EXHIBIT 2.01
DATED THE 30TH DAY OF AUGUST 2004
HARTCOURT CAPITAL, INC.
AND
SHENZHEN RAISER INDUSTRIAL AND
DEVELOPMENT CO., LTD.
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AGREEMENT FOR SALE AND PURCHASE OF
CERTAIN INTEREST IN THE REGISTRED CAPITAL OF
(GUANGDONG NEWHUASUN COMPUTER CO. LTD.)
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THIS AGREEMENT is dated the 30th of August, 2004.
BETWEEN:
(1) HARTCOURT CAPITAL, INC., a company incorporated in the British Virgin
Islands with its registered office situate at Akara Bldg., 00 Xx Xxxxxx
Xxxxxx, Xxxxxxxx Cay 1, Road Town, Tortola, British Virgin Islands and
its principal office situated at 0xx Xxxxx, 000 Xxxxx Xxxx Xxxx,
Xxxxxxxx Xxxxx (the "VENDOR").
(2) (SHENZHEN RAISER INDUSTRIAL AND DEVELOPMENT CO., LTD), a company
incorporated in the People's Republic of China with its registered
office situated at Rm 306, Rongshen Bldg, No. 88 Baguasan Road, Futian,
Shenzhen China (the "PURCHASER")
WHEREAS:
(A) As at the date of this Agreement, the Vendor is the beneficial owner of
certain interests in the GuangDong New Huasun as set out in column 2 of
SCHEDULE 2.
(B) As at the date of this Agreement, the Purchaser is a PRC incorporated
company in Shenzhen.
(C) The Vendor has agreed to sell and the Purchaser has agreed to purchase
certain interests in the registered capital of the Company as set out
in column 3 of SCHEDULE 2, the aggregate of which represents 45% of the
registered capital of the Company (the "Sale Interests") in accordance
with the terms and conditions of this Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
--------------
1.1 In this Agreement (including the Recitals and Schedules), unless the
context otherwise requires, the following words and expressions shall
have the following meanings ascribed to each of them below:
"AGREEMENT" this agreement for the sale and purchase of
the Sale Interest, as amended or
supplemented from time to time;
"COMPANY" has the meaning ascribed thereto in Recital
(A);
"COMPLETION" completion of the sale and purchase of the
Sale Interests in accordance with the terms
and conditions of this Agreement;
"DIRECTORS" directors of the Company from time to time
and "Director" shall be construed as any one
of them;
"HONG KONG" the Hong Kong Special Administrative Region
of the PRC;
"PRC" the People's Republic of China, which for
the purpose of this Agreement, excludes Hong
Kong and Macau;
"RMB" Renminbi, the lawfully currency of PRC;
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, schedules and exhibits of 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
rules in this Agreement includes reference to such Ordinance,
regulation, provision or rule as modified, consolidated or re-enacted
from time to time.
2. SALE AND PURCHASE OF THE SALE INTERESTS
---------------------------------------
2.1 Subject to the terms and conditions of this Agreement, Vendor, as
beneficial owner of the respective portion of Sale Interests as set out
in column 3 of SCHEDULE 2, shall sell and the Purchaser shall, relying
on the warranties and indemnities herein contained, purchase the Sale
Interests, with full title guarantee with effect from the date of this
Agreement free from all Encumbrances together with all rights now or
hereafter attaching thereto including but not limited to all dividends
paid, declared and/or made in respect thereof on or after the date of
this Agreement.
2.2 The Purchaser shall not be obliged to purchase any portion of the Sale
Interests unless the purchase of all the Sale Interests is completed
simultaneously.
