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EXHIBIT 10.44
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DATED THIS 3RD DAY OF JANUARY 2000
BETWEEN
DEEPA XXXXXXXX XXXXXXX
(NRIC No.: X0000000X/PASSPORT NO.: Z1004741)
AND
MY WEB INC. COM
*****************************************************
SALE AND PURCHASE AGREEMENT
[relating to 95,000 ordinary shares of nominal amount SGD1.00 each
in Easy2Bid Pte Ltd (Company No. 199901508M)]
*****************************************************
MESSRS PEI ANIZA & PARTNERS
ADVOCATES & SOLICITORS
BLOCK G, UNIT G605,
PHILEO DAMANSARA 1, XX 0, XXXXX 00/00
XXX XXXXX XXXXXXXXX
00000 XXXXXXXX JAYA
File Ref:PA-JK/CP myweb/easy2bid/048-99
H/d AO: micro-word\spa-shares\myweb\easy2bid
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THIS AGREEMENT is made this 3rd day of January 2000 between
DEEPA XXXXXXXX XXXXXXX (NRIC No. X0000000X/PASSPORT NO.:Z1004741) of 10
Cuscaden Walk, Four Seasons Park, #00-00 Xxxxxx Xxxxx, Xxxxxxxxx 000000
(hereinafter referred to as "the Vendor") of the one part; and
MYWEB XXX.XXX a company incorporated in Nevada, United States of America, which
is publicly traded on the United States NASD OTC BB and having its registered
office at 595, Market Street, Suite 2500, Xxx Xxxxxxxxx, XX 00000, Xxxxxx
Xxxxxx of (hereinafter referred to as "the Purchaser") of the other part.
WHEREAS:-
(1) Easy2Bid Pte Ltd (Company No. 199901508M), a company incorporated in
the Republic of Singapore and having its registered office at 0,
Xxxxxxx Xxxxxx, #00-00, Xxxxxxxx Xxxxx, Xxxxxxxxx 000000 (hereinafter
referred to as "the Company") has an authorised share capital of
Singapore Dollar One Hundred Thousand (SGD100,000) divided into One
Hundred Thousand (100,000) ordinary shares of Singapore Dollar One
(SGD1-00) each of which One Hundred Thousand (100,000) ordinary shares
have been issued and are fully subscribed.
(2) The Company is presently involved in the business of online auctions.
(3) The Vendor is the registered and beneficial owner of Ninety Five
Thousand (95,000) ordinary shares of Singapore Dollar One (SGD1-00)
each in the issued and paid-up capital of the Company representing
ninety five per centum (95%) of the issued and paid-up capital of the
Company (hereinafter referred to as "the Sale Shares").
(4) The present directors of the Company (hereinafter referred to as "the
Existing Directors") are the persons whose names and addresses appear
in the First Schedule hereto.
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(5) The Vendor is desirous of selling and the Purchaser is desirous of
purchasing the Sale Shares upon the terms and conditions and on the
basis of representations, warranties and undertakings hereinafter
contained.
(6) The financial position of the Company as at 17th day of December, 1999
(hereinafter called "the Accounts Date") is as indicated in the
Management Accounts of the Company annexed hereto and marked as
Appendix I (hereinafter referred to as "the Accounts").
NOW IT IS HEREBY AGREED AND DECLARED as follows:
1. DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires, the
following expressions shall have the following meanings:-
"Accounts" the audited balance sheet and profit account
of the Company as at the Accounts Date and
annexed hereto as Appendix I
"Accounts Date" the 17th December 1999;
"Agreement" this Agreement for the sale and purchase of
the Sale Shares, and any such
modifications, variations, amendments or
additions, as the Parties to this Agreement
may agree in writing from time to time;
"Business" means the business of online auction;
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"Business Day" a day (excluding Saturday and Sunday) on
which banks are open for business in
Singapore;
"Business Records" means:
(a) all current marketing and customer
files and customer lists of the
Company;
(b) service promotional descriptive sales
and application literature and other
advertising material;
(c) supplier lists; and
(d) all records of the Service Contracts.
"Companies Act" means the Singaporean Companies Xxx 0000
and all regulations made thereunder;
"Company" means EASY2BID PTE LTD (Company No.
