Contract
Exhibit
10.1
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Dated
the
6th
day of August 2006
Comtech
Group
(the
“Seller”)
United
Information Technology Co. Ltd. (Cayman)
(the
“Purchaser”)
and
others
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AGREEMENT
for the SALE AND PURCHASE of
SHARES
in
UNITED
INFORMATION TECHNOLOGY CO., LTD. (BVI)
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1
THIS
AGREEMENT is
made
the 6th
day of
August 2006
BETWEEN:
| (1) |
Comtech
Group, a company incorporated and existing under the laws of the
Cayman
Islands and whose registered office is at PO
Box 309GT, Xxxxxx House, South Church Street, Grand Cayman, Cayman
Islands
(the “Seller”),
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| (2) |
United
Information Technology Co., Ltd.,
a
company incorporated and registered in Cayman Islands and whose registered
office is at whose registered office is at Codan Trust Company (Cayman)
Limited, Century Yard, Cricket Square, Xxxxxxxx Drive, P.O. Box 2684
GT,
Xxxxxx Town, Grand Cayman, Cayman Islands (the “Purchaser”),
|
| (2) |
United
Information Technology Co., Ltd.,
a
company incorporated and registered in the British Virgin Islands
and
whose registered office is at East Asia Xxxxxxxx, P.O. Box 901, Road
Town,
Tortola, the British Virgin Islands (the “Company”),
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| (3) |
[
] ,
a
wholly foreign owned enterprise established in the People’s Republic of
China whose address in China is at Xxxx 0000/0000, Xxxxxx Xxxxxxxx,
Xxxx
South 12th Road, High-Tech Industrial Park, Nanshan District, Shenzhen,
PRC (the “Subsidiary”),
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| (4) |
Xxxx
Xxx (holder
of Canadian Passport no. XX000000) of XX
Xxx 0000, Xxxxxxx Xxxx Xxxxxx, Xxxxxxx Xxxx Xxxx (“Chen”),
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| (5) |
Xxx
Xxxx Li,
(holder
of [Canadian Permanent Resident card no. RL0103002203] of Xxxx 0000/0000,
Xxxxxx Xxxxxxxx, Xxxx South 12th Road, High-Tech Industrial Park,
Nanshan
District, Shenzhen, PRC
(“Lin”),
|
| (6) |
Xxx
Xxx Ming (holder
of Hong Kong Identity Card no. X000000(0)) of Xxxx X, 00/X, Xxxxx
0,
Xxxxxxxxxxxx Xxxxxxx, 0 Xxx Xxxx Xxxx, Xxxxxxxx Xxx, Xxxx Xxxx (“Xxx”),
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| (7) |
Chan,
William,
(holder of [PRC] [Hong Kong] identity card no. X000000(0)) of Xxxx
0000/0000, Xxxxxx Xxxxxxxx, Xxxx South 12th Road, High-Tech Industrial
Park, Nanshan District, Shenzhen, PRC (“Chan”),
and
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| (8) |
Pioneer
System Investment Limited a
company incorporated under the laws of the British Virgin Islands
whose
registered office is situate at East Asia Xxxxxxxx, P.O. Box 901,
Road
Town, Tortola, the British Virgin Islands (“Pioneer”).
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WHEREAS:
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(A)
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The
Company has an authorized share capital of US$50,000 divided into
50,000
shares of US$1.00 each of which 10,000 have been issued and are fully
paid
up.
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(B)
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The
Seller is the legal and beneficial owner of 10,000 shares of US$1.00
each
in the capital of the Company being all issued shares of the Company
(the
“Sale
Shares”),
and has agreed to sell and the Purchaser has agreed to purchase the
Sale
Shares upon the terms and conditions of this
Agreement.
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(C)
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The
Company, the Seller, the Subsidiary, Chen, Lin, Xxx, Xxxx and Pioneer
had
entered into an agreement dated 12 May 2005 pursuant to which, inter-alia,
the Seller agreed to grant a loan to the Company and the parties
agreed to
regulate their relationship in respect of the Company (the “Shareholders
Agreement”).
