Exhibit 2(d)
THIS AGREEMENT is made the 9th day of October 2001
BETWEEN:
(1) XXXX HOLDINGS INC. of 000 Xxxxxxxx Xxxxxxxx, 0000 Xxxxxxxxxx Xxxx,
Xxxxxxxxxx Xxxxxxxx 00000, Xxxxxx Xxxxxx of America ("the Vendor");
(2) XXXX GRAPHICS EUROPE LIMITED whose registered office is at Xxxxxxx Xxxx
Xxxx Xxxxxxxx Xxxxx XX00 0XX ("Xxxx (UK)");
(3) XXXX GRAPHICS EUROPE B.V. incorporated in the Netherlands whose
principal office is at Kanaaldijk 0Z3 8100 Raalte, The Netherlands
("Xxxx (NL)"); and
(4) NESCHEN INTERNATIONAL B.V. a corporation established under the laws of
the Netherlands whose office is at Mijkenbroek 18 in XX - 0000 Xxxxx,
Xxx Xxxxxxxxxxx ("the Purchaser").
WHEREAS
(A) The Vendor is the beneficial owner of 10,000 ordinary shares of par
value HK$1.00 each in the capital of Xxxx Graphics Pacific Limited
("the Company").
(B) The Vendor is named as the registered shareholder holding 9,999
ordinary shares of HK$1.00 each in the capital of the Company and Xxxx
(UK) is named as the other registered shareholder holding 1 share of
HK$1.00 in the capital of the Company.
(C) The Vendor and Xxxx (HK) have now agreed to sell and the Purchaser has
agreed to purchase a total of 10,000 shares of par value HK$1.00 each
in the Company for HK$10,000.00 and upon the terms and conditions set
out in this Agreement.
(D) As at the date hereof, the Company is indebted to Xxxx (UK) and Xxxx
(NL) in the respective sums of (pound)406,871.92 and EURO134,255.00
(together the "Debt").
(E) Xxxx (UK) and Xxxx (NL) have now agreed to sell and the Purchaser has
agreed to purchase their rights to repayment of the Debt for the
consideration as stated in Clause 3 hereof.
(F) The Vendor, Xxxx (UK) and Xxxx (NL) are part of the same corporate
group and the Vendor has all the necessary consent and authority from
Xxxx (UK) and Xxxx (NL) to receive the consideration payable for the
Debt on their behalf for the purpose of this Agreement.
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(G) The Vendor is a party with others to other agreements, details of which
are set out in Schedule 4 ("the Other Agreements"), for the sale of
businesses in the United States of America, the United Kingdom and the
Netherlands.
(H) The parties now agree to enter into this Agreement to record the above
upon the terms and conditions hereinafter set out.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement, unless otherwise expressed or required by context,
the following words and expressions shall have the following meanings:
"Business Day" a day (other than Saturdays Sundays and bank and
other customary holidays) on which licensed banks
are open for ordinary business in Hong Kong;
"the Company" Xxxx Graphics Pacific Limited, particulars of
which are set out in the Schedule 1;
"Completion" means completion of the sale and purchase of the
Sale Shares and where the context requires also
means the performance by the parties of their
obligations contained in Clause 4 hereof;
"Completion the balance sheet of the Company made up as of
Accounts" the close of business at Completion and the
profit and loss account of the Company prepared by
the Vendor and then audited in accordance with the
provisions of Clause 5 ;
"Deed of the deed of assignment in the form and substance
Assignment of of that as set out in Schedule 3;
Debt"
"EURO" the single currency unit adopted by a number of
European countries;
"Hong Kong" The Hong Kong Special Administrative Region of the
People's Republic of China;
"Management the management accounts of the Company which
Accounts" identify the net asset value of the Company as at
the date thereof, a copy of which is attached
hereto as Annexure "A";
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"Net Asset the value of the bank cash balances, the net
Value" accounts receivable, net inventory including goods
in transit, prepayments and deposits, fixed assets
at net book value LESS accounts payable and
accrued liabilities of the Company at Completion
as shown in the Completion Accounts;
"Other those agreements detailed in Schedule 4 hereto;
Agreements"
"Sale Shares" the 10,000 issued ordinary shares of par value
HK$1.00 each in the Company beneficially owned by
the Vendor;
"Warranties" the agreements, obligations, warranties,
representations and undertakings of the Vendor
contained in or referred to in Clause 6 or in
Schedule 2;
"HK$" dollars in the lawful currency of Hong Kong;
"US$" dollars in the lawful currency of the United
States of America; and
"(pound)" pounds sterling in the lawful currency of the
United Kingdom.
