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EXHIBIT 2.2
Dated the 28th day of May 1999
NAM TAI ELECTRONIC AND ELECTRICAL PRODUCTS LIMITED
(as Xxx Xxx)
and
MICRO BUSINESS SYSTEMS IND. CO., LTD
(as Company)
and
XXX XXXX XXX
(as Xxx)
********************************************************************************
AGREEMENT FOR THE SALE AND PURCHASE AND ASSIGNMENT OF THE
BUSINESS AND THE ASSETS OF MICRO BUSINESS SYSTEMS IND. CO., LTD
********************************************************************************
Xxxxxxx Xxx, Xxxxxxx Xxx & Xx, Solicitors,
20/F., Crocodile House One,
00 Xxxxxxxxx Xxxx Xxxxxxx,
Xxxx Xxxx.
Ref.: C/CHU/7782/99
(JK/NamTai (2) IA: \Micro\S&P-Shares)
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INDEX
CLAUSE PAGE
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Recitals 1
1. Interpretation 1-3
2. Assignment of Business and Assets 4
3. Job Duty of Xxx 4
4. Representation and Warranties 4-6
5. Completion Date 6
6. Conditions Precedent 6-7
7. Completion 7-9
8. Consequence of Completion 9
9. Forecast and Budget 9
10. Activities of Company 10-11
11. Assignment of Contract 11
12. Legal Costs 11
13. Tax and Formalities 11-12
14.-19. Miscellaneous Provisions 12-14
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THIS AGREEMENT is made the 28th day of May One thousand nine hundred and
ninety-nine
BETWEEN:-
(1) The CORPORATION named in Part I of the First Schedule (hereinafter
called "Nam Tai"); and
(2) The CORPORATION named in Part II of the First Schedule (hereinafter
called the "Company"); and
(3) The PERSON named in Part III of the First Schedule (hereinafter
collectively called "Xxx").
WHEREAS:-
(A) The Company is a private company limited by shares incorporated in the
Republic of Korea on the 26th day of February 1992 and has at the date
hereof an authorized share capital of Korean Won $50,000,000.00 divided
into 10,000 ordinary shares and the entire authorized share capital have
been issued and fully paid up. The Certificate of Business Registration,
the Certificate of Registered Signature, the Business Certificate and
the Articles of Association of the Company are attached herewith and
marked as Appendix A.
(B) The Company is carrying on the business as hereinafter more particularly
defined and called the "Business".
(C) Xxx Xxx has agreed to purchase the Business and the Assets from the
Company upon and subject to the terms and conditions hereinafter
appearing.
NOW IT IS XXXXXX AGREED as follows:-
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1. (A) In this Agreement and the Schedules hereto, unless the context
otherwise requires:-
"Assets" means the assets of the Company more
particularly mentioned in the Second
Schedule and the Appendixes I, II, III, IV
of this Agreement.
"Business" means the business of research and design of
and development and the marketing and sale
of telecommunication products and including
but not limited to low frequency 900MHz
cordless telephones.
"the Agreement" means this Agreement.
"the Board" means the Board of Directors of the Company.
"Completion" means the performance on the Completion Date
by the parties hereto of the several
obligations contained in Clause 7;
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"Completion Date" means the date referred to in Clause 5;
"Encumbrance" means any charge, lien, equity, third party
right, option, right of pre-emption or any
other encumbrance, priority or security
interest of whatsoever nature;
"Equipment & Toolings" means those moulds and toolings that are
relevant to the Business and referred to as
item (1) of the Assets.
"Employees" means the persons referred to in the Fourth
Schedule.
"Licences and Approvals" means Licences and Approvals
and pending applications for approval as
referred to items 3(a) & (b) of the Assets
and all intellectual property rights in
connection therewith.
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(B) In this Agreement, unless the context otherwise requires, the singular
includes the plural and vice versa, words importing any gender include
every gender and references to persons include corporations and
unincorporated body of persons.