A copy of the Shareholders Agreement is annexed at Exhibit A of this
Agreement.
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2
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(D)
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The
Company agreed to repay any and all loans due under the Shareholders
Agreement and the Seller has agreed to discharge the Company of all
obligations under the Shareholders Agreement and outstanding amounts
due
by the Company to the Seller upon repayment.
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IT
IS HEREBY AGREED AS FOLLOWS:
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1.
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DEFINITIONS
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1.01
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In
this Agreement, save where the context otherwise requires, the following
expressions shall have the following meanings
:
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| “Completion” |
means
the completion of the sale and purchase of the Sale Shares pursuant
to
this Agreement;
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| “Repayment of Loan” |
means
the repayment of all loans and debts (including any and all interest
thereon) due and owing by the Company, the Subsidiary and any other
subsidiary of the Company, to the Seller, such repayment being in
an
amount not exceeding US$2,500,000;
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“Consideration”
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means
US$1,250,000;
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| “Sale Shares” |
has
the same meaning as defined in the recitals
above;
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| “Termination Agreement” |
means
the termination agreement in the form attached hereto as Exhibit
D.
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| 1.02 |
The
headings are for ease of reference only and shall be ignored in
interpreting this Agreement.
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1.03
|
Reference
to Clauses, Exhibits and annexures are references to clauses, exhibits
and
annexures of or to this Agreement.
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| 1.04 |
Words
and expressions in the singular include the plural and vice
versa.
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1.05
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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.
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2.
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SALE
AND PURCHASE
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Subject
to the terms herein, the Seller shall sell and the Purchaser shall purchase
the
Sale Shares free from all charges, liens, equities and claims and encumbrances
whatsoever together with all rights attaching thereto.
3
| 3. |
CONSIDERATION
AND REPAYMENT OF LOAN
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3.01
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The
aggregate consideration for the Seller selling the Sale Shares to
the
Purchaser shall be the Consideration, payable in the manner stipulated
in
Clause 4.03(i).
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3.02
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Subject
to the full performance by the Seller of its obligations in Clause
4.02,
the Purchaser agrees to procure the Repayment of Loan subject to
a maximum
of US$2,500,000 and payable in manner stipulated in Clause 4.03(ii).
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4. COMPLETION
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4.01
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Completion
shall take place on or before 25th August 2006 at Xxxx 0000/0000,
Xxxxxx
Xxxxxxxx, Xxxx South 12th Road, High-Tech Industrial Park, Nanshan
District, Shenzhen, PRC or such other place as the parties shall
agree.
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4.02
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At
Completion, the Seller shall deliver to the
Purchaser:
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(i)
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duly
executed instruments of transfer in favour of the Purchaser in respect
of
the Sale Shares;
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(ii)
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the
share certificates for the Sale Shares or evidence of title of the
Sale
Shares satisfactory to the Purchaser;
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(iii)
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all
the statutory and other books of the Company in the possession of
the
Seller (including common seal and company chops (if any));
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(iv)
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all
books and accounts and other records, including without limitation,
the
cheque books and bank records of the Company in the possession of
the
Seller;
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(v)
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the
original written shareholders resolution attached hereto as Exhibit
B
signed by a duly authorized officer of the Seller and dated as of
the date
of Completion;
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(vi)
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the
original written board resolutions attached hereto as Exhibit C signed
by
Hope Ni and Xxxx
Xxxxxxx
as
directors of the Company and the Subsidiary and dated as of the date
of
Completion;
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(vii)
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the
original duly executed counterpart of the Termination Agreement signed
by
a duly authorized officer of the Seller, the Company and the Subsidiary
and dated as of the date of Completion;
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| (viii) |
the
original duly executed letter of release attached hereto as Exhibit
E
signed by a duly authorized officer of the Seller and dated as of
the date
of Completion, in respect of the Repayment of Loan;
and
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(ix)
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the
original resignation letter of Hope Ni and Xxxx
Xxxxxxx
as
directors of the Company and the Subsidiary, each in the form attached
hereto as Exhibit F, duly signed by each of them and dated as at
the date
of Completion.
