and/or its conduct and/or operation will not
infringe any patent, registered design, trade xxxx, copyright,
trade secret or other intellectual property or industrial property
right of any third party or give rise to any liability to pay
royalty or other compensation;
(j) the Know-How and the "SC21" brandname or any part thereof do
not utilise or infringe any patent, registered design, trademark,
copyright, trade secret or other intellectual or industrial
property right of any third party or give rise to any liability to
pay royalty or other compensation;
(k) the Vendors and the Company have not (except in the ordinary
and normal course of its business) disclosed or permitted to be
disclosed or undertaken or arranged to disclose to any person
other than the Purchaser any of Know-How, Confidential
Information, price lists or lists of customers or suppliers
relating to the Business; and
(l) the information disclosed by the Vendors and the Company to
the Purchaser relating to the Know-How and the "SC21" brandname is
true, accurate and complete, and the use of the Know-How and the
"SC21" brandname will not give rise to any claims by third parties
in tort or otherwise against the Purchaser or the Company arising
in any way out of the said use.
30. REGISTRATION BY PURCHASER
The Purchaser may take such steps as are necessary in to effect
registration of its interest in the Know-How and the "SC21"
brandname and all modifications, variations and derivations
thereof and the Vendors shall execute all such documents, and do
all such acts and things and sign all such documents that the
Purchaser may require or to confer on the Purchaser all rights of
action relating to any infringement by third parties at the date
hereof and in the case of default, the Vendors hereby irrevocably
appoint the Purchaser as the Vendors' attorney for such purpose.
31. TRANSFER OF KNOW-HOW
The Vendors shall forthwith deliver, divulge, transfer, disclose,
impart or otherwise communicate to the Purchaser the Know-How, the
Confidential Information and all related documentation in whatever
form or medium and all copies thereof.
32. STATUS OF SOPL
As at the date of this Agreement, the shareholders of SOPL are SI,
TKL and RDS.
No person has the right (whether exercisable now or in the future
and whether contingent or not) to call for the allotment, issue,
sale or transfer of any share or loan capital of SOPL under any
option or other agreement (including any option or any conversion
rights or rights of pre-emption).
None of the property, assets, undertaking, goodwill or uncalled
capital of SOPL is subject to,
33
and SOPL has not agreed to grant any option, charges, lien,
encumbrance, or, right of pre-emption of any nature whatsoever in
respect thereof.
33. TAF BUSINESS
TKL hereby represents, warrants, undertakes, acknowledges and
agrees that for so long as he is a direct or indirect substantial
shareholder and/or has management control (whether directly or
indirectly) of TAF, the TAF Business is not and shall not at any
time include the development, licensing, sale or resale to third
parties of software applications or supply chain solutions similar
to or incorporating any function of (i) SC21 4 PLWeb, SC21
TrackWeb, or SC21 BackWeb as described on Schedule 2 hereof, or
(ii) future product offerings of SC21, or (iii) present or future
product offerings of the Purchaser.
34
SCHEDULE 4
FORMAT OF STOCK RESTRICTION AGREEMENT
35
SCHEDULE 5
LIST OF ITEMS/TECHNICAL SPECIFICATIONS
A. SOFTWARE (7 DISKS)
1. 4PL Web
2. BackWeb
3. TrackWeb
4. Xxx Xxxxxxx
5. Generic Product
6. Maxins - CTP, DP
7. Maxins - ATP, MRP, Liability, Sales Analysis
DOCUMENTATION
INTELLECTUAL PROPERTY RIGHTS OF SC21 PTE LTD, MAY 2000 CONSISTING OF:
CHAPTER 1 FUNCTIONAL SPECIFICATIONS OF SC21 PRODUCTS 1
1.1 Introduction 1
1.2 4PLWeb 1
1.2.1 The Supply Chain 1
1.2.2 Functional Scope of the Actors 1
1.2.3 The Transaction Flow 2
1.2.4 Modules 3
1.2.5 Transaction Flow (Screen) 4
1.3 BackWeb 21
1.3.1 The Supply Chain 21
1.3.2 Functional Scope of the Actors 21
1.3.3 The Transaction Flow 21
1.3.4 Modules 22
1.3.5 Transaction Flow (Screen) 23
1.4 TrackWeb 30
1.4.1 The Supply Chain 30
1.4.2 Functional Scope of the Actors 30
1.4.3 Transaction Flow (Screen) 32
36
Chapter 2 ASP Technical Specifications 42
4PLWeb (Compaq)
2.1 Introduction 42
2.2 ASP Technical Specifications 42
Chapter 3 Views/Database Technical Specifications 70
4PLWeb (Compaq)
3.1 Introduction 70
3.2 Database Technical Specifications 70
Chapter 4 Functional Specification of Sales Analysis 163
4.1 Introduction 163
4.2 Sales Analysis 163
4.2.1 Product Movement Analysis 163
4.2.2 Quantity against Sales Analysis 166
4.2.3 Sales by Shop Analysis 167
4.2.4 Profitability 168
4.2.5 Non-moving Items 169
4.2.6 Stock Inventory 169
Chapter 5 Design Document on ATP 171
(Available to Promise)
5.1 Introduction 171
5.2 Basic Requirement 171
5.2.1 Objective 171
5.2.2 Functionality Requirement 171
Chapter 6 Version Control 191
Appendix I Requirements Analysis Report (Compaq)
Appendix II Data Structure
37
SCHEDULE 6
FORMAT OF LETTER FROM NANYANG TECHNOLOGICAL UNIVERSITY
[DRAFT ON NTU'S LETTERHEAD]
Date :
To : Viewlocity Inc.