199901508M) a company incorporated in
Singapore and having its registered office
at 0, Xxxxxxx Xxxxxx, #00-00, Xxxxxxxx
Xxxxx, Xxxxxxxxx 000000;
"Completion" means the day when the events specified in
Clause 5.2 occur;
"Completion Date" from the date of this Agreement (or such
later date as the parties may agree); means
a date which is not later than one (1)
month(s)
"Conditions Precedent" means the conditions referred to in the
Clause 3;
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"Employees" means the persons who are currently employed
by the Company for the purposes of the
Business and as listed in the Second
Schedule hereto;
"Encumbrance" includes any mortgage, charge, pledge, lien
and any other encumbrance whatsoever;
"Liabilities" means all the liabilities of the Business
outstanding as at the Accounts Date as
disclosed in the Accounts;
"Purchase Price" means the purchase price of the Sale Shares
as determined in accordance with Clause 4.1
of this Agreement;
"Purchaser's Solicitors" means MESSRS PEI ANIZA & PARTNERS Advocates
& Solicitors Block G, Unit G605, Philco
Damansara 1, No. 9, Xxxxx 00/00 xxx Xxxxx
Xxxxxxxxx 00000 Xxxxxxxx Xxxx, Xxxxxxxx.
"Sale Shares" means all the Ninety Five Thousand (95,000)
issued and fully paid shares of the Company
owned by the Vendor which are to be sold to
the Purchaser subject to the terms of this
Agreement;
"Service Agreements" means the several current contracts entered
into between the Company and the Employees;
"Tax" means all forms of tax whether of Singapore
or elsewhere whenever imposed (including
without limitation tax, income tax, property
tax, sales tax, payroll tax, withholding
tax, profits tax, capital gains tax, capital
transfer tax, development tax, development
land tax, estate duty, national insurance
tax, stamp duty, capital duty, value
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added tax, custom or other import or export
duties) and all statutory, governmental,
state, provincial, local governmental or
municipal impositions duties rates and
levies and all penalties, charges, costs and
interest relating thereto;
"Warranties" means the warranties as set out in the Third
Schedule;
1.2 In this Agreement, unless the context otherwise requires:
(a) words denoting the singular number include the plural and
vice-versa;
(b) words denoting a gender include every gender;
(c) words denoting natural persons include bodies corporate and
unincorporated;
(d) reference to clause and schedules are to clauses and schedules
to this Agreement;
(e) references to any legislation or to any provision of
legislation shall include any modification or re-enactment of
that legislation or any legislative provision substituted for,
and all regulations and statutory instruments issued under
such legislation and or provision headings to the Clauses and
Schedules of this Agreement are included for convenience only
and shall not affect the construction or interpretation of
this Agreement;
(g) where a word or a phrase is defined, other parts of speech and
grammatical forms or that word or phrase have corresponding
meanings;
(h) references to any party to this Agreement or any other
agreement or instrument shall include the party's successors
and permitted assigns;
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(i) references to any agreement or instrument shall include
references to such agreement or instrument as amended,
novated, supplemental, varied or replaced from time to time;
(j) references to Singapore dollar or "SGD" shall be taken as
referring to amounts in Singapore currency; and
(k) all schedules and annexure to this Agreement and its recitals
and all certificates and other agreements delivered pursuant
to this Agreement shall form a part of this Agreement.
1.3 All warranties, representations, indemnities, covenants, agreements and
obligations given or entered into by more than one person are given or
entered into jointly and severally.
2. AGREEMENT FOR SALE
2.1 The Vendor shall sell and the Purchaser shall purchase the Sale Shares
for the consideration set out in Clause 4 hereof, free from all
charges, debentures, encumbrances or liens and with all rights,
benefits and advantages attached thereto including all rights to
dividends and other distributions declared made and paid as from the
Completion Date as hereinafter defined.
3. CONDITIONS OF SALE
3.1 It is hereby expressly agreed between the parties hereto that this
Agreement and the sale and purchase hereunder of Sale Shares in the
Company is subject to and conditional upon the following:
(i) the Vendor obtaining the approval of its board of directors
for the transfer of the Sale Shares from the Vendor to the
Purchaser or its nominee;
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(ii) the Vender delivering a certified true copy or extract of such
a resolution to the Purchaser on or before the Completion
Date;
(iii) completion of satisfactory due diligence; and
(iv) deposition of all relevant legal documentation as mentioned
under Clause 5.1 herein.