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4.03
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At
Completion, the Purchaser shall deliver to the Seller
:
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(i)
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a
banker's draft for US$1,250,000 in respect of the Consideration,
such
draft to be payable to the Seller. The delivery of such banker's
draft as
aforesaid shall constitute a complete discharge to the Purchaser
in
respect of the Consideration to be provided by it under this Agreement;
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4
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(ii)
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a
banker's draft for US$2,500,000 in respect of the Repayment of Loan,
such
draft to be payable to the Seller. The delivery of such banker's
draft as
aforesaid shall constitute a complete discharge to the Purchaser
in
respect of the Repayment of Loan to be made by the Purchaser under
this
Agreement; and
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(iii)
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the
original duly executed counterpart of the Termination Agreement signed
by
Chen, Lin, Xxx, Xxxx and Pioneer and dated as of the date of Completion.
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| 5. |
REPRESENTATIONS
AND WARRANTIES
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5.01
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The
Seller hereby represents, warrants and undertakes to the Purchaser
that,
as at the date hereof and as at
Completion:
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(a)
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the
Sale Shares represent the entire issued share capital of the Company
and
the Seller is the beneficial and legal owner of the Sale Shares free
and
clear of any lien, charge or encumbrance whatsoever;
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(b)
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the
Shareholders Agreement is the only agreement between the Seller and
the
Company in respect of purchasing Company shares ;
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(c)
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there
are no outstanding options, warrants, rights (including conversion
or
pre-emptive rights) or agreements for the Sale Shares and/or the
subscription or acquisition from the Company or the Subsidiary of
any
shares or other rights in respect of its respective share capital;
and
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(d)
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US$2,500,000
represents the total indebtedness (whether principal, interest or
otherwise) owed by the Company and any and all of its subsidiaries
to the
Seller.
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5.02
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The
Seller undertakes that no act or omission shall occur before Completion
which would constitute a material breach of any of the warranties
if they
were given at Completion or which would make any of the warranties
materially inaccurate or misleading if they were so
given.
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| 6. |
FURTHER
AGREEMENT
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6.01
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Each
party shall do or procure to be done all such further acts and things,
and
execute or procure the execution of all such other documents, as
the other
parties may from time to time reasonably require, whether on or after
completion of the transactions contemplated herein, for the purpose
of
giving to the other parties the full benefit of all of the provisions
of
this Agreement.
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6.02
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The
Purchaser agrees to assume all the assets and liabilities of the
Company
and the Subsidiary. The Purchaser further agrees to waive the right
to xxx
the Seller related to any claims or potential claims arising from
the
Company and /or from the Subsidiary except for claims directly arising
from Section 5.01. The Purchaser further agrees to indemnify the
Seller
from any liabilities or potential liabilities related to the Company
or
the Subsidiary except for claims directly arising from Section 5.01.
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| 7. |
GENERAL
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| 7.01 |
The
provisions of this Agreement shall remain in full force and effect
notwithstanding Completion.
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5
| 7.02 |
Each
of the parties hereto shall pay its own legal costs and charges and
all
other fees, costs, charges and expenses connected with the negotiation,
preparation and implementation of this
Agreement.
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| 7.03 |
Any
notice required to be given under this Agreement shall be deemed
duly
served if left at or sent by registered post to, to the parties hereto
at
the address first mentioned above or such other address as shall
have been
notified in writing by or on behalf of such party to the other. Any
such
notice shall be deemed to be served at the time when the same if
left at
the address of the party to be served or if served by post on the
second
day (not being a Sunday or public holiday) next following the day
of
posting.
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| 7.04 |
This
Agreement represents the entire agreement between the parties and
supersedes any and all previous agreements in relation to the subject
matter hereof.
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| 7.05 |
No
variation, or waiver of any right in relation to, this Agreement
shall be
effective unless or made confirmed in writing and signed by each
party.
