RESTRUCTURING AGREEMENT
Exhibit 99.1
Execution Copy
Execution Copy
This RESTRUCTURING AGREEMENT (“Agreement”) is executed on this 20/th/ day of September, 2003
BETWEEN
(1) XXX.XXX LIMITED (“XXX”), a company incorporated in the Cayman Islands and having its
registered address at X.X. Xxx 000, Xxxxxx Xxxxx, Xxxxx Church Street, Xxxxxx Town, Grand Cayman,
Cayman Islands, British West Indies;
(2) XXX Online Inc. (“XXX Online”), a company incorporated in the Cayman Islands and having its
registered address at Xxxxxx House, X.X. Xxx 000, Xxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx; and
(3) Rich Wealth Holdings Limited (“Rich Wealth”), a company incorporated in the Cayman Islands and
having its registered address at Scotia Centre, 4/th/ Floor, X.X. Xxx 0000, Xxxxxx Xxxx, Xxxxx
Xxxxxx, Xxxxxx Xxxxxxx.
WHEREAS
(A) Laurstinus Limited (“Laurstinus”) is a company incorporated in the British Virgin Islands and
as at the date hereof has an authorised share capital of US$50,000 divided into 50,000 shares of
US$1.00 each (“Laurstinus Shares”), of which 1 Laurstinus Share has been issued and is fully paid
up and is held by XXX.
(B) Lahiji Vale Limited (“Lahiji”) is a company incorporated in the British Virgin Islands and as
at the date hereof has an authorised share capital of US$50,000 divided into 50,000 shares of
US$1.00 each (“Lahiji Shares”), of which 1 Lahiji Share has been issued and is fully paid up and is
held by XXX.
(C) Advanced Internet Services Limited (“AIS”) is a company incorporated in Hong Kong and as at
the date hereof has an authorised share capital of US$100,000 divided into 10,000,000 shares of
US$0.01 each (“AIS Shares”) and all the 10,000,000 AIS Shares have been issued and are fully paid
up. As at the date hereof, 9,999,999 AIS Shares are held by Rich Wealth and 1 AIS Share is held by
a nominee on trust for Rich Wealth.
(D) XXX Online is a company incorporated in the Cayman Islands and as at the date hereof has an
authorised share capital of US$50,000 divided into 50,000 shares of US$1.00 each (“XXX Online
Shares”), of which 1 XXX Online Share has been issued and is fully paid up and is held by XXX.
(E) The parties hereto are desirous of undergoing a restructuring exercise in accordance with
Clause 2 below (“Restructuring”) whereby, inter alia, Laurstinus and Lahiji will be transferred
from being the
direct wholly-owned subsidiaries of XXX to being the direct wholly-owned subsidiaries of XXX
Online, and AIS will be transferred from being a direct wholly-owned subsidiary of Rich Wealth to
being a direct wholly-owned subsidiary of XXX Online.
(F) Each of the parties hereto has delivered to the other parties on or before the date hereof a
certified copy of its board resolutions authorising such party to enter into this Agreement and to
perform the matters contemplated hereto.
NOW IT IS HEREBY AGREED as follows:
1. RESTRUCTURING
1.1 The parties hereto shall take all such actions within their powers to cause the following
transactions to be completed on 20/th/ September, 2003 “Completion Date”):
(a) (i) XXX shall transfer its entire shareholding in Laurstinus (the “Laurstinus Assignment
Share”) to XXX Online.
(ii) The consideration for the assignment of the Laurstinus Assignment Share shall be
satisfied by the issue of 1 new XXX Online Share, credited as fully paid, to XXX.
(b) (i) XXX shall transfer its entire shareholding in Lahiji (the “Lahiji Assignment Share”)
to XXX Online.
(ii) The consideration for the assignment of the Lahiji Assignment Share shall be satisfied by
the issue of 1 new XXX Online Share, credited as fully paid, to XXX.
(c) (i) Rich Wealth shall and procure its nominee to transfer the entire shareholding in AIS
(the “AIS Assignment Shares”) to XXX Online and its nominee.