3. CONDITIONS
----------
3.1 Completion is conditional upon:
(a) the Purchaser having completed its due diligence (including
without limitation, legal, financial and commercial aspects)
and the results of which are, in the absolute opinion of the
Purchaser, satisfactory and acceptable to the Purchaser in all
respects;
(b) if so required, passing of necessary resolutions by
shareholders of the Purchaser at a general meeting approving
(i) this Agreement and the transactions contemplated herein
and (ii) the allotment and issue of the Consideration Shares
to the Vendors credited as fully paid;
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(c) all necessary consents permits and approval (whether
governmental, regulatory or otherwise) as may be required
under PRC laws, regulations and rules in respect of this
Agreement, the allotment and issue of the Consideration Shares
and the transactions contemplated hereunder having been
obtained by the Purchaser;
(d) all necessary consents permits and approval (whether
governmental, regulatory or otherwise) as may be required in
respect of the sale and purchase of the Sale Interests and/or
the change of control of the Company having been obtained from
the relevant PRC governmental authorities, including but not
limited to the new business license for the Company;
(e) the Purchaser having obtained a legal opinion issued by a
lawyer (acceptable to the Purchaser) qualified to practice PRC
securities laws (which form and contents are satisfactory and
acceptable to the Purchaser at its absolute discretion) in
respect of:
(i) the legality and validity of this Agreement and the
transactions contemplated herein;
(ii) the completion of all necessary procedures and
obtaining of all necessary approvals regarding the
sale and purchase of the Sale Interests;
(iii) no change in the permitted scope business of the
Company after the transfer of the Sale Interests;
(iv) all other matters reasonably requested by the
Purchaser;
(f) the Purchaser having obtained a legal opinion issued by a PRC
legal counsel (which form and contents are satisfactory and
acceptable to the Purchaser at its absolute discretion) in
respect of:
(i) the legality and validity of this Agreement;
(ii) the completion of all necessary procedures and
obtaining of all necessary approvals regarding the
acquisition of the Sale Interests; and
(iii) all other matters reasonably requested by the
Purchaser;
(g) the Purchaser having obtained a consent letter duly signed by
all shareholders and person who has any direct or indirect
interest in the registered capital of the Company waiving
their respective rights of pre-emption or any other rights
they may have in respect of the Sale Interests;
(h) the Warranties and undertakings under this Agreement are true
and accurate and are not misleading in any material aspects at
Completion as if repeated at Completion and at all time
between the date of this Agreement and the Completion.
3.2 The Vendor shall procure the fulfillment of the condition precedents
mentioned in CLAUSES 3.1(E) above and shall keep the Purchaser fully
informed of all their actions and efforts in connection with their
obtaining the necessary consents, permits and approvals from the
relevant regulatory authorities, including without limitation,
providing the Purchaser immediately with all of their correspondence
with these relevant regulatory authorities.
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4. CONSIDERATION
-------------
4.1 The consideration for the sale and purchase of the Sale Interests shall
be the sum of US$3,403,150, which shall be satisfied by the Purchaser
within 5 years commencing from the Completion date of the agreement, in
21 installments as listed in schedule 5.
4.2 The Vendor shall pay interest of total consideration at the rate of
2.5% per annum, within 5 years commencing from the Completion date of
the agreement, in 20 installments as listed in schedule 5.
5. COMPLETION
----------
5.1 Completion shall take place at the PRC office of the Vendor situated at
0xx xxxxx, 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxx (or at such other place
and time as the parties may agree) when all the acts and requirements
set out in this CLAUSE 5 shall be complied with.
5.2 On Completion, Vendor shall deliver or procure the delivery to the
Purchaser of all the following:
(a) copies, certified as true and complete by a director/ legal
representative of the Company and its relevant subsidiaries,
of resolutions of the shareholders /board of directors meeting
approving the matters
(b) in respect of the Company:
(i) all constitutional documents, statutory records and
minute books (which shall be written up to date as at
Completion);
(ii) all other papers, correspondence and documents
relating to the Group which are in the possession of
or under the control of any of the Vendor;
provided that, if the Purchaser so agrees, delivery of all
documents and records as referred to in this CLAUSE 5.2(B)
shall be deemed to have been effected where they are situated
in premises and shall continue to be in the sole occupation of
the relevant member of the Company following Completion or
otherwise in the custody of persons who shall remain officers
and/or employees of such member of the Company following
Completion;
5.3 If the Vendor shall fail to do anything required to be done by them
without prejudice to any other right or remedy available to the
Purchaser, the Purchaser may:
(a) defer Completion to a day not later than 14 days after the
date fixed for Completion (and so that the provisions of this
paragraph (a) shall apply to Completion as so deferred); or
(b) proceed to Completion so far as practicable but without
prejudice to the Purchaser's rights to the extent that the
Vendors shall not have complied with their obligations
hereunder; or
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(c) rescind this Agreement without liability on its part.
6. ACCESS TO INFORMATION
---------------------
The Vendor shall assist the Purchaser, its agents, representatives
and professional advisers in obtaining promptly on request full
access to all such facilities and information regarding the business,
assets, liabilities, contracts and affairs of the Group and other
evidence of ownership of the assets owned by the Group as the
Purchaser may require.
