Exhibit 10.74
DATED THIS 15th DAY OF MARCH 2001
THE SEVERAL PERSONS WHOSE NAMES
ARE SET OUT IN COLUMN 1 OF THE FIRST SCHEDULE
AND
MYWEB TECHNOLOGIES LTD
=========================================
SALE AND PURCHASE AGREEMENT
(For Shares)
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XXXXX XXX & BOK
ADVOCATES & SOLICITORS
20TH FLOOR, ARAB-MALAYSIAN BUILDING
00 XXXXX XXXX XXXXXX
00000 XXXXX XXXXXX
TABLE OF CONTENTS
HEADING PAGE
PARTIES 1
ARTICLE I RECITALS
Section 1.01 The Company 1
Section 1.02 Agreement to sell and purchase 1
Section 1.03 The Exercise 1
Section 1.04 Approval from LFX 2
ARTICLE II DEFINITIONS
Section 2.01 Definitions 2
ARTICLE III SALE AND PURCHASE OF THE SHARES
Section 3.01 Agreement to sell and to purchase 4
Section 3.02 Consideration 4
Section 3.03 Consideration Shares 4
ARTICLE V CONDITIONAL AGREEMENT
Section 4.01 Conditions Precedent 4
Section 4.02 Application for approvals 5
Section 4.03 Notification 5
Section 4.04 The Option Period 5
Section 4.05 Appeals 5
Section 4.06 The Cut-Off Date 6
ARTICLE V COMPLETION
Section 5.01 Completion of sale and purchase 6
Section 5.02 Vendors holding as trustees 7
Section 5.03 Concurrent actions to be taken by Vendors 7
(i)
ARTICLE VI VENDORS' UNDERTAKINGS PENDING COMPLETION
Section 6.01 Vendors' Undertakings 7
ARTICLE VII WARRANTIES AND UNDERTAKINGS
Section 7.01 Vendors' warranties and undertakings 9
Section 7.02 Warranties and Undertakings on completion 10
Section 7.03 Purchaser's warranties and undertakings 10
Section 7.04 Warranties etc., to continue after completion 11
Section 7.05 Right of parties to rescind Agreement 11
Section 7.06 Rescission will not affect right to damages 11
ARTICLE VIII INDEMNITIES BY THE VENDORS
Section 8.01 Vendors' Indemnities 12
Section 8.02 Indemnity regarding tax 12
ARTICLE IX MISCELLANEOUS
Section 9.01 Specific Performance 12
Section 9.02 Successors Bound 12
Section 9.03 Governing Law 12
Section 9.04 Severability 13
Section 9.05 No Assignment 13
Section 9.06 Notice 13
Section 9.07 Time 13
Section 9.08 Further deeds and acts 13
Section 9.09 Costs and expenses 13
Section 9.10 Schedules 13
Section 9.11 Variation of terms by mutual Agreement 14
Section 9.12 Confidentiality 14
Section 9.13 Joint and Several 14
FIRST SCHEDULE The Vendors 15
SECOND SCHEDULE Vendors' Warranties and Undertakings 16
THIRD SCHEDULE Consideration Shares 26
EXECUTION PAGE 27
APPENDIX 1 Audited Accounts as at 30th September 2000
(ii)
AN AGREEMENT made the15th day of March 2001 Between:
1. THE SEVERAL PERSONS whose names are set out in Column 1 of the First
Schedule (the "VENDORS") of the one part; And
2. MYWEB TECHNOLOGIES LTD, a company incorporated under the laws of the
British Virgin Islands and having its registered office at Jipfa
Building, P.O. Box 181, Road Town, Tortola, British Virgin Islands (the
"PURCHASER") of the other part.