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| 7.06 |
The
provisions of this Agreement are severable and if any provision is
held to
be invalid, illegal or unenforceable by any court of competent
jurisdiction then such invalidity, illegality or unenforceability
shall
not affect the remaining provisions of this
Agreement.
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| 7.07 |
| 7.08 |
This
Agreement is binding on and shall ensure for the benefit of each
party’s
successors and assigns but no right or obligation hereunder shall
be
capable of assignment or transfer by any party without the written
consent
of the other.
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Execution
appears of following page.
6
IN
WITNESS WHEREOF this
Agreement has been executed on the day and year first above
written.
The
Seller
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SIGNED
by
for
and on behalf of COMTECH
GROUP
in
the presence of :
______________________________
Signature
of Witness
______________________________
Name
of Witness (Printed)
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)
)
)
)
)
)
)
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)
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/s/
Xxxxxxx Xxxx
By
executing this Agreement the signatory warrants
that
it is duly authorised to execute this Agreement
on
behalf of Comtech Group
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The
Purchaser
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SIGNED
by
for
and on behalf of
UNITED
INFORMATION
TECHNOLOGY CO., LTD.
(a
company incorporated in the Cayman Islands)
in
the presence of :
/s/
Xxx Xxx Ming
Signature
of Witness
Xxx
Xxx Ming
Name
of Witness (Printed)
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)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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/s/
Xxxxxxx Xxxx
By
executing this Agreement the signatory warrants
that
it is duly authorised to execute this Agreement
on
behalf of United Information
Technology Co., Ltd.
(a
company incorporated in the Cayman
Islands)
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7
The
Company
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SIGNED
by
for
and on behalf of
UNITED
INFORMATION
TECHNOLOGY CO., LTD.
(a
company incorporated in the British Virgin Islands)
in
the presence of :
/s/
Xxx Xxx Ming
Signature
of Witness
Xxx
Xxx Ming
Name
of Witness (Printed)
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)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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/s/
Xxxxxxx Xxxx
By
executing this Agreement the signatory warrants
that
it is duly authorised to execute this Agreement
on
behalf of United Information
Technology Co., Ltd.
(a
company incorporated in the British Virgin
Islands)
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The
Subsidiary
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SIGNED
by
for
and on behalf of
[___________]
in
the presence of :
/s/
Xxx Xxx Ming
Signature
of Witness
Xxx
Xxx Ming
Name
of Witness (Printed)
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)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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/s/
Xxxxxxx Xxxx
By
executing this Agreement the signatory warrants
that
it is duly authorised to execute this Agreement
on
behalf of
[
]
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SIGNED
by
XXXX
Xxx (榸凯)
in
the presence of :
/s/
Xxx Xxx Ming
Signature
of Witness
Xxx
Xxx Ming
Name
of Witness (Printed)
|
)
)
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/s/
Xxxx Xxx
XXXX
Xxx (榸凯)
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8
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SIGNED
by
XXX
Xxxx Li ( )
in
the presence of :
______________________________
Signature
of Witness
______________________________
Name
of Witness (Printed)
|
)
)
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/s/
Xxx Xxxx Xx
XXX
Xxxx Xx ( )
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SIGNED
by
XXX
Xxx Ming ( )
in
the presence of :
______________________________
Signature
of Witness
______________________________
Name
of Witness (Printed)
|
)
)
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/s/
Xxx Xxx Xxxx
XXX
Xxx Xxxx ( )
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SIGNED
by
XXXX,
Xxxxxxx ( )
in
the presence of :
______________________________
Signature
of Witness
______________________________
Name
of Witness (Printed)
|
)
)
|
/s/
Xxxxxxx Xxxx
XXXX,
Xxxxxxx ( )
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9
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SIGNED
by
for
and on behalf of
Pioneer
System Investment Limited
in
the presence of :
/s/
Xxx Xxx Ming
Signature
of Witness
Xxx
Xxx Ming
Name
of Witness (Printed)
|
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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/s/
Xxxxxxx Xxxx
By
executing this Agreement the signatory warrants
that
it is duly authorised to execute this Agreement
on
behalf of
Pioneer System Investment Limited
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10