4. CONSIDERATION
4.1 The total consideration payable by the Purchaser to the Vendor for the
Sale Shares shall be by way of the issue and allotment to the Vendor of
Six Thousand and Two Hundred (6,200) ordinary shares at the agreed
value of Singapore Dollars Thirty Two and Twenty Six cents ($32-26)
each of the Purchaser on a willing buyer and willing seller basis which
is equivalent to Singapore Dollar Two Hundred Thousand (SGD200,000-00)
only (hereinafter referred to as "the Purchase Price"). There will be
no adjustment in the Purchase Price notwithstanding any change in the
value of the net tangible asset of the Company.
4.2 The Purchase Price shall be paid by the Purchaser in one lump sum to
the Vendor through the Purchaser's Solicitors on the Completion Date.
5. COMPLETION
5.1 DOCUMENTS
Notwithstanding any provisions to the contrary contained herein the
Vendor shall at anytime between execution of this Agreement and the
Completion Date deposit with the Purchasers Solicitors the following:-
5.1.1 Share Certificates of the Sale Shares together with the
relevant transfer forms duly executed for the same in favour
of the Purchaser;
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5.1.2 letters of resignation of the Existing Directors of the
Company to take effect on the Completion Date without the
payment of any compensation or damages or any other payment of
whatsoever nature arising from loss of office;
5.1.3 a resolution in accordance with the Memorandum and Articles of
Association of the Company approving the transfer of the Sale
Shares from the Vendor to the Purchaser or its nominee or
nominees and the registration of such transfer to take effect
on the Completion Date subject only to the same being stamped
at the expense of the Purchaser;
5.1.4 a resolution of the respective Board of Directors of the
Vendor approving the sale and transfer of the Sale Shares
to the Purchaser;
5.1.5 a resolution in accordance with the Memorandum and Articles of
Association of the Company approving the appointments of the
nominees of the Purchaser to the Board of Directors of the
Company to take effect on the Completion Date;
5.2 COMPLETION
5.2.1 Completion of the sale and purchase of the Sale Shares shall
take place at the registered office of the Purchaser or at
other places as may be determined by the Purchaser on the
Completion Date whereupon:
5.2.1.1 the Purchaser's Solicitors are hereby expressly or
irrevocably authorised to release all the documents
referred to under Clause 5.1 hereof to the Purchaser;
and
5.2.1.2 the Vendor shall cause the Company to give and
deliver to and the Purchaser shall take delivery of
the Business Records and the Service Contracts.
5.2.2 Concurrently on the Completion Date the Purchaser's Solicitors
shall release the Purchase Price to the Vendor.
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5.2.3 Upon completion and satisfaction of the matters referred to in
Clause 5.2.1 and 5.2.2, beneficial ownership of the Sale
Shares shall be vested on the Purchaser.
6. EMPLOYEES
6.1 It is hereby acknowledged by the Purchaser that after Completion the
Employees will continue to be employed by the Company in accordance
with the prevailing terms and conditions and without any change in
seniority of position.