1.2 The headings are for ease of reference only and shall be ignored in
interpreting this Agreement.
1.3 Reference to Clauses and Schedules are references to clauses and
schedules of this Agreement.
1.4 Words and expressions in the singular include the plural and vice
versa.
1.5 Reference to a person include any public body and any body of persons,
corporate or unincorporated and words importing one gender include both
genders and the neuter.
1.6 Reference to ordinances, statutes, legislation or enactments shall be
construed as a reference to such ordinances, statutes, or enactments as
may be amended or re-enacted from time to time and for the time being
in force.
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2. SALE OF SALE SHARES AND ASSIGNMENT OF DEBT
2.1 The Vendor as legal and beneficial owner in respect of 9,999 of the
Sale Shares and Xxxx (UK) as registered shareholder in respect of 1
Sale Share now agree to sell and the Purchaser relying on the
Warranties made or given by the Vendor and subject to the terms and
conditions contained in this Agreement, agrees to purchase the Sale
Shares from the Vendor and Xxxx (UK) free from all claims, charges,
liens, encumbrances, equities and third party rights and together with
all rights attached thereto and all dividends and distributions
declared, paid or made in respect thereof after the date hereof.
2.2 Each of Xxxx (UK) and Xxxx (NL) in the proportions in which they are
entitled to repayment of the Debt now as beneficial owners agree to
sell, and the Purchaser relying on the Warranties made or given by the
Vendor and subject to the terms and conditions contained in this
Agreement, agrees to purchase their rights to repayment of the Debt
together with all rights, title, interest and benefit of Xxxx (UK) and
Xxxx (NL) in and to the Debt which are now or which may at any time
hereinafter be attached thereto or arising therefrom (including all
accrued interest thereon) free from all claims, charges, liens,
encumbrances, equities and third party rights.
3. CONSIDERATION
3.1 The consideration payable to the Vendor by the Purchaser for the sale
of the Sale Shares shall be HK$10,000.00 ("Share Price").
3.2 The consideration for Xxxx (UK) and Xxxx (NL) assigning to the
Purchaser their rights to repayment of the Debt shall be an amount
equal to the Net Asset Value ("Debt Price") paid in the manner as set
out in the Deed of Assignment of Debt and apportioned between Xxxx (UK)
and Xxxx (NL) in accordance with their respective interests in the
Debt.
3.3 Xxxx (UK) and Xxxx (NL) hereby authorise the Vendor to receive the Debt
Price on their behalf and the receipt by the Vendor of the Debt Price
shall constitute a good discharge of the Purchaser's obligation to pay
the Debt Price to Xxxx (UK) and Xxxx (NL).
3.4 All payments to be made hereunder are to be made either in HK$ or EURO.
The exchange from HK$ and Euro and any other conversion needed under
this Agreement shall be calculated by using the following exchange
rates HK$ 11.4665 = (pound)1, HK$ 7.11 = EURO 1 and HK$ 7.80 = US$ 1.
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4. COMPLETION
4.1 Completion shall take place forthwith on execution and exchange of this
Agreement at the offices of Xxxxxxx Xxxxxx 00 Xxxxxxxx Xxxx Xxxxxx XX0.