7. FURTHER ASSURANCE
-----------------
The Vendor shall execute, do and perform or procure to be executed,
done and performed by other necessary persons 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 Interests in the Purchaser free from all
Encumbrances and with all rights now and hereafter attaching thereto.
8. CONFIDENTIALITY AND ANNOUNCEMENTS
---------------------------------
8.1 Each of the parties undertakes to the others that it will not, at any
time after the date of this Agreement, divulge or communicate to any
person other than to its professional advisers, or when required by law
or any rule of any relevant stock exchange body or regulatory
authorities, or to its respective officers or employees whose province
is to know the same any confidential information concerning the
business, accounts, finance or contractual arrangements or other
dealings, transactions or affairs of any of the others which may be
within or may come to its knowledge and it shall use its best endeavor
to prevent the publication or disclosure of any such confidential
information concerning such matters.
8.2 No public announcement or communication of any kind shall be made in
respect of the subject matter of this Agreement unless specifically
agreed between the parties or unless an announcement is required
pursuant to the applicable laws and the regulations or the requirements
of any relevant stock exchange or any other regulatory body or
authority. Any announcement by any party required to be made pursuant
to any relevant laws or regulation or the requirements of the relevant
stock exchange or any other regulatory body or authority shall be
issued only after such prior consultation with the other party as is
reasonably practicable in the circumstances.
9. GENERAL
-------
9.1 This Agreement constitutes the entire agreement between the parties
hereto with respect to the matters dealt with herein and supersedes all
previous agreements, arrangements, statements, understandings or
transactions between the parties hereto in relation to the matters
hereof and the parties acknowledge that no claim shall arise in respect
of any agreement so superseded.
9.2 Any variation to this Agreement shall be binding only if recorded in a
document signed by all the parties hereto.
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9.3 Time shall be of the essence of this Agreement but no failure by any
party to exercise, and no delay on its part in exercising any right
hereunder will operate as a waiver thereof, nor shall any single or
partial exercise of any right under this Agreement (including a
settlement with the Vendor) preclude any other or further exercise of
it or the exercise of any right or prejudice or affect any right
against any person under the same liability whether joint, several or
otherwise. The rights and remedies provided in this Agreement are
cumulative and not exclusive of any rights or remedies provided by law.
9.4 The obligations, liabilities (including without limitation, breach of
Warranties) and undertakings of the Vendors shall be joint and several.
9.5 This Agreement shall be binding upon and ensure for the benefit of the
successors of the parties but shall not be assignable.
9.6 All provisions of this Agreement, in so far as the same shall not have
been performed at Completion, shall remain in full force and effect
notwithstanding Completion.
9.7 If any provision of this Agreement shall be held to be illegal or
unenforceable, the enforceability of the remainder of this Agreement
shall not be affected.
9.8 Time shall be of the essence as regards any date or period mentioned in
this Agreement and any date or period substituted for the same by
agreement of the parties hereto or otherwise.
10. NOTICES
-------
10.1 Any notice, claim, demand, court process, document or other
communication to be given under this Agreement (collectively
"COMMUNICATION" in this CLAUSE 8) shall be in writing in the English
language and may be served or given personally or sent to the address
or other address as may have been last notified in writing by such
party to the party serving the communication specifically referring to
this Agreement.
10.2 A communication served in accordance with CLAUSE 8.1 shall be deemed
sufficiently served and in proving service and/or receipt of a
communication it shall be sufficient to prove that such communication
was left at the addressee's address or that the envelope containing
such communication was properly addressed and posted or dispatched to
the addressee's address or that the communication was properly
transmitted by facsimile to the addressee.
10.3 Nothing in this CLAUSE 8 shall preclude the service of communication or
the proof of such service by any mode permitted by law.
11. COSTS AND STAMP DUTY
--------------------
11.1 Each party shall bear its own costs and expenses (including legal fees)
incurred in connection with the preparation, negotiation, execution and
performance of this Agreement and all documents incidental or relating
to Completion.
12.2 All stamp duty (if any) payable in connection with the sale and
purchase of the Sale Interests shall be borne by the Vendors and the
Purchaser in equal shares.