7. PENDING COMPLETION
7.1 With effect from the date of the execution of this Agreement hereof the
Vendor hereby agrees and undertakes with the Purchaser:-
7.1.1 that the Vendor shall use his best endeavours to carry on the
business of the Company in a professional manner and shall not
carry out or omit to carry out any act which is or will be
detrimental to the business and affairs of the Company;
7.1.2 that no amendment whatsoever be made to the Memorandum and
Articles of Association of the Company without the prior
written consent of the Purchaser;
7.1.3 that the Company shall not issue or allot any shares or create
or issue any obligations or securities convertible into shares
whether fully paid or otherwise to any persons including the
Vendor himself without the prior written consent of the
Purchaser;
7.1.4 that the Company shall not, (save and except expressly
provided by this Agreement) consolidate or subdivide any
shares, create any new class of shares, grant any options over
shares or any rights to subscribe for shares
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or debentures or to convert any debentures or obligations into
shares, alter any of the rights attached to any shares, reduce
any share capital or otherwise re-organise or grant any rights
in respect of the share capital in any way without the prior
written consent of the Purchaser;
7.1.5 that the Company shall not (save and except as disclosed to
the Purchaser) in any way sell or dispose or grant any option
to sell or dispose any part of its undertaking, property or
assets in any manner howsoever save in the ordinary course of
business without the prior written consent of the Purchaser;
7.1.6 that the Company shall not (save and except in the ordinary
course of business or as disclosed to the Purchaser) enter
into any material or substantial transaction or incur any
material or substantial liability, whether actual or
contingent. For the purpose of this paragraph the term
"transaction" includes guarantees and indemnities;
7.1.7 that the Company will not without the consent of the Purchaser
in any way depart from the ordinary course of its day to day
business either as regards the nature or scope or manner in
conducting the same;
7.1.8 that the Company and all persons within the Vendor's control
shall not carry out or otherwise do or omit to do anything
which may cause or be likely to cause the licences for the
operations of the business of the Company to be suspended,
withdrawn or jeopardise the renewal thereof;
7.1.9 that since the Accounts Date, no dividend have been declared
or paid and no distribution of capital made in respect of
share capital of the Company and no loan (otherwise than in
the ordinary course of day to day business or which is
expressly provided by the terms of this Agreement) or loan
capital of the Company has been repaid in whole or in part and
before the Completion Date no such distribution made and no
loan (otherwise than in the ordinary course of day to day
business) or share or loan capital will be
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repaid in whole or in part save with the prior written consent
of the Purchaser;
7.1.10 that the Company is the sole beneficial owner and has a
good and marketable title to all of the assets included in the
Accounts and to all assets acquired thereafter prior to the
Completion Date;
7.1.11 that the Company have not done or omitted to do anything
whereby any policy of insurance effected by it has or may
become void or voidable and the Company will keep and maintain
insurance cover in respect of its assets;
7.1.12 that the Vendor shall not, without the Purchaser's knowledge
and approval, on behalf of the Company or cause the Company to
enter into any contracts or obligations whatsoever or incur
any capital expenditure or grant any options and/or enter into
any agreement for the sale of shares of the Company;
7.1.13 that the Company shall not borrow any money other than in the
ordinary and proper course of normal day to day business of
the Company, as carried on at the date of the Agreement; and
7.1.14 that the Company shall not make any material change to the
remuneration or benefits which are now payable to its
directors, officers or employees or any of them.
8. VENDOR'S WARRANTIES
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8.1 Subject to the matters specified herein and in the Accounts (which
matters the Vendor warrant to be true) and any matter or thing
hereafter done or omitted to be done at the request in writing or with
the approval in writing of the Purchaser, the Vendor hereby, to the
best of his knowledge, information and belief, warrants and represents
to the Purchaser in the terms set out in the Third Schedule hereto
(which paragraphs of the
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Third Schedule shall not be in any way construed to be limited or
restricted by reference or inference from the terms of any other
paragraphs in the Third Schedule or the provisions of this Agreement)
as terms and conditions of this Agreement and that insofar as any of
the said terms and conditions relate in whole or in part to present or
past matters of fact they shall be deemed to constitute representations
upon the faith of which the Purchaser has entered into this Agreement.
8.2 The Vendor hereby warrants to the Purchaser that the warranties and
representations set out in the Third Schedule will to the best of his
knowledge, information and belief, be true as if given immediately
prior to Completion with reference to facts then existing as well as
the date of this Agreement (where any matter occurs after execution of
this Agreement which will cause the warranties not to be true, the
Vendor shall immediately upon discovery of the same disclose to the
Purchaser).
8.3 The Vendor will forthwith prior to the Completion discloses in writing
any matter relating to the Company which becomes known to the Vendor
between the date of this Agreement and Completion which is inconsistent
with any of the said warranties or representations or which is material
to be known by any prudent purchaser of the Sale Shares.