ARTICLE I
Recitals
Section 1.01 The Company
MyWeb E-Commerce Sdn. Bhd. (Company No. 476442-P) (the "COMPANY") is a company
with limited liability incorporated under the Companies Act, 1965 on the 30th
day of January 1999 with an authorised capital of Ringgit Malaysia Five Hundred
Thousand (RM500,000) divided into 500,000 ordinary shares of RM1.00 each, of
which 350,000 have been issued and are fully paid up or credited as paid up, all
of which (the "SHARES") are beneficially owned by the Vendors in the amounts and
proportions set out against their respective names in Columns 2 and 3 of the
First Schedule hereto.
Section 1.02 Agreement to sell and purchase
Subject to the terms and conditions hereinafter contained, the Vendors have
agreed to sell and the Purchaser has agreed to purchase all of the Shares on and
subject to the terms and conditions and on the basis of the representations,
warranties, undertakings and agreements hereinafter mentioned.
Section 1.03 The Exercise
This sale and purchase is part of a larger corporate exercise (the "EXERCISE")
pursuant to which it is proposed that:-
(i) the sale and purchase of the Shares upon the terms hereof will be
completed;
(ii) the legal and beneficial owners of all the shares in UNIOFFICE
SDN. BHD. (Company No. 491165-A) will sell all their shares in the
said company (the "UNIOFFICE SHARES") to the Purchaser;
(iii) the legal and beneficial owner of all the shares in MyWeb Access Sdn
Bhd (Company No. 533653-U) (the "MWA SHARES") will sell all its shares
to the Purchaser; and
(iv) the shares of the Purchaser will be listed on the Labuan International
Financial Exchange.
Section 1.04 Approval in Principle from LFX
By a letter dated the 21st day of February 2001 the Labuan International
Financial Exchange ("LFX") has approved in principle the proposed listing and
quotation of all the Purchaser's shares on the LFX.
NOW THIS AGREEMENT WITNESSETH as follows:-
ARTICLE II
Definitions
Section 2.01 Definitions
In this Agreement and the Schedules hereto unless there be something in the
subject or context inconsistent therewith:-
(i) the following expressions bear the following meanings namely:-
"Accounts Date" means the 30th day of September 2000;
"the Audited Accounts" means the Report and Audited Accounts of the
Company for the period ended 30th day of September 2000 attached hereto
as Appendix 1;
"Auditors" means the auditors for the time being of the Company;
"the Balance Sheet Date" means 30th day of September 2000;
"Business Day" means a day other than a Saturday, Sunday or a public
holiday on which banks are open for business in Kuala Lumpur and
Sarawak.
"Net Assets" means the issued share capital of the Company plus or
minus the amount standing to the credit of or debited to reserves
(including profit and loss account);
"Taxation" means all forms of taxation whether of Malaysia or elsewhere
in the world wherever imposed (including without limitation,
corporation tax, profits tax, capital gains tax, income tax,
development land tax, estate duty, capital transfer tax, national
insurance, stamp duty, capital duty, value added tax, customs and other
import or export duties) and
-2-
all statutory, governmental, state, provincial, local governmental or
municipal impositions, duties and levies and all penalties, charges,
costs and interest relating thereto;
(ii) any reference to a statutory provision shall include such provision and
any regulations made in pursuance thereof as from time to time modified
or re-enacted whether before or after the date of this Agreement so far
as such modification or re-enactment applies or is capable of applying
to any transactions entered into prior to completion and (so far as
liability thereunder may exist or can arise) shall include also any
past statutory provisions or regulations (as from time to time modified
or re-enacted) which such provisions or regulations have directly or
indirectly replaced;
(iii) any reference to "Accounts" shall include the relevant balance sheets
and profit and loss accounts together with all documents which are or
would be required by the relevant law to be annexed to the Accounts of
the Company concerned to be laid before the Company in general meeting
for the accounting period in question;
(iv) references to Recitals, Clauses, Annexures and Schedules are to
Recitals, Clauses, Annexures and Schedules of this Agreement;
(v) the headings are for convenience only and shall not affect the
interpretation hereof;
(vi) words denoting the singular number only shall include the plural number
and vice versa;
(vii) words denoting the neuter or masculine gender only shall include the
feminine gender and the masculine or neuter gender, as the case may be;
(viii) "Ringgit Malaysia" and "RM" shall be construed as references to the
lawful currency for the time being of Malaysia;
(ix) "US Dollars" and "US$" shall be construed as references to the lawful
currency for the time being of the United States of America; and
(x) references to any agreement or document herein shall be a reference to
the same as from time to time varied in any manner whatsoever and any
other agreements or documents from time to time executed supplemental
or in addition thereto or in substitution therefor, unless the context
otherwise requires.