4.2 Upon Completion the Vendor shall :-
4.2.1 deliver to the Purchaser duly completed and signed transfers
of the Sale Shares by the registered holders thereof in favour
of the Purchaser (or as it may direct) together with the
respective bought/sold notes and original share certificates
in relation to the Sale Shares together with a letter of
confirmation that any existing trust between the Vendor and
Xxxx (UK) is cancelled;
4.2.2 cause a board meeting of the Company to be held at which
(inter alia) the existing directors of the Company shall :-
(i) approve the registration of the Purchaser and or its
nominee as members of the Company in respect of the
Sale Shares subject to the production of duly stamped
instruments of transfer;
(ii) revoke all existing mandates for the operation of all
the bank accounts of the Company and issue new mandates
giving authority to persons nominated by the Purchaser
provided that the Purchaser shall give at least 3
Business Days' advance notice of this in writing to the
Vendor;
(iii) appoint such persons as the Purchaser may nominate to
be validly appointed as additional directors of the
Company and upon such appointment forthwith cause all
the existing directors of the Company to retire from
their respective offices and resign as employees each
delivering to the Purchaser a letter under seal in
agreed terms acknowledging that the person so retiring
and resigning has no entitlement to claim compensation
for wrongful dismissal or unfair dismissal or to
payment for redundancy or in respect of any other
moneys or benefits due to him from the Company arising
out of or in connection with his employment and/or its
termination;
(iv) [deleted]
(v) deliver to the Purchaser a counterpart Deed of
Assignment of Debt duly executed by Xxxx (UK) and Xxxx
(NL) together with a letter of acknowledgement to the
Deed of Assignment of Debt signed by the Company.
4.3 Upon Completion the Purchaser shall :-
4.3.1 effect a telegraphic transfer to the Vendor of HK$2,102,800
being the aggregate amount of the Share Price and the first
instalment of the Debt Price as set out in the Deed of
Assignment of Debt;
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4.3.2 deliver to the Vendor certified true copies of the board
resolutions of the Purchaser approving the acquisition of the
Sale Shares, the execution of this Agreement and the
completion of this Agreement and the transactions contemplated
thereby; and
4.3.3 deliver to the Vendor a duly executed counterpart Deed of
Assignment of Debt.
4.4 As soon as practicable after Completion the Purchaser shall present the
instruments of transfer together with the share certificates in respect
of the Sale Shares to the Company for registration of the transfer.
4.5 All the transactions described in Clauses 4.2 and 4.3 above shall take
place at the same time, so that in default of the performance of any
such transactions by one party, the other party shall not be obliged to
complete the sale and purchase aforesaid (without prejudice to any
further legal remedies).
5. COMPLETION ACCOUNTS
5.1 Forthwith after Completion, the Vendor shall procure preparation of and
make available to the Purchaser draft accounts showing the anticipated
amount of the net asset value on Completion.
5.2 The Purchaser and the Vendor shall use all reasonable endeavours to
procure that such draft accounts shall in all respects comply with
current legislation and Hong Kong standard accounting principles and
practices.
5.3 Following the preparation of such draft accounts, the Purchaser's
accountants shall audit them applying the same bases and principles
referred to in Clause 5.2 and shall then produce a certificate
("Certificate") stating the amount of the Net Asset Value.
5.4 The Purchaser's accountants shall be deemed to act as experts and not
as arbitrators.
5.5 If the Purchaser's accountants shall not be able to produce the
Certificate in accordance with Clause 5.3 within fourteen (14) days of
the date on which the Completion Accounts were first submitted to them
(or such other period as the Vendor and the Purchaser may agree) or the
Vendor disputes the form and content of the Completion Accounts or the
Certificate the matter may be referred by either the Vendor or the
Purchaser to an independent chartered accountant selected by agreement
between them or, failing such agreement, a person nominated by the
President for the time being of the Hong Kong Society of Accountants on
the application of either the Vendor or the Purchaser and:-
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5.5.1 such chartered accountant shall be requested to settle any
matter in dispute applying the same bases and principles
referred to in Clause 5.2 and (unless both the Vendor and the
Purchaser shall otherwise direct in writing) determine the
form and content of the Completion Accounts and the amount of
the Net Asset Value;
5.5.2 the decision of such chartered accountant as to the matter in
dispute and its determination (if any) as to the form and
content of the Completion Accounts and the amount of the Net
Asset Value shall be final and binding on the parties hereto
and such chartered accountant shall be deemed to act as an
expert and not as an arbitrator.
5.6 The costs of the Purchaser's accountants in respect of the preparation
and determination of the Completion Accounts and the costs of the
independent chartered accountant (if any) shall be borne by the
Purchaser.
5.7 The accounts as determined and prepared in accordance with this Clause
5 and as accepted and agreed by the Vendor and the Purchaser, shall be
the Completion Accounts based on which the Net Asset Value shall be
determined.