2. In consideration of Nam Tai agreeing to the terms and provisions of this
Agreement, the Company agrees to assign its Business and Assets
absolutely and free from encumbrances to Nam Tai on Completion Date and
to comply with or perform all other provisions to be complied with or
performed on the part of the Company for the total consideration of
United States of America Dollar SEVEN HUNDRED THOUSAND (US$700,000.00)
(hereinafter called the "Purchase Price") upon Completion.
3. In consideration of Xxx Xxx agreeing to the terms and provisions of this
Agreement Xxx agrees to assume the job as a full time employee of Xxx
Xxx.
4.1 The Company and Xxx xxxxxx jointly and severally represent, warrant and
undertake to Nam Tai that the Company has the right and authority to
sell the Business and Assets free from all claims, charges, liens,
encumbrances and equities whatsoever and together with all rights
attached, accrued or accruing thereto on or after the date hereof to Nam
Tai.
4.2 The Company and Xxx xxxxxx jointly and severally
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represent, warrant and undertake to Xxx Xxx in the terms set out in this
Clause 4 and the Third Schedule (hereinafter collectively called the
"Warranties" and singly called the "Warranty") and that each of the
Warranties and the matters disclosed in relation thereto will at
Completion and will at all times between the date of this Agreement and
the Completion Date be true and correct in all respects. On Completion
the Company and Xxx shall be deemed to have repeated the same on such
basis. The Company and Xxx agree and acknowledge that Xxx Xxx is
entering into this Agreement in reliance on the representations and
Warranties and the matters disclosed.
4.3 The Company and Xxx hereby jointly and severally agree with Xxx Xxx to
indemnify and hold Nam Tai harmless from and against all reductions in
value, liabilities, damages, costs, claims and expenses (including legal
expenses on solicitor-and-client basis) which Nam Tai may sustain,
suffer or incur as a result of false representation or any breach of the
Warranties or any provisions of this Agreement.
4.4 The Company and Xxx shall forthwith notify Nam Tai upon it becoming
aware of any event which may cause any of the representations,
warranties and undertakings set out in this Clause 4 and in the Third
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Schedule to be incorrect, misleading or breached in any material respect
or which may have any material adverse effect on the Assets and or the
Business.
4.5 Each of the representations, Warranties shall be construed as a separate
Warranty and shall not be limited or restricted by reference to or
inference from the terms of any other representations, Warranties.
4.6 The Company and Xxx jointly and severally undertake, in relation to any
Warranty which refers to the knowledge, information or belief of the
Company and Xxx that it has made reasonable enquiry into the subject
matter of the representations, Warranty and that it does not or ought to
have the knowledge, information or belief that the subject matter of
that Warranty may not be correct, complete or accurate in all respects.
4.7 The representations, Warranties contained in this Agreement shall remain
in full force and effect notwithstanding and surving the Completion.
5. Completion of the sale and purchase of the Business and assignment of
the Assets shall take place on or before the 4th June 1999.
6.1 The fulfilment of the provisions of clause 6.2 hereof on or before the
Completion Date are conditions
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precedent to the obligation of Xxx Xxx to complete the purchase of the
Business and the Assets.
6.2 The condition precedents are:-
(i) After the signing of this Agreement, the Company shall authorise
Xxx Xxx the exclusive use of the Licences and Approvals. Save
and except with the written consent of Nam Tai the Company shall
not apply the Licences and Approvals for any use or purpose.
(ii) The Company has already delivered to Nam Tai the entirety of
Equipment and Tooling in good and working conditions.
(iii) The Company shall have informed the respective issuers of the
Licences and Approvals that the Company requesting to the same
to be registered under the name of Nam Tai pending the
Completion.
6.3 If any of the provisions of clause 6.2 hereof have not been complied
with Xxx Xxx shall, without prejudice to any of its other legal rights,
have the option to:-
(a) rescind the sale and purchase of the Business and or the Assets;
or
(b) waive any one of such conditions and proceed to completion so
far as practical; or
(c) defer Completion for such a period for the fulfilment of the
conditions referred to in clause 6.2.