12. GOVERNING LAW AND JURISDICTION
------------------------------
12.1 This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong.
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12.2 Any dispute, controversy or claim arising out of or relating to this
Agreement, or the breach termination or invalidity thereof, shall be
settled by arbitration in accordance with the UNCITRAL Arbitration
Rules as at present in force and as may be amended by the rest of this
clause. The appointing authority shall be Hong Kong International
Arbitration Centre.
12.3 The place of arbitration shall be in Hong Kong and at Hong Kong
International Arbitration Centre (HKIAC). There shall be only one
arbitrator. Any such arbitration shall be administered by HKIAC in
accordance with HKIAC Procedures for Arbitration in force at the date
of this Agreement including such additions to the UNCITRAL Arbitration
Rules as are therein contained.
12.4 The language to be used in the arbitral proceedings shall be English.
13. LEGAL REPRESENTATION
--------------------
Each party confirms and acknowledges to the other that he/she/it has
sought separate legal representation and is fully aware of the
provisions of this Agreement and the transactions contemplated herein
before entering into this Agreement.
14. COUNTERPARTS
------------
This Agreement may be executed in one or more counter parts each of
which shall be binding on each party by whom or on whose behalf it is
so executed, but which together shall substitute a single instrument.
For the avoidance of doubt, this Agreement shall not be binding on any
party hereto unless and until it shall have been executed by or on
behalf of all persons expressed to be a party hereto.
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SCHEDULE 1
----------
PARTICULARS OF THE COMPANY
--------------------------
1. Date of incorporation : 12 January 1998
2. Place of incorporation : PRC
3. Registration No. : 4400002002290
4. Registered capital : RMB2,000,000
5. Registered Address :
5. Nature : domestic joint venture company with
limited liability
6. Legal Representative :
7. Directors :
8. Financial year end : 31 December
9. Auditors :
10. Scope of Business : Computer hardware, software,
components and services; electronic
products, biotech and health
products; foods.
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SCHEDULE 2
----------
THE VENDOR AND ITS NOMINEES
---------------------------
PERCENTAGE OF SALE
AMOUNT OF REGISTERED CAPITAL INTERESTS TO THE ENTIRE
PAID UP BY THE VENDOR'S ISSUED SHARE CAPITAL OF THE
NAME NOMINEES (RMB) COMPANY
---- -------------- -------
600,000 30%
300,000 15%
-----------------------------------------------------------
Total: 900,000 45%
===========================================================
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SCHEDULE 3
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WARRANTIES
----------
1. INTERPRETATION
--------------
(A) In this schedule where the context admits:
"ACCOUNTS" means the consolidated balance sheet of the Company made up
as at the Balance Sheet Date and the consolidated profit and loss
accounts of the Company and its subsidiaries for the year ended on the
Balance Sheet Date, true copies of which are attached hereto marked
"Appendix";
"BALANCE SHEET DATE" means 30 June, 2004;
2. INFORMATION
-----------
(A) DISCLOSURES
-----------
The facts and information set out in the recitals and, the Schedules
and all documents attached are true and all information which has been
provided in writing to the Purchaser or its representatives or advisers
by the Vendor or by any Director, officer or other official of the
Company by its professional advisers or other agents was when given and
is now true and accurate in all material respects. There is no fact or
matter which has not been disclosed which renders any such information
untrue, inaccurate or misleading or the disclosure of which might
reasonably affect the willingness of a willing purchaser to purchase
the Sale Interests in accordance with the provisions of this Agreement.
3. COMPLIANCE AND ABILITY TO SELL
------------------------------
(A) CONSTITUTION OF EACH MEMBER OF THE COMPANY
------------------------------------------
The copy of articles of association of the Company which have been
provided to the Purchaser are true and complete in all respects and
have embodied in them or annexed to them a copy of every such
resolution and agreement required by law to be annexed thereto and the
Company has at all times carried on its business and affairs in all
respects in accordance with its respective memorandum and articles of
association and all such resolutions and agreements.
(B) STATUTORY COMPLIANCE
--------------------
The Company is a domestic joint venture company with limited liability
duly established and validly existing under the laws of the PRC and has
the corporate powers and authorises to carry on the business presently
carried on by it and to own and hold the assets used therewith.
The Company is duly established and validly existing under the laws of
the place of its incorporation and has the corporate powers and
authorises to carry on the business presently carried on by it and to
own and hold the assets used therewith.
The Company has complied with the provisions of all applicable laws,
regulations (and all orders notices and directions made thereunder) and
all applicable codes or practices. All returns, particulars,
resolutions and other documents required to be filed with or delivered
to the registrar of companies or to any other authority whatsoever by
the relevant member of the Group have been correctly and properly
prepared and so filed or delivered.