5.8 As soon as reasonably practicable after and in any event within three
Business Days of issue of the Certificate or other determination of the
Net Asset Value under Clause 5.5.1 and/or 5.5.2 of this Agreement, the
Purchaser shall transfer the balance of the Debt Price to the Vendor by
way of telegraphic transfer. In the event that the Net Asset Value is
less than the first instalment of the Debt Price paid on the date
hereof in accordance with the Deed of Assignment of Debt, Xxxx (UK) and
Xxxx (NL) shall pay to the Purchaser, by way of refund, any excess
amount.
6. WARRANTIES
6.1 The Vendor hereby represents and warrants to and undertakes with the
Purchaser (for itself and for the benefit of its successors and assigns
in title) that each of the matters set out in this Agreement and in
Schedule 2 hereto is as at the date hereof and shall be for all times
up to and including Completion, true and correct in all respects.
6.2 The Vendor hereby undertakes with the Purchaser that as from the date
hereof and up to the Completion, the Company will not incur any
liability other than as incurred in the ordinary course of its
business.
6.3 Xxxx (UK) and Xxxx (NL) warrant that they are the legal and beneficial
owners entitled to repayment of the Debt and have good right, power and
title to sell and assign their rights to repayment of the Debt free and
clear of any liens, charges, pledges, option, third party right and any
incumbrances of whether nature.
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7. SEVERABILITY
7.1 If at any time any one or more provisions hereof is or becomes invalid,
illegal, unenforceable or incapable of performance in any respect, the
validity, legality, enforceability or performance of the remaining
provisions hereof shall not thereby in any way be affected or impaired.
8. CHANGE OF NAME, FURTHER ASSURANCE
8.1 The Purchaser and the Vendor shall following Completion use all
reasonable endeavours to procure that the name of the Company be
changed as soon as reasonably practicable to a name not including the
word "Xxxx".
8.2 Each party hereby undertakes to each other that it will do all such
acts and things and execute all such deeds and documents as may be
necessary or desirable to carry into effect or to give legal effect to
the provisions of this Agreement and the transactions hereby
contemplated and so that each party shall be responsible for its own
costs in connection with its obligations under this Clause.
9. PUBLICITY
9.1 Neither the Vendor nor Xxxx (NL) nor Xxxx (UK) nor the Purchaser shall
issue any press release or make any public announcement or disclosure
relating in any way to the transactions contemplated hereby or to the
negotiations of the parties hereto concerning the same without prior
written consultation with the other as to form and content of such
announcement or disclosure, provided, however, that, as to
announcements or disclosures required of such party by law or by the
applicable rules of any stock exchange or stock market such party shall
only be required to use its reasonable efforts to advise the other of
the form and content of any such announcement or disclosure.
10. ENTIRE AGREEMENT
10.1 This Agreement constitutes the entire agreement and understanding
between the parties in connection with the subject matter of this
Agreement and supersedes all previous proposals, representations,
warranties, agreements or undertakings relating thereto whether oral,
written or otherwise and none of the parties has relied on any such
proposals, representations, warranties, agreements or undertakings.
10.2 The Purchaser hereby admits that it has not been induced to enter into
this Agreement by any representation or warranty not expressly
incorporated herein.
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11. TIME
11.1 Time shall be of the essence of this Agreement.
11.2 No time or indulgence given by either party to the other shall be
deemed or in any way be construed as a waiver of any of its rights and
remedies hereunder.
12. CONFIDENTIAL INFORMATION
12.1 No party hereto shall make any announcement or release or disclose any
information concerning this Agreement or the transactions herein
referred to or disclose the identity of any other party (save
disclosure to their respective professional advisers or client under a
duty of confidentiality) without the written consent of all the other
parties.
13. ASSIGNMENT
13.1 This Agreement shall be binding on and shall ensure for the benefits of
the successors and assigns of the parties hereto but shall not be
assigned by any party without the prior written consent of the other
parties provided that any party hereto may without such consent as
aforesaid assign the whole or any part of any benefit of this Agreement
to any company which is its holding company or subsidiary or a fellow
subsidiary of its holding company.