7.1 On Completion the Company shall deliver to Nam Tai:-
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(i) an duly signed Assignment assigning the Business and the Assets
to Nam Tai absolutely and be in a format satisfactory to Nam
Tai;
(ii) the original certificates or documentary evidence of the
Licences and Approvals registered under the name of Xxx Xxx; or
the original certificates or documentary evidence of the
Licences and Approvals registered under the name of the Company
together with the duly signed original Declaration of Trust
declaring the Company as a trustee to hold the Licences and
Approval for Xxx Xxx and that Xxx Xxx shall have the exclusive
unrestricted right to use and apply the same for its business;
(iii) the original minutes of meeting of the Board duly approving the
Company to enter into this Agreement and in particular to assign
the Business and the Assets to Nam Tai in accordance with the
terms and conditions of this Agreement;
(iv) such other documents as may be reasonably required to give a
good title to the Business and the Assets and to enable Nam Tai
or its nominee(s) to become the registered holders thereof;
(v) the duly signed employment contract for a fixed term of 3 years
by Xxx with Xxx Xxx in the form as approved by Xxx Xxx;
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(vi) the duly signed employment contracts for a fixed term of 3 years
by each one the Employees with the Company in the form as
approved by Nam Tai which specifying the respective annual
salaries as particularised in the Fourth Schedule and the rate
be subject to review once every year;
(vii) the Company shall take such actions as shall reasonably require
for the purpose of this Agreement and shall be duly transacted.
7.2 On Completion Nam Tai shall pay the Purchase Price to the Company or its
nominee(s) and be in such manner as confirmed by the Company in writing.
8. The provisions of clause 9 to clause 10 (inclusive) are conditional upon
Completion taking place in accordance with this Agreement and such
provisions shall not take effect if Completion does not take place for
whatever reasons.
9. Xxx Xxx shall be responsible to settle for the Company the overhead
expenses of the Company according to the Budget as referred to in the
Fifth Schedule.
10.1 The Company and Xxx jointly and severally undertake and agree with Xxx
Xxx that after Completion all the results and intellectual property
rights of the research and development of the Company shall belong to
Nam Tai. Save and except with the consent in writing of Nam Tai the
Company shall not carry on any business activities directly
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or indirectly. The Company will not at Completion be the owner or the
registered holder of any share or interest in or other security of or
directly or indirectly interested in any body corporate, partnership,
joint venture or any form of equity wherever incorporated or
established.
10.2 Xxx agrees with Xxx Xxx that after Completion he will procure the
Company to cease business and or to be wound up voluntarily as and when
required by Xxx Xxx in writing to do so.
10.3 Subject to the provisions of clause 10.2 Xxx shall procure the Company
to maintain all licences, consent for the continual registration of the
Company with all the relevant governmental authorise and to comply with
all laws and regulations in the Republic of Korea.
10.4 Save and except with the written consent of Nam Tai the Company shall
not engage directly or indirectly in any activities whether the same be
in conflict with the interest of Nam Tai or whether the same is not
commercial in nature.
10.5 Xxx undertakes to procure himself and each of the Employees that they
shall work as a full time employee of the Company working exclusively to
provide services to Nam Tai in accordance with the respective employment
contracts and shall not be engaged directly or indirectly any other
business or employment or the provision of services whether
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the same be in conflict with the interests of Xxx Xxx.
10.6 The Company and Xxx jointly and severally represent that save and
otherwise agreed in writing the Forecast, Budget the Business from
Completion shall be as particularised in the Fifth Schedule attached
hereto.
10.7 The Company and Xxx jointly and severally undertake with and warrant to
Nam Tai that the Forecast and Budget of the Business as attached to the
Fifth Schedule are being prepared on a bona fide basis the actual result
thereof will be matched substantially.
11. This Agreement shall be binding on and enure for the benefit of each
party's successors. None of the parties hereto may assign or transfer
any of its rights hereunder without the prior written consent of the
other save and except that Xxx Xxx shall have the right to assign the
benefit of this Agreement to its parent company or to the other
subsidiaries of its parent company.