(ii) The consideration for the assignment of the AIS Assignment Shares shall be satisfied by
the issue of 1 new XXX Online Share, credited as fully paid, to XXX (as nominated by Rich Wealth).
1.2 As consideration for the assignment of the Laurstinus Assignment Share, the Lahiji Assignment
Share and the AIS Assignment Shares referred to Clause 1.1 above, XXX Online will issue and allot
on the Completion Date a total of 3 new XXX Online Shares, credited as fully paid, to XXX.
1.3 Save as otherwise set out in this Agreement, ownership and risk in each of the Laurstinus
Assignment Share, the Lahiji Assignment Share and the AIS Assignment Shares shall pass to XXX
Online with effect from Completion.
2. COMPLETION
2.1 Completion of the matters described in Clauses 1.1 and 1.2 above (“Completion”) shall
take place at 11:30 a.m. on the Completion Date at
48/th/ Floor, The Center, 99 Queen’s Road Central, Central, Hong Kong when all (and not some only)
of the events described in this Clause 2 shall occur.
2.2 At Completion:
(a) XXX shall deliver to XXX Online:
(i) an instrument of transfer duly executed by XXX including any document, such as necessary
waivers of pre-emption rights as may be required to enable XXX Online to be registered as the
holder of each of the Laurustinus Assignment Share and the Lahiji Assignment Share) in respect of
each of the Laurstinus Assignment Share and the Lahiji Assignment Share in favour of XXX Online;
and
(ii) the original share certificates in respect of the Laurstinus Assignment Share and the
Lahiji Assignment Share for cancellation;
(b) Rich Wealth shall deliver to XXX Online:
(i) an instrument of transfer duly executed by each of Rich Wealth and its nominee in respect
of the AIS Assignment Shares (including any document, such as necessary waivers of pre-emption
rights as may be required to enable XXX Online to be registered as the holder of the AIS Assignment
Share) in favour of XXX Online and its nominee, respectively; and
(ii) the original share certificates in respect of such AIS Assignment Shares for
cancellation;
(c) XXX Online shall issue and allot a total of three (3) new XXX Online Shares to XXX as set
out in Clause 1.2 and shall deliver to XXX the original share certificate(s) in respect of the
allotment of such new XXX Online Shares;
(d) a copy of a resolution of the board of directors of XXX Online approving the registration
of XXX as the registered owner of the new XXX Online Shares referred to in Clause 1.2; and
(e) copies of resolutions of each of the board of directors of XXX and Rich Wealth,
authorizing the execution of and the performance by XXX or Rich Wealth (as the case may be) of
their obligations under this Agreement and the transactions contemplated by it.
3. FURTHER ASSURANCE
The parties hereto shall do and execute or procure to be done and executed all such further
acts, deeds, things and documents as may be necessary to give effect to the Restructuring and the
other terms of this Agreement.
4. WARRANTIES
4.1. XXX hereby warrants and represents to XXX Online that:
(a) it has power to enter into this Agreement and to fulfil (or procure the fulfillment of)
its obligations herein;
(b) it has and will at Completion have the right to sell and transfer full legal and
beneficial ownership in each of the Laurstinus Assignment Share and the Lahiji Assignment Share to
XXX Online pursuant to Clause 1.1(a) and (b) free and clear of any lien, pledge, charge or mortgage
encumbrance, interest or equity of any person (including any right to acquire, option or right of
pre-emption or conversion), assignment, hypothecation, security interest, title retention or any
other security agreement or arrangement, any agreement to create any of the above, or any other
rights exercisable by third parties whatsoever; and
(c) as at the date hereof and as at Completion, there is no outstanding indebtedness or
liability, including any guarantee or indemnity, owing by Laurstinus or Lahiji to any party
whatsoever.