14. NOTICES
14.1 Any notice or other communication to be given under this Agreement
shall be in writing and may be delivered by hand or given by facsimile
transmission, telex or e-mail transmission. Any such notice or
communication shall be sent to the party to whom it is addressed and
must contain sufficient reference and/or particulars to render it
readily identifiable with the subject matter of this Agreement. If so
delivered by hand or given by facsimile, telex or e-mail transmission
such notice or communication shall be deemed received on the date of
despatch and if so sent by post (or, if sent to an address outside of
Hong Kong, so sent by first class air-mail) shall be deemed received 2
business days after the date of despatch.
15. COSTS AND STAMP DUTY
15.1 Each party shall pay its own costs and expenses incurred in respect of
the negotiation and preparation of this Agreement.
15.2 Stamp duty payable in respect of the transfer of the Sale Shares and on
the Assignment of the Debt (if any) shall be paid and borne by the
Purchaser.
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16. COUNTERPART
16.1 This Agreement may be signed in any number of counterparts and in this
respect a single counterpart or a set of signed counterparts shall
constitute an original agreement for all purposes.
16.2 The exchange of copies of this Agreement and the signature pages by
facsimile transmission shall constitute effective execution and
delivery of this Agreement as to the parties and may be used in lieu of
the original Agreement for all purposes. Signatures of the parties
transmitted by facsimile shall be deemed to be their original
signatures for all purposes. As promptly as practicable after
Completion, each party hereunder shall deliver to the other parties the
original executed signature pages, but the failure to deliver such
pages shall not affect the validity or enforceability of this Agreement
17. ARBITRATION
17.1 Any dispute or difference between the parties in connection with this
Agreement shall be referred to arbitration in Paris and held in the
English language with three arbitrators under The International
Arbitration Rules of The International Chamber of Commerce.
18. GOVERNING LAW AND JURISDICTION
18.1 This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong and the parties hereto agree to submit to the
non-exclusive jurisdiction of the courts of Hong Kong.
AS WITNESS the parties hereto have executed this Agreement the day and year
first above written.
SIGNED by )
For and on behalf of )
XXXX HOLDINGS INC. )
In the presence of )
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SIGNED by )
For and on behalf of )
XXXX GRAPHICS EUROPE LIMITED )
In the presence of )
SIGNED by )
for and on behalf of )
XXXX GRAPHICS EUROPE B.V. )
in the presence of )
SIGNED by )
For and on behalf of )
)
NESCHEN INTERNATIONAL B.V. )
In the presence of :
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SCHEDULE 1
THE COMPANY
Name : Xxxx Graphics Pacific Limited
( ( ) )
Place of Incorporation : Hong Kong
Registration Number : 525192
Registered Office : 00xx Xxxxx, Xxxx Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx
Authorized Share Capital : HK$10,000 divided into 10,000 shares of
HK$1.00 each
Issued Share Capital : HK10,000.00
Registered Shareholders : (i) Xxxx Holdings Inc.
(9,999 shares of HK$1.00 each)
(ii) Xxxx Graphics Europe Limited of Xxxxxxx
Xxxx Xxxx, Xxxxxxxx, Xxxxx XX00 0XX,
Xxxxxx Xxxxxxx
(1 share of HK$1.00)
Directors : Xxxxxxx Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxx Precious
Xxxxx Xxxxx Xxxxxx
Secretary : Xxxxxx Secretaries Limited
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SCHEDULE 2
WARRANTIES
GENERAL
A. (1) The warranties, representations and undertakings set out
in paragraph B of this Schedule 2 are given subject to terms
of this Agreement . No other information relating to the
Company shall prejudice any claim made by the Purchaser under
such warranties, representations or undertakings of the Vendor
or shall operate to reduce any amount otherwise recoverable by
the Purchaser.
(2) The warranties representations and undertakings set out in
each sub-paragraph of paragraph B below shall be separate and
independent and save as expressly provided shall not be
limited by reference to any other sub-paragraph or anything in
this Agreement or the Schedules.
GIVING OF WARRANTIES
B. The Vendor hereby warrants, represents and undertakes to the Purchaser
and to any successors in title or assignees of the Purchaser as that at
the date hereof and as at Completion :
1.1 The particulars of the Sale Shares and Debt contained in the recitals
and in Schedule 1 to this Agreement are complete, true and accurate in
all respects.