12. The Company and Xxx and Xxx Xxx shall respectively bear their own legal
costs and expenses incurred by it in connection with the negotiation,
preparation and approving of this Agreement and all matters and
documentation relating to the Completion.
13. The Company and Xxx xxxxxx jointly and severally undertake with the
Company that :-
(a) all the procedures, legal requirements as set by the
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laws and regulations of the Republic of Korea relating to this
Agreement shall be duly complied with the Company and Xxx and
other responsible persons, if any;
(b) all tax, levy if any payable to any taxation authorisation in
the Republic of Korea or otherwise in respect of this Agreement,
the assignment of the Business and Assets and the receipt of the
Purchase Price shall be duly paid by the Company, Xxx and other
persons, if any obliged to pay for such tax, levy under the laws
of the Republic of Korea.
14. Any notice required to be given by any of the parties to this Agreement
to the other party, shall be in writing and shall be deemed to have been
so given if addressed and being posted to or left at the respective
addressee at their registered offices or correspondence addresses herein
mentioned irrespective whether the same is returned through the post
undelivered.
15. No provisions hereof may be amended, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against
whom enforcement of the amendment, waiver, discharge or termination is
sought.
16. Time shall be of the essence of this Agreement but no failure or delay
by Xxx Xxx in exercising or enforcing any right, remedy, power or
privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial
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exercise or enforcement of any right, remedy, power or privilege. The
rights, remedies, powers and privileges of the parties herein provided
are cumulative and not exclusive of any rights remedies, powers or
privileges provided by law.
17. Any provision of this Agreement prohibited by or unlawful or
unenforceable under any applicable law actually applied by any court of
competent jurisdiction shall, to the extent required by such law, be
severed from this Agreement and rendered ineffective so far as is
possible without modifying the remaining provisions of this Agreement.
Where however the provisions of any such applicable law may be waived,
they are hereby waived by the parties hereto to the full extent
permitted by such law for the purpose that this Agreement shall be a
valid and binding agreement enforceable in accordance with its terms.
18. This Agreement shall be governed by and construed in all respects in
accordance with the Laws of Hong Kong and the parties hereto hereby
submit to the exclusive jurisdiction of the Courts of Hong Kong.
19. This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which when so
executed and delivered shall be an original but all the counterparts
together shall constitute one and the same instrument.
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IN WITNESS whereof the parties hereto have duly executed this Agreement
on the date and year first above written.
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FIRST SCHEDULE
Part I
NAM TAI ELECTRONIC AND ELECTRICAL PRODUCTS LIMITED the registered office of
which is situate at Xxxxx 0X-0, 00/X., Tower 1, China Hong Kong City, 00 Xxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxx.
Part II
Name of the Company
MICRO BUSINESS SYSTEMS IND. CO., LTD the registered office of which is situate
at 000- 00, Xxxxxxxx-xxxx, Xxxxxx Xx Xxxxx, Xxxxxxxx of Korea and the place of
business is situate at 0X Xxxxxxx Xxxx, 00-0, Xxxxxxx-Xxxx, Xxxxxx-Xx Xxxxx,
Xxxxx.
Part III
XXX XXXX SUN XXXXX of 5-201 Kumho Apartment 00 Xxxxxxxx-Xxxx, Xxxxxx-Xx, Xxxxx,
Xxxxx, holder of Republic of Korea Passport No.6625124.
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SECOND SCHEDULE
The Assets shall include the following items
1. Equipment and toolings and the particulars of which are set out in
Appendix I.
2. The deposit for office rental in the sum of US$16,600.00 and the
particulars of which are set out in Appendix II.
3. Intellectual Property rights which shall include:-
(a) All the licences and approvals of portable telephone models
MP-900 and MP-910 applicable to such countries and the
particulars of which are set out in Appendix III;
(b) All licences, approvals, trade marks, patents of other products
of the Company; and
(c) All other pending applications for approval for all products now
under research and development by the Company and all new ideas
or concept for future development of products.