ARTICLE III
Sale and Purchase of the Shares
Section 3.01 Agreement to sell and to purchase
Subject to Section 4.01 hereof, the Vendors hereby agree to sell to the
Purchaser and the Purchaser hereby agrees to purchase from the Vendors the
Shares free from all claims, charges, liens, encumbrances and equities together
with all rights attached thereto and all dividends and distributions declared
paid or made in respect thereof by reference to a record date which is after the
date hereof for the consideration stated in Section 3.02 hereof.
Section 3.02 Consideration
The total consideration to be paid by the Purchaser to the Vendors for the
Shares is the sum of Ringgit Malaysia Four Hundred and Twelve Thousand Two
Hundred and Seventy Seven (RM412,277.00) (the "PURCHASE PRICE") which shall be
satisfied by the issue by the Purchaser to the Vendors at the issue price per
share set out against the name of each of the Vendors in the Third Schedule
hereof of an aggregate of Six Million Three Hundred and Thirty Thousand Six
Hundred and Fifty One (6,330,651) new ordinary shares of US$0.01 each in the
capital of the Purchaser credited as fully paid up (the "CONSIDERATION SHARES")
such shares to be issued to each of the Vendors in the amount and proportion set
out against his name in the Third Schedule hereto.
Section 3.03 Consideration Shares
The Consideration Shares shall be issued on terms that they will rank pari passu
in all respects with the ordinary shares of the Purchaser in issue at the date
of allotment save as regards any dividend or distribution declared, paid or made
by reference to a record date which is prior to Completion.
ARTICLE IV
Conditional Agreement
Section 4.01 Conditions Precedent
(1) This sale and purchase of the Shares is conditional upon:-
(i) the approvals of all relevant authorities necessary for the
Exercise being obtained;
(ii) there having been no material adverse change in the
financial business or trading
position of the Company prior to the Completion Date.
(2) The Purchaser may in its sole and absolute discretion waive any of the
Conditions Precedent that are capable of being waived, by notice in
writing to the Vendors prior to the Cut-Off Date (as hereinafter
defined).
Section 4.02 Application for approvals
Immediately upon the execution of this Agreement, each of the parties hereto
shall take the necessary steps to apply for the approvals and or procure the
fulfilment of the conditions referred to in Section 4.01 hereof and to do all
things necessary to obtain and or procure the same and the Purchaser and the
Vendors shall exercise respectively their best endeavours to assist each other
in their applications and or efforts as aforesaid.
Section 4.03 Notification
Upon any of the consents or approvals referred to in Section 4.01 hereof being
given or obtained, or upon the fulfilment of any of the conditions therein
referred to, the party obtaining the consents and approvals or fulfilling such
condition shall immediately notify the other party in writing and (where
relevant) shall forward to the other party a copy thereof.
Section 4.04 The Option Period
In the event that a condition is imposed by any of the relevant authorities in
respect of any of the approvals and consents referred to in this Article IV
which affects any of the parties hereto, that party shall have the option to be
exercised within fourteen (14) days from the date on which the condition is made
known to the party affected (the "OPTION PERIOD") by written notice to the other
party, not to accept such condition, whereupon the approval or consent in
respect of which the said condition is imposed shall be deemed not to have been
obtained for the purpose hereof. If such option is not exercised within the
Option Period such approval or consent in respect of which the said condition is
imposed shall be deemed to have been obtained for the purpose hereof.