8.4 In the event of any breach or non-fulfillment of any of the said
warranties or representations whenever occurring, any breach or
non-fulfillment of a material nature thereof or upon the happening or
discovery of any event or circumstance which would render untrue or
misleading any of the said warranties or representations or any
warranty or representation of a material particular, the Purchaser
shall be entitled to the following (without prejudice to and in
addition to any remedies which the Purchaser may be entitled to in law
or otherwise) upon failure by the Vendor to remedy any of the said
breach or non-fulfillment within thirty (30) days of the written notice
given by the Purchaser to the Vendor.
8.4.1 if prior to Completion, to rescind this Agreement whereupon
the Vendor shall pay compensation to the Purchaser by way of
damages in the amount of Singapore Dollar Two Hundred Thousand
(SGD200,000-00); or
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8.4.2 alternatively, to proceed with completion and to receive
compensation by way of damages from the Vendor damages in the
amount of Singapore Dollar One Hundred Thousand
(SGD100,000-00).
8.5 The Vendor agrees that notwithstanding any investigation of the
business assets and accounts of the Company made by or on behalf of
the Purchaser, the Vendor will indemnify the Purchaser and keep the
Purchaser harmless from and against any damages, deficiencies, losses,
costs, liabilities and expenses (including reasonable legal fees and
disbursements) resulting from or arising out of any breach of any of
the representations, warranties, covenants and agreements made by the
Vendor herein and from any claim for Tax against the Company arising
from the circumstances occurring prior to Completion.
8.6 All undertakings, warranties, representations, indemnities and other
obligations of whatsoever type given made or undertaken pursuant to
this Agreement shall subject always to the provisions of Clause 8.7
below (except for any obligations fully performed prior to or at the
Completion Date) continue in full force and effect notwithstanding
completion of this Agreement.
9. NOTICES
9.1 Any notice or other document to be given under this Agreement and all
other communications between the parties with respect to this
Agreement shall be in writing and may be given or sent by:
9.1.1 hand; or
9.1.2 registered post, first class post or express or air mail or
other fast postal service; or
9.1.3 telex, facsimile or other electronic media,
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to the other party at the addresses or facsimile transmission
numbers set out below or such other person, addresses or
facsimile transmission numbers as either party may give notice
of the to the other:-
(i) For the Vendor:
10 Cuscaden Walk, Four Seasons Park
#00-00, Xxxxxx Xxxxx
Xxxxxxxxx 000000
ATTN: MS. DEEPA XXXXXXXX XXXXXXX
(ii) For the Purchaser:
Block G Unit G606, Phileo Damansara 1
No. 9 Xxxxx 00/00, Xxx Xxxxx Xxxxxxxxx
00000 Xxxxxxxx Xxxx, Xxxxxxxx
ATTN: XX. X.X. XXXX
9.2 All such notices and documents shall be in the English language.
9.3 Any notice or other document shall be deemed to have been duly served
upon and received by the addressee -
9.3.1 if delivered by hand, at the time of delivery;
9.3.2 if sent by registered post, first class post or express or air
mail or other fast postal service, within five (5) days of
despatch; and
9.3.3 in the case of telegram, telex or facsimile, on a business day
immediately following the date of the telegram, telex or
facsimile transmission, as the case may be, to be
authenticated by the receipt by the sender of a transmission
controlled report appearing on its face to emanate from the
sendees machine showing the answer-back code of the recipient,
the relevant number of pages,
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the correct facsimile number of the recipient and the result
of the transmission being described as "O.K." or any
equivalent description indicating that the communication has
been properly transmitted.
9.4 In proving the giving of a notice or any other document under or in
respect of this Agreement it shall be sufficient to show:
9.4.1 in the case of registered post, first class post or express
or air mail or other fast postal service, that the notice or
other document was contained in an envelope which was duly
addressed and posted; or
9.4.2 in the case of facsimile transmission or telex or other
electronic media was duly transmitted from the despatching
terminal as evidenced by a transmission report generated by
the despatching terminal.
9.5 No change in the address of the parties hereto as specified in
sub-clause 9.1 howsoever brought about shall be effective or binding on
either party unless that party has given to the other actual notice of
such change of address.