0000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX00000
XXX
Re : TRANSFER OF "SUPPLY CHAIN MANAGEMENT
SOFTWARE SUITE - MAXIMS"
I am the duly authorized agent and representative of Nanyang Technological
University ("NTU"), and this letter is a valid and binding obligation of NTU.
NTU hereby agrees, confirms and acknowledges that all and any of the copyright,
trademarks, trade names, patents and all other intellectual property rights
subsisting in or used in connection with the Maxims Supply Chain Management
Software Suite invented by NTU including all documentation, manuals, source
codes, all improvements, new inventions, designs or processes evolved therefrom
that then existed or were in future to exist, and which were vested in NTU (the
"Maxims Software"), were transferred absolutely and irrevocably to SC21 Pte. Ltd
by a letter agreement dated 25 November 1998 between NTU and SC21 Pte Ltd (the
"1998 Agreement"), in consideration of certain future payments as described in
the 1998 Agreement.
NTU further represents, warrants and covenants that prior to transferring the
Maxim's Software to SC21 Pte. Ltd., under the 1998 Agreement, it was the sole
and lawful owner of the Maxims Software and that NTU had good right to sell the
same and will warrant and defend the title thereto unto SC21 Pte. Ltd, its
successors, and assigns, against the claims and demands of all persons
whomsoever.
With the written consent of SC21 Pte. Ltd. in writing, NTU hereby agrees to
substitute the remaining consideration it is due presently and in the future
under the 1998 Agreement for the payment by Viewlocity, Inc. to NTU of the
following consideration:
(i) the payment of the sum of S$100,000.00 by Viewlocity, and
(ii) (ii) the grant to NTU of an option ("Stock Option") to purchase
five thousand (5,000) shares Viewlocity's common stock, $0.01 par
value per share ("Common Stock"). The exercise price of the Stock
Option shall be set by the Compensation Committee of the Board of
Directors of Viewlocity and shall reflect the fair market value of
the Common Stock at the date of grant. The Stock Option granted to
NTU pursuant to this Agreement shall be subject to the terms and
conditions of the Company's Stock Incentive Plan, as amended from
time to time, and shall be fully vested upon grant.
(the " New Consideration").
Upon payment to NTU of the New Consideration, NTU further hereby agrees and
acknowledges that all rights, title, and interest in and to the Maxims Software
shall be fully, absolutely and irrevocably vested in SC21.
38
It is further agreed that :
(a) the Consideration shall be satisfied by Viewlocity by no later than May
26, 2000 at 5:00 p.m., United States Eastern Daylight Time;
(b) this letter agreement supercedes the previous letter agreement dated 25
November 1998 between NTU and SC21 Pte Ltd in respect of the Maxims
Software (the "1998 Agreement") and the 1998 Agreement hereby ceases to
be binding and effective as between the parties thereof.
Kindly sign the duplicate copy of this letter to confirm your agreement to the
above terms.
Yours faithfully,
Xxxx of School of Mechanical & Production Engineering
Nanyang Technological University
c.c Salem Ibrahim, Chairman, SC21 Pte. Ltd.
39
SCHEDULE 7
FORM FOR SERVICE AGREEMENT
For the avoidance of any doubt, the terms of the Service Agreement have been
expressly agreed between RDS and the Purchaser.
40