1.2 The Vendor is the beneficial owner of the Sale Shares and is entitled
to sell and transfer or procure the sale and transfer the full legal
and beneficial ownership of the Sale Shares free and clear of any lien,
charge, or encumbrance or restrictions whatsoever to the Purchaser or
its nominees and, upon Completion, the Purchaser will acquire full
legal and beneficial ownership of the Sale Shares free and clear of any
liens, charges, pledges, claims, agreements or other encumbrances or
restrictions whatsoever, except that the Sale Share registered in the
name of Xxxx (UK) was intended to be held on trust for the Vendor as
beneficial owner, any existing trust of which shall be cancelled upon
Completion.
1.3 There are no options, rights to acquire, mortgages, charges, pledges,
liens or other form of security or encumbrance on, over or affecting
all or any of the Sale Shares and there is no agreement, understanding,
arrangements contract or commitment to give or create any of the
foregoing and no claim has been made by any person, firm, company or
entity to be entitled to any of the foregoing.
1.4 The Vendor has full legal authority to enter into this Agreement and to
perform all obligations and duties hereunder without the consent,
approval, permissions, licence or concurrence of any third party.
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1.5 The Company does not have any liabilities other than those disclosed in
its latest management accounts or subsequently incurred in the ordinary
course of business.
1.6 The Vendor shall not be liable under the Warranties after the
expiration of 21 calendar months from Completion except in respect of
those matters which have been made subject to a claim hereunder prior
to the expiration of such 21 calendar month period.
1.7 The aggregate liability of the Vendor in respect of any breach of
Warranties hereunder together with the aggregate of all other
liabilities of the Vendor and the Vendor's affiliates (being its
holding company and subsidiaries and fellow subsidiaries of its holding
company) under the indemnification provisions of Other Agreements shall
not exceed Nine Million Nine Hundred Thousand US dollars
(US$9,900,000).
1.8 The Vendor shall be under no liability in respect of any breach of
Warranties hereunder:-
1.8.1 unless the amount claimed when aggregated with the amount of
any other claims based on warranty provisions in the Other
Agreements based on essentially the same or similar facts
exceed US$ 330,000 and in such event only an amount or amounts
in excess of US$200,000 shall be payable;
1.8.2 in respect of any matter, act, omission or circumstance which
would not have occurred but for:-
(i) any act, omission or transaction of the Purchaser
after Completion; or
(ii) the passing of, or any change in, after the date of
this Agreement, any law, regulation or administrative
practice of any government, governmental department,
agency or regulatory body.
1.8.3 to the extent that any loss suffered by the Purchaser as a
result of such breach has already been compensated under any
other provision of this Agreement so that a claim under the
Warranties for such loss would constitute double recovery by
the Purchaser
1.8.4 unless full written particulars of such claim are delivered to
the Vendor not later than the last day of the twenty first
full month after the anniversary of Completion
1.9 In the event that any action or claim is brought against the Purchaser
or the Company or any other circumstance arising in respect of which
the Purchaser believes it is entitled to make a claim under the
Warranties the Purchaser shall give to the Vendor prompt written notice
thereof, specifying the subject matter of the claim or action and the
amount claimed. The Vendor will then have a period of 30 days within
which to respond in writing to the notice and if liability is admitted
in part or in whole by the Vendor and subject to Clauses 1.6, 1.7 and
1.8 the Vendor shall within 30 days pay the amount claimed or if
admitted in part then pay the amount admitted, failing which the matter
shall be submitted to arbitration (pursuant to Clause 17) either as to
the whole amount in dispute or such part as is not agreed.
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1.10 The amount capable of being claimed by the Purchaser under this
paragraph shall be reduced (but not below zero) by any insurance
proceeds (net of reasonable expenses and other costs in obtaining such
proceeds) which any party under this Agreement shall receive or
otherwise enjoy with respect to the event that gave rise to the claim.
1.11 The limitations on the Warranties as to amount and time shall not apply
in the case of fraud or intentional breach of covenant by the Vendor.
1.12 Save as otherwise provided in this Agreement nothing in this Agreement
shall relieve the Purchaser of its right or obligation to mitigate its
loss in respect of any breach of the Warranties.