4. Office equipment and the particulars of which are set out in Appendix
IV.
5. All existing purchase orders of the Company from the customers and
transactions pending negotiations between the Company and potential
customers.
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THIRD SCHEDULE
Representations. Warranties and Undertakings
1.1 Options over the Business and the Assets
There are no agreements in force which provide for the present or future
transfer of save and except as provided in this Agreement the right to
call for the transfer of the Business and or the Assets of the Company
or any part thereof whether for valuable consideration or otherwise.
1.2 No charges or liens have been created by the Company over the Business
and or the Assets or any part thereof.
2.1 Status of the Company
Due compliance has been made with all the provisions of the relevant
governmental regulations in force in the Republic of Korea in connection
with the formation and the continued subsistence of the Company and the
conduct of its business.
2.2 All document of title (if any) relating to the Assets and executed copy
of all agreements to which the Company is a party, and the original
copies of all other document which are owned by or which is related to
the Business and the Assets and ought to be in the possession of the
Company are in its possession.
2.3 Investigation
There are not pending, or in existence, any investigations or enquiries
or complaints of whatsoever nature by, or on behalf of, any governmental
or other body or any third party
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in respect of the Business or the Assets of the Company.
3. Information disclosed to Nam Tai are true and correct
3.1 All information provided by the Company and or Xxx to Xxx Xxx or its
solicitors Messrs. Xxxxxxx Xxx, Xxxxxxx Xxx & Xx relating to the
Company, the Business and the Assets were, when given, and are now
accurate and comprehensive in all material respects.
3.2 There are no material facts or circumstances, in relation to the Assets,
Business which have not been fully and fairly disclosed in writing by
the Company and or Xxx to Xxx Xxx or its solicitors, and which, if
disclosed, might reasonably have been expected to affect the decision of
Xxx Xxx to enter into this Agreement.
3.3 Since the provision of information to Nam Tai, there has been no
material adverse change in the Business, Assets.
4. The Company and or Xxx respectively have full power to enter into and
perform this Agreement and this Agreement constitutes legally valid and
binding obligations on the Company and Xxx and are enforceable in
accordance with the terms of this Agreement.
5. Effect of assignment of the Business and the Assets
5.1 Compliance with the terms of this Agreement does not and will not:-
(a) conflict with, or result in the breach of, or constitute a
default under, any of the terms of
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any agreement or instrument to which the Company is a
party, or any provision of the memorandum or articles of
association or other corresponding constitutional
documents of the Company;
(b) relieve any person from any obligation to the Company or
cause any person to determine any such obligation or any
right or benefit enjoyed by the Company;
(c) result in the creation, imposition, crystallization or
enforcement of any encumbrance whatsoever on any of the
Assets or the Business.
6. Agreements restricting business
The Company is not a party to any agreement or undertaking or assurances
given to any corporation court or governmental agency which is still in
force which restricts the carrying on of the Business or subject to any
court order restricting the carrying on of the Business in any manner.
7. Litigation. disputes and winding up
(1) The Company is not engaged in any litigation or arbitration
proceedings as plaintiff or defendant in relation to the
Business and or the Assets; there are no such proceedings
pending or threatened against the Company. No facts are known to
the Company and or Xxx which are likely to result in any such
proceedings being brought by or against the Company.
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(2) Xxx is not engaged in any litigation or arbitration proceedings
either as plaintiff or defendant. There are no investigation,
proceedings pending or threatened against Xxx which will
adversely affect the ability of Xxx to perform the obligations
on the part of Xxx to be performed.
(3) There is no dispute with any revenue or other official,
department in the Republic of Korea or elsewhere, in relation to
the Company and or Xxx or the Business or the Assets, and there
are no facts which may give rise to any dispute.
(4) No order has been made or petition presented or resolution
passed for the winding up of the Company; nor is there any
unfulfilled or unsatisfied judgment or court order outstanding
against the Company which may have an adverse effect upon the
Business and or the Assets.