10. MISCELLANEOUS
10.1 Agreement to Subsist
10.1.1 Notwithstanding the completion of the sale and purchase of the Sale
Shares, the provisions warranties undertakings and agreements contained
herein shall continue thereafter to subsist for so long as may be
necessary for the purpose of giving effect to each and every of these
clauses in accordance with the terms hereof.
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10.2 Assignment
10.2.1 The parties hereto shall not assign or otherwise part with their rights
and interests in this Agreement provided always that the Purchaser may
transfer the Sale Shares to any of the Purchaser's subsidiary or
related or associated companies.
10.3 Entire Agreement
10.3.1 This Agreement (together with any documents referred to herein)
constitutes the entire agreement between the parties hereto and it is
expressly declared that no variation hereof shall be effective unless
made in writing.
10.4 Specific Performance
10.4.1 The parties hereto shall be entitled to specific performance of the
sale and purchase of the Sale Shares herein.
10.5 Rescission
10.5.1 Any right of rescission conferred upon a party herein shall be in
addition to and without prejudice to all other rights and remedies
available to it and no exercise or failure to exercise such a right
shall constitute a waiver by it of any such right or remedy.
10.6 Costs
10.6.1 Each party to this Agreement shall pay their own solicitors costs of
and incidental to this Agreement and the sale and purchase hereby
agreed to be made but the stamp duty for the said transfers of shares
and for this Agreement shall be paid by the Purchaser.
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10.7 EFFECT OF HEADINGS
10.7.1 The headings and sub-headings in this Agreement are inserted for
convenience only and shall not be considered in construing the
provisions of this Agreement.
10.8 SCHEDULES
10.8.1 The Schedules hereto shall have full effect and shall be read as part
and parcel of this Agreement as if they were incorporated.
10.9 BINDING
10.9.1 THIS AGREEMENT shall be binding upon and inure for the benefit of the
respective permitted assigns and successors-in-title of the parties.
10.10 GOVERNING LAW
10.10.1 The validity, performance, interpretation and effect of the terms and
conditions of this Agreement shall be governed by and construed in all
respects in accordance with the laws of Singapore and each party hereto
shall duly submit to the non-exclusive jurisdiction of the Singapore
Courts.
10.10.2 Any dispute arising out of or in connection with this Agreement shall
be referred to the jurisdiction of the Courts of Singapore.
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IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals
the day and year first above written.
Signed by )
DEEPA XXXXXXXX XXXXXXX )
(NRIC No.: X0000000X/ )
PASSPORT NO.: Z1004741) )
In the presence of:- )
Signed by )
)
for and on behalf of )
MYWEB XXX.XXX )
in the presence of:- )
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THE FIRST SCHEDULE ABOVE REFERRED TO
(which is taken read and construed as an essential part of this Agreement)
THE DIRECTORS
1) DEEPA XXXXXXXX XXXXXXX (NRIC No. X0000000X/PASSPORT NO.: Z1004741)
Address: 10 Cuscaden Walk, Four Seasons Park,
#00-00 Xxxxxx Xxxxx, Xxxxxxxxx 000000
2) XXXXX XXXXXXX PRASAD
Address: 10 Cuscaden Walk, Four Seasons Park,
#00-00 Xxxxxx Xxxxx, Xxxxxxxxx 000000
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THE SECOND SCHEDULE ABOVE REFERRED TO
(which is taken read and construed as an essential part of this Agreement)
THE LIST OF EMPLOYEES
Name Designation Length of Service
NONE NONE NONE
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THE THIRD SCHEDULE ABOVE REFERRED TO
(which is taken read and construed as an essential part of this Agreement)
WARRANTIES AND REPRESENTATIONS
THE VENDOR
1. VENDOR'S AUTHORITY
(a) The Vendor has authority and power to enter into and perform
this Agreement.
(b) This Agreement constitutes valid and binding obligations of
the Vendor in accordance with its terms.
(c) There is no outstanding indebtedness or other liability
(actual or contingent) owing by the Company to the Vendor or
any director of or any person connected with the Vendor, nor
is there any indebtedness owing to the Company by any such
person.
(d) The vendor further warrants and represents that in the event
there are contingent liabilities, capital or burdensome
commitments, deferred taxation and any other liabilities
arising from contracts entered into by the Vendor with others
which have not been disclosed hereunder as at the Accounts
Date, the Vendor, agrees that he shall fully and solely bear
all payments to be made towards the settlement of the said
liabilities.