Section 4.05 Appeals
Notwithstanding any other provisions in this Agreement to the contrary but
subject always to Section 4.06 hereof, the affected party may, within the Option
Period, appeal or require the party who made the application for the approval to
appeal to the relevant authorities to modify and/or withdraw any of such terms
and conditions attached to its approval.
(i) In the event of the relevant authorities agreeing before the Cut-Off
Date, to modify and/or withdraw such terms and conditions requested for
by the affected party the approval in respect of which the said
condition is imposed shall be deemed to have been obtained for the
purpose hereof.
(ii) In the event of the relevant authorities refusing or failing to modify
and/or withdraw any of such terms and conditions requested for by the
affected party and or failing to revert on the appeal by the Cut-Off
Date, the affected party shall have the option to be exercised within
fourteen (14) days (hereinafter referred to as the "SECOND OPTION
PERIOD") of being notified of such refusal or failure, as the case may
be, but not later than fourteen (14) days after the Cut-Off Date,
either:-
(a) to accept such condition by written notice to the party
notified whereupon the approval in respect of which the said
condition is imposed shall be deemed to have been obtained for
the purpose hereof; or
(b) to reject such condition by written notice to the party
notified whereupon the approval in respect of which the said
condition is imposed shall be deemed not to have been obtained
for the purpose hereof.
It is hereby expressly agreed that in the event that no written notice is
received by the party notified within the Second Option Period, such approval in
respect of which the said condition is imposed shall be deemed to have been
obtained for the purpose hereof.
Section 4.06 The Cut-Off Date
In the event of the approvals and conditions mentioned in this Article IV not
being obtained, fulfilled and or waived, as the case may be, on a date that is
*six (6) months from the date of this Agreement or such other later date as may
be agreed upon in writing between the parties hereto (the "CUT-OFF DATE")
despite all reasonable efforts by the parties hereto, then, subject to Section
4.05 hereof, this Agreement shall lapse and be of no further effect and
thereafter the parties shall be released from all further obligations to each
other.
ARTICLE V
Completion
Section 5.01 Completion of sale and purchase
Completion of the sale and purchase of the Shares ("COMPLETION") shall take
place simultaneously with the completion of the sale and purchase of the
Unioffice Shares and MWA Shares to the Purchaser, not later than 5.00 p.m. on
the date falling seven (7) Business Days from the date the last outstanding
Condition Precedent was fulfilled or waived, as the case may be, or such other
date as may be agreed between the parties hereto at the office of Xxxxx Xxx &
Bok, Kuala Lumpur or such other place as may be agreed between the parties
hereto, when the following actions shall be taken by the parties hereto:-
(i) By the Vendors
(a) The Vendors shall deliver to the Purchaser:-
(aa) valid and registrable instruments of transfer duly
executed in favour of the Purchaser or its nominee or
nominees as shall be directed by the Purchaser in
respect of all of the Shares accompanied by the share
certificates thereto together with all other
documents relating thereto; and
(bb) the resolution of board of directors of the Company
approving the transfers of the Shares to and in
favour of the Purchaser or its nominee or nominees
and subject only to the same being duly stamped and
lodged for registration, passed for registration in
the register of members of the Company.
(b) The Vendors shall repay all monies then owing by them to the
Company whether due for payment or not.
(ii) By the Purchaser
Simultaneously the Purchaser shall allot and issue to and in favour of
the Vendors, the Consideration Shares.
(iii) The Purchaser may in its absolute discretion waive any requirement
contained in Section 5.01(a) and (b).