(5) No receiver has been appointed of the whole or any part of any
of the Business and or the Assets of the Company.
8. Licences and Approvals
(1) All the Licences and Approvals as referred to in items 3 (a) &
(b) of the Second Schedule are valid and subsisting.
(2) The Company is not materially in breach of any of the
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terms or conditions upon which the Licences and Approvals are
being granted and there are no factors that might in any way
prejudice the continuation of any of them.
(3) The Company in the conduct of the Business has not used any
process and is not engaged in any activity which infringe any
patent, copyrights, trade marks, designs, business know-how
trade secrets or other intellectual property rights of any third
party.
(4) All the Licences and Approvals and pending applications for
approval in connection with the Business and or the Assets have
been exhaustively listed in Appendix III.
(5) In the event of any omission of any intellectual property right
of the Company relation to the Business and or Assets from item
3 of the Second Schedule hereof or such right created or
acquired by the Company after the date of this Agreement the
same shall be deemed to form part of the Assets to be assigned
to Nam Tai upon Completion.
(6) All intellectual property rights created or acquired by the
Company in relation to the Business and or the Assets or
otherwise after the Completion shall be deemed for all purposes
to belong beneficially to Nam Tai and if the same for the
meantime were to be registered under the name of the Company,
the Company
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shall be deemed to be a trustee of Xxx Xxx and account all the
benefit thereof to Xxx Xxx. The Company shall at the request of
Xxx Xxx execute such document that are necessary to render the
said intellectual property rights to be registered under the
name of Xxx Xxx.
9. General
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not result in the breach or
cancellation or termination of any of the terms or conditions of or
constitute of default under any agreement, commitment or other
instrument to which the Company is a party or by law or any rule or
regulation of any administrative agency or governmental body or any
order, writ, injunction or decree of any court, administrative agency or
governmental body affecting the Company.
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FOURTH SCHEDULE
Name of Employees Annual Salary in Korean Won
----------------- ---------------------------
1. Xxxx-Xxxxx Yeo Korean $ 60,000,000.00
2. Xxxx-Xxxxx Xxxx Korean $ 60,000,000.00
3. Xxxxx Xxx Korean $ 40,000,000.00
4. In-Tschol (xxxxxx) Xxx Xxxxxx $ 32,000,000.00
5. Xxx-Xxxxx Xx (Xxx) Korean $ 30,000,000.00
6. Xxxx-Sil Xxx Korean $ 17,000,000.00
7. Xxx-Xxxx Xx Korean $ 12,000,000.00
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FIFTH SCHEDULE
Forecast and Budget
Monthly Budget of the Company for the FORECAST
1. Xxx Xxxx US$ 18,000.00
2. Telecom US$ 1,000.00
3. Office Rental US$ 1,000.00
4. Travel US$ 4,000.00
5. Others US$ 5,000.00
-------------
US$ 29,000.00
=============
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SIGNED by Xxx Xxx by its ) For and on behalf of
) XXX XXX ELECTRONIC & ELECTRICAL
Director ) PRODUCTS LIMITED
)
) /s/ Xxxxx Xxxxxxxx
) ----------------------------------
in the presence of:- ) Authorized Signature
XXXXXXX XXXX XXXX XXX
Solicitor, Hong Kong XXX
XXXXXXX XXX, XXXXXXX XXX & WU
SIGNED by the Company its )
) MICRO BUSINESS SYSTEMS IND. CO., LTD.
Director Xxx Xxxx Xxx )
) /s/ Xxx Xxxx Xxx
) ----------------------------------
in the presence of:- ) President
XXXXXXX XXXX XXXX XXX
Solicitor, Hong Kong XXX
XXXXXXX XXX, XXXXXXX XXX & XX
SIGNED by Xxx Xxxx Xxx ) /s/ Xxx Xxxx Xxx
) ----------------------------------
in the presence of:- )
XXXXXXX XXXX XXXX XXX
Solicitor, Hong Kong XXX
XXXXXXX XXX, XXXXXXX XXX & WU
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