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THE COMPANY
2. SALE SHARES
(a) The Vendor is the registered and beneficial owner of the
number of Sale Shares and is entitled to sell and transfer the
full legal and beneficial ownership of the same to the
Purchaser.
(b) Subject to this Agreement, there is no option, right to
acquire, mortgage, charge, pledge, lien or other form of
security or encumbrances over or affecting any of the Sale
Shares or any of the paid up capital of the Company 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.
(c) The Sale Shares comprise ninety five percentum (95%) of the
registered capital of the Company and the rights and interest
in the Company.
3. MEMORANDUM AND ARTICLES OF ASSOCIATION
(a) The copy of the Memorandum and Articles of Association
provided to the Purchaser is accurate and complete in all
respects.
(b) The Company has complied with its Memorandum and Articles of
Association in all respects.
4. OPTIONS
Subject to this Agreement, there is no agreement or commitment
outstanding which accords to any person the right to call for any right
or interest in the Company.
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5. LAW
(a) The Company:
(i) is duly incorporated and organised and validly exist
in good standing under the laws of Singapore and has
all the necessary power, authority and capacity to:
(1) own or otherwise hold its property and
assets (including, without limitations, the
property and assets shown in its balance
sheet); and
(2) carry on its business as presently
conducted; and
(ii) has conducted its business in all material respects
in accordance with all applicable laws and
regulations of Singapore.
(b) There is no order, decree or judgment of any court or any
Governmental Agency in Singapore or any foreign country
outstanding against the Company or which may have a material
adverse effect upon the assets or business of the Company.
6. LICENSES
All necessary licenses, consents, permits and approvals:
(a) have been obtained by the Company to enable it to carry on its
business effectively in the manner which such business is now
carried on; and
(b) are valid and subsisting and there is no reason why any of
them will be suspended, cancelled or revoked.
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ACCOUNTS AND RECORDS
7. BOOKS AND RECORDS
All accounts, books, ledgers and financial and other records of the Company:-
(a) have been fully, properly and accurately maintained in all
material respects;
(b) are in the possession of or under the control of the Company;
and
(c) contain true and accurate records of all matters required by
law to be incorporated.
8. THE ACCOUNTS
The Accounts:-
(a) have been prepared in accordance with the requirements of all
relevant statutes and approved accounting standards
consistently applied in Singapore;
(b) show a true and fair view of the assets and liabilities of the
Company as at the Accounts Date and the profits of the Company
for the year ended on the Accounts Date;
(c) disclose and make proper provision or reserve for or note all
contingent liabilities, capital or burdensome commitments and
deferred taxation as at the Accounts Date; and
(d) disclose and make full provision or reserve for all actual
liabilities.
9. RETURNS
All returns, particulars, resolutions and other documents required
under any legislation to be delivered on behalf of the Company to the
authorities responsible for regulating
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corporate entities in Singapore or to any other authority whatsoever
have been properly made and delivered.
BUSINESS
10. BUSINESS SINCE THE ACCOUNTS DATE
10.1 Since the Accounts Date:-
(a) there has been no interruption or alteration in the nature,
scope or manner of the business which business of the Company
and such business has been carried on lawfully and in the
ordinary and proper course of business so as to maintain it as
a going concern:
(b) there has been no material adverse change in business and
there has been no damage or destruction affecting the
Company's business or its assets;
(c) the Company has not acquired, sold, transferred or otherwise
disposed of any asset of any nature or cancelled or waived or
released or discounted in whole or in part any debts or
claims, except in the ordinary and proper course of business;
(d) the Company has not knowingly waived or released any rights
which are of a material or substantial value;
(e) no distribution of capital has been declared, made or paid in
respect of any share of the Company; and
(f) the Company has not incurred or become subject to any
liability or obligation (absolute or contingent), except
current liabilities and obligations incurred under those
contracts entered into by it in the ordinary and proper course
of business.