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SCHEDULE 3
THIS DEED OF ASSIGNMENT is made this day of , 2001
BETWEEN
(1) XXXX GRAPHICS EUROPE LIMITED a company incorporated in England whose
registered office is at Xxxxxxx Xxxx Xxxx Xxxxxxxx Xxxxx XX00 0XX
("Xxxx (UK)"); and
(2) XXXX GRAPHICS EUROPE B.V. a company incorporated in the Netherlands
whose principal office is at Kanaaldijk 0Z3 8100 Raalte, The
Netherlands ("Xxxx (NL)); (and hereinafter collectively referred to as
"the Assignors"); and
(3) NESCHEN INTERNATIONAL B.V. a corporation established under the laws of
the Netherlands whose office is at Mijkenbroek 18 in XX - 0000 Xxxxx,
Xxx Xxxxxxxxxxx ("the Assignee")
WHEREAS :
A. By the agreement for sale and purchase of shares in Xxxx Graphics
Pacific Limited ("Company") and Debts (as defined hereinafter) dated
[ ] 2001 ("the Agreement") made between (inter alia) the
Assignors and the Assignee, the Assignors agreed to sell and assign to
the Assignee and the Assignee agreed to purchase and accept an
assignment of all the benefits of the Debts from the Company subject to
the terms and conditions therein contained.
B. At the date hereof, the Company is indebted to Xxxx (UK) and Xxxx (NL)
the Assignors by way of debts or otherwise in the total sum of
HK$5,619,950 ("the Debts").
NOW THIS DEED WITNESSETH in consideration of the terms and conditions contained
in the Agreement and in consideration of the net asset value of the Company
determined in Clause 5 of the Agreement ("the NAV") to be paid by the Assignee
to the Assignors as the consideration for assignment of the rights to repayment
of the Debts, to be paid in two instalments, the first instalment being
HK$2,092,800 to be paid on the date hereof and the second instalment being the
balance of the NAV to be paid within 30 days from the date of Completion of the
Agreement (receipt of the first instalment whereof the Assignors hereby
acknowledge), the Assignors as beneficial owners hereby assign unto the Assignee
their rights to repayment of the Debts together with all rights, title, interest
and benefit of the Assignors which are now or which may at any time hereafter be
attached thereto or arising therefrom (including all accrued interest thereon)
free from all claims charges, liens, encumbrances, equities and third party
rights to hold the same unto the Assignee absolutely.
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IN WITNESS whereof the Assignors executed this Deed the day and year first above
written.
DULY EXECUTED AS A DEED but not delivered )
until it is dated )
for and on behalf of XXXX GRAPHICS EUROPE )
LIMITED )
By
Director
Director/Secretary
DULY EXECUTED AS A DEED )
for and on behalf of XXXX GRAPHICS EUROPE )
B.V. )
By )
Duly Authorised )
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SCHEDULE 4
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Other Agreements
Asset Purchase Agreement by and among Xxxx Corporation, Xxxx Holdings Inc, Xxxx
Graphics Americas Corporation Neschen AG Seal Graphics Americas Corporation Seal
USA Corporation and Seal Graphics Technologies Corporation
UK Asset Purchase Agreement by and among Xxxx Corporation Xxxx Graphics Europe
Limited Neschen AG and Seal Graphics UK Limited
Netherlands Asset and Purchase Agreement between Xxxx Graphics Europe BV Peak BV
Xxxx Corporation Seal Graphics Europe BV and Neschen AG
All of October 2001
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ANNEXURE "A"
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MANAGEMENT ACCOUNTS
Net Asset Value As At 2nd September 2001 (HK$)
Bank and Cash Balances 171,958
Net Accounts Receivable 566,620
Net Inventory including Goods in transit 1,879,975
Prepayments and Deposits 194,319
Fixed Assets at NBV 26,516
LESS
Accounts Payable 87,523
Accrued liabilities 135,865
NET ASSET VALUE 2,616,000
Financed By
Balance due to Xxxx UK 4,754,210
Balance due to Xxxx XX 723,725
Share Capital 10,000
Retained Earnings & P&L account (2,871,935)
TOTAL 2,616,000
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