4.2. Rich Wealth hereby warrants and represents to XXX Online that:
(a) it has power to enter into this Agreement and to fulfil (or procure the fulfillment of)
its obligations herein;
(b) it has and will at Completion have the right to sell and transfer full legal and
beneficial ownership in all of the AIS Assignment Shares to XXX Online pursuant to Clause 1.1(c)
free and clear of any lien, pledge, charge, mortgage, encumbrance, interest or equity of any person
(including any right to acquire, option or right of pre-emption or conversion), assignment,
hypothecation, security interest, title retention or any other security agreement or arrangement,
any agreement to create any of the above, or any other rights exercisable by third parties
whatsoever, and
(c) as at the date hereof and as at Completion, there is no outstanding indebtedness or
liability, including any guarantee or indemnity, owing by AIS to any party whatsoever.
5. MISCELLANEOUS
5.1 XXX Online shall bear all the costs and expenses (including the stamp duty (if any) payable
for the transfer to it of the Laurstinus Assignment Share, the Lahiji Assignment Share and the AIS
Assignment Shares and all fees and charges incurred by the parties hereto) in connection with the
preparation, negotiation and entering into of this Agreement. In the event that Completion does not
occur for any reason whatsoever, each party hereto shall pay its own legal costs associated with
the negotiation and entering into of this Agreement.
5.2 Each notice, demand or other communication given or made under this Agreement shall be in
writing and delivered or sent to the relevant party at its address or fax number set out below (or
such other address or fax number as the addressee has by five (5) days’ prior written notice
specified to the other parties):
To XXX: | XXX.XXX LIMITED | |||
00/xx/ Xxxxx, Xxx Xxxxxx | ||||
00 Xxxxx’x Xxxx Xxxxxxx | ||||
Xxxxxxx | ||||
Xxxx Xxxx | ||||
Fax number: 0000 0000 | ||||
Attention: The Company Secretary | ||||
To XXX Online: | XXX Online Inc. | |||
00/xx/ Xxxxx, Xxx Xxxxxx | ||||
00 Xxxxx’x Xxxx Xxxxxxx | ||||
Xxxxxxx | ||||
Xxxx Xxxx | ||||
Fax number: 0000 0000 | ||||
Attention: The Company Secretary | ||||
To Rich Wealth: | Rich Wealth Holdings Limited | |||
00/xx/ Xxxxx, Xxx Xxxxxx | ||||
00 Xxxxx’x Xxxx Xxxxxxx | ||||
Xxxxxxx | ||||
Xxxx Xxxx | ||||
Fax number: 0000 0000 | ||||
Attention: The Company Secretary |
Any notice, demand or other communication so addressed to the relevant party shall be deemed
to have been delivered (a) if given or made by letter, when actually delivered to the relevant
address: and (b) if given or made by fax, when dispatched.
5.3 No failure or delay by the parties hereto in exercising any right, power or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same
preclude any further exercise thereof or the exercise of any other right, power or remedy. Without
limiting the foregoing, no waiver by any party to the Agreement of any breach by the other party of
any provision hereof shall be deemed to be a waiver of any subsequent breach of that or any other
provision hereof. If at any time any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect, the legality, validity and enforceability of the remaining provisions
of this Agreement shall not be affected or impaired thereby.
5.4 This Agreement shall not be assignable without prior written consent of all the parties
hereto.
5.5 This Agreement (together with any documents referred to herein) constitutes the whole
agreement between the parties hereto and it is expressly declared that no variations hereof shall
be effective unless made in writing.
5.6 This Agreement may be signed in any number of counterparts, all of which taken together shall
constitute one and the same document.
6. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the Hong Kong
Special Administrative Region and the
parties hereto irrevocably submit to the non-exclusive jurisdiction of the Hong Kong courts.
IN WITNESS whereof this Agreement is executed by the parties on the day and year first above
written.
SIGNED by
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for and on behalf of
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XXX.XXX LIMITED
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in the presence of:-
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SIGNED by
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for and on behalf of
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XXX ONLINE INC.
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in the presence of:-
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SIGNED by
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for and on behalf of
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RICH WEALTH HOLDINGS LIMITED
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in the presence of:-
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