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11. Consequence of Purchase
The Company is not a party to, nor is it bound or affected by or
subject to, any statute, legislation, regulation, judgment, order,
decree or law which would be violated, contravened or under which
default would occur, as a result of the purchase of the Sale Shares by
the Purchaser or complied by the Company with the terms of this
Agreement, and such purchase or compliance will not:-
(a) result in the Company losing the benefit of any right or
privilege it presently enjoys;
(b) result in any present or future indebtedness of the Company
becoming due or capable of being declared due and payable
prior to its stated maturity; or
(c) give rise to or cause to become exercisable any right of
pre-emption.
12. Insurance
(a) All assets of the Company which are of an insurable nature
have at all times been and are insured in accordance with good
commercial practice.
(b) The Company has at all times been adequately insured against
accident, third party, public liability and other risks
normally covered by insurance.
(c) Nothing has been done or omitted to be done by or on behalf of
the Company which would make any policy of insurance void or
voidable or enable the insurers to avoid any claim made under
such policies of insurance.
(d) The Company has not suffered any uninsured extraordinary or
unusual losses nor waived any rights of material or
substantial value nor allowed any insurance to lapse.
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(e) There are no existing circumstances which might lead to
liability under any such policies of insurance being avoided
by the insurers.
ASSETS
13. CHARGES
(a) The Company is the owner of and has good title to all assets
included in the Accounts.
(b) All assets which have been acquired by the Company since the
Accounts Date or after the Accounts Date are not subject to
any encumbrances or is the subject of any agreement or
commitment to give or create any encumbrances other than
those encumbrances specified in the Accounts.
(c) Since the Accounts Date, the assets of the Company have been
in the possession of, or with the control of the Company.
14. INTELLECTUAL PROPERTY
(a) The Company has not disclosed to any person to whom
disclosure would be improper, of any of its know-how, trade
secrets, technical processes, lists of customers or
suppliers, or other confidential information.
(b) The Company is not using any processes which involve the
exercise of rights covered by patent or other rights of third
parties.
(c) The Company's activities do not infringe any intellectual
property rights of any third party.
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CONTRACTS
15. GENERAL
The Company is not a party to:-
(a) any contract for hire or rent, hire-purchase or purchase by
way of sale or credit sale otherwise than in the ordinary and
proper course of business; and
(b) any other contract or instrument involving or likely to
involve obligations or liabilities which by reason of their
nature or magnitude ought reasonably to be made known to the
Purchase as intending Purchaser of the Sale Shares.
16. POWERS OF ATTORNEY
There are no powers of attorney given by the Company which are currently in
force.
17. INSIDER CONTRACTS
(a) There is no agreement or arrangement outstanding to which
the Company is a party and in which the Vendor or any
Director or any person connected with any of them is or has
been interested, whether directly or indirectly.
(b) The Company is not a party to, and its profits or financial
position have not been affected by any agreement or
arrangements which is not entirely on an arm's length nature.
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EMPLOYEES
18. Disputes and Employees
There is no existing, threatened or pending industrial dispute
involving the Company and/or any of its employees and there is no
arrangement between the Company and any trade union or Organisation
representing any such employees.
TAX
19. Returns
The Tax returns which ought to have been made by or in respect of the
Company for any corporate income tax have been made and are up-to-date,
correct and have been made and filed are not the subject of any dispute
with the Inland Revenue or other appropriate authorities and there is
no circumstances which are likely to give rise to any such dispute.
20. Provision
(a) The provision made on the Accounts are sufficient to cover all
Tax in respect of all accounting periods ended on or before
the Accounts Date for which the Company may at any time
hereafter become liable.
(b) Proper provision or reserve for deferred Tax in accordance
with generally accepted accounting principles and standards
has been made in the Accounts.
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GENERAL
21. Accuracy of Information
(a) The information provided in this Agreement and in the Accounts
is true and accurate in all material respects.
(b) All written information given to the Purchaser and its
professional advisers by the officers or employees of the
Vendor or the Company, the Vendor's professional advisers and
the Company's advisers during the negotiations prior to this
Agreement was, when given, and remains (insofar as not
superseded by information subsequently supplied by the Vendor)
true and accurate in all material respects and all documents
supplied have been true and complete copies of such documents.
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APPENDIX I
(which is taken read and construed as an essential part of this Agreement)
THE ACCOUNTS
[***]
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
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