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(C) POWER TO SELL
-------------
The Vendor has full power to enter into and perform this Agreement and
the Tax Indemnity respectively and this Agreement and the Tax Indemnity
will constitute binding obligations on each such party, enforceable in
accordance with their terms.
4. CAPITAL STRUCTURE
-----------------
(A) CAPITAL OF THE COMPANy
----------------------
The Sale Interests together constitute 45% of the registered capital of
the Company as at the date of this Agreement and are fully paid up.
There is no Encumbrance or other form of agreement (including
conversion rights and rights of pre-emption) on, over or affecting the
Sale Interests and there is no agreement or commitment to give or
create any of the foregoing, and no claim has been made by any person
to be entitled to any of the foregoing, and no person has the right
(whether exercisable now or in the future and whether contingent or
not) to call for any portion of the capital of the Company under any of
the foregoing.
(B) OWNERSHIP
---------
All the Sale Interests are solely legally and beneficially owned by and
registered in the names of the Vendor in the proportions set out in
column 3 of SCHEDULE 2 and are free from any Encumbrance and there are
no arrangements in force or claimed entitling or allegedly entitling
any person to any Encumbrance.
5. CONSEQUENCE OF THE PURCHASE OF THE SALE INTERESTS
-------------------------------------------------
The purchase of the Sale Interests by the Purchaser or compliance with
the terms of this Agreement and any change in the current management of
the Company:
(i) will not cause the Company to lose the benefit of any right or
privilege it presently enjoys or cause any person who normally
does business with the Company not to continue to do so on the
same basis as previously;
(ii) will not relieve any person of any obligation to the Company
(whether contractual or otherwise) or enable any person to
determine any such obligation or any right or benefit enjoyed
by the Company or to exercise any right whether under an
agreement with or otherwise in respect of the Company;
(iii) will not conflict with or result in the breach of or
constitute a default under any of the terms, conditions or
provisions of any agreement or instrument to which the Company
is now a party or any loan to or mortgage created by the
Company or of its memorandum or articles of association;
(iv) will not result in any present or future indebtedness of the
Company becoming due and payable or capable of being declared
due and payable prior to its stated maturity;
(v) will not cause any director, supervisor or senior employee of
the Company to leave employment;
(vi) will not conflict with, violate or result in a breach of any
law, regulation, order, decree or writ applicable to the
Company; and
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SCHEDULE 4
----------
ADDRESSES AND FACSIMILE NUMBERS
FOR COMMUNICATION
-----------------
NAME ADDRESS FACSIMILE
---- ------- ---------
Shenzhen Raiser Industrial and Xx 000, Xxxxxxxx Xxxx, Xx. 00
Development Co., Ltd. Baguasan Road, Futian, 0755-33370888
Xxxxxxxx Xxxxx 000000
Hartcourt Capital, Inc. 0xx Xx., Xx. 000 Xxxxxxxxx Xx, 021-521308870
Shanghai,China,200040
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SCHEDULE 5
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PAYMENT SCHEDULE OF THE CONSIDERATION AND INTEREST
--------------------------------------------------
Consideration Interest Total per quarter Total per annum
------------- -------- ----------------- ---------------
Each quarter end within the 1st year commencing
from the completion date US$100,000 US$21,270 US$121,270 US$485,080
Each quarter end within the 2nd year commencing
from the completion date US$120,000 US$21,270 US$141,270 US$565,080
Each quarter end within the 3rd year commencing
from the completion date US$150,000 US$21,270 US$171,270 US$685,080
Each quarter end within the 4th year commencing
from the completion date US$180,000 US$21,270 US$201,270 US$805,080
Each quarter end within the 5th year commencing
from the completion date US$200,000 US$21,270 US$221,270 US$885,080
The 1st quarter end within the 6th year commencing
from the completion date US$403,150 US$0 US$403,150 US$403,150
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IN WITNESS whereof this Agreement has been duly executed by both parties hereto
the day and year first above written.
SIGNED by )
for and on behalf of )
SHENZHEN RAISER INDUSTRIAL AND )
DEVELOPMENT CO., LTD. )
in the presence of: )
SIGNED by )
for and on behalf of )
HARTCOURT CAPITAL, INC. )
in the presence of: )
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