Section 5.02 Vendors holding as trustees
Insofar as the transfer or delivery or vesting of any of the Shares hereby
agreed to be sold shall not have been completed on the Completion Date, the
Vendors shall as on and from the said time and date be deemed to stand possessed
of the Shares as trustees for and on behalf of the Purchaser and the Purchaser
shall indemnify and keep the Vendors indemnified in respect thereof.
Section 5.03 Concurrent actions to be taken by Vendors
Concurrently with the completion of the sale and purchase as aforesaid, the
Vendors shall take such steps as shall lie within their power to procure the
appropriate meetings to be held by the Directors of the Company at which such
persons as shall be nominated by the Purchaser shall be appointed to the Board
of Directors of the Company.
ARTICLE VI
Vendors' Undertakings Pending Completion
Section 6.01 Vendors' Undertakings
Pending the Completion of the sale and purchase herein provided, the Vendors
shall take such steps as shall lie within their power to procure that the
Company will not, save in each case, if previously agreed to by the parties
hereto:-
(i) issue or agree to issue any shares or loan capital or agree to grant
any option over or right to acquire any share or loan capital;
(ii) create, extend, grant or issue or agree to create, extend, grant or
issue any mortgages, charges, debentures or other securities;
(iii) enter into any long term or abnormal contract or capital commitment;
(iv) declare, pay or make any dividend or other distribution or do or suffer
anything whereby its financial position shall be rendered less
favourable than as at the date hereof;
(v) pass any resolution by its members in general meeting contrary to the
intentions of this Agreement or make any alteration to the provisions
of its Memorandum or Articles of Association;
(vi) in any way depart from the ordinary course of its day to day business
either as regards the nature scope or manner of conducting the same;
(vii) grant or issue or agree to grant or issue any mortgage, charge,
debenture, pledge or other encumbrance or security or redeem or agree
to redeem any security or give or agree to give any guarantee or
indemnity except in the ordinary course of business;
(viii) permit any lien to arise on any of its assets;
(ix) pay or agree to pay to its Directors or officers or any of them any
remuneration or other emoluments or benefits whatsoever other than
those which have been disclosed and agreed to by the Purchaser;
(x) dispose of any part of its assets except in the ordinary course of
business;
(xi) apply for, incur or accept any further borrowings, loans, loan
facilities and other accommodations other than those already granted to
and utilised by the Company as at the date hereof;
(xii) knowingly permit any of its normal insurances of which it is the
insured party to lapse or do anything to make any policy of insurance
of which it is the insured party void or voidable; or
(xiii) do, procure or allow anything which may cause, constitute or result in
the breach of any of the representations and warranties hereinafter set
out.
ARTICLE VII
Warranties and Undertakings
Section 7.01 Vendors' warranties and undertakings
Each of the Vendors hereby warrants and undertakes to and with the Purchaser and
its successors in title:-
(i) in relation to the Shares and itself as follows:-
(a) that it has and will have full power and authority to enter
into and perform this Agreement which constitutes or when
executed will constitute binding obligations on it in
accordance with their respective terms;
(b) if it is a body corporate, that the Vendor is a body corporate
validly existing under the laws of its place of incorporation
as a separate legal entity and has full power and authority to
own its assets and carry on business as is now being carried
on;
(c) that the execution, delivery and performance of this Agreement
will not exceed the power granted to the Vendor or violate the
provisions of (1) any law or regulation or any order or decree
of any governmental authority, agency or court to which it is
subject or (2) its Memorandum and Articles of Association or
other constitutional documents or (3) any mortgage, contract
or other undertaking or instrument to which it is a party or
which is binding upon it or any of its assets;
(d) that all consents, licences, approvals, authorisations, orders
and exemptions of any Ministry, agency, department or
authority in Malaysia or elsewhere which are required to be
obtained by the Vendors or advisable for or in connection with
the execution, delivery, performance, legality or
enforceability of this Agreement have been obtained and are in
full force and effect;
(e) the Shares will on the Completion Date constitute the one
hundred per cent (100%) of the issued and allotted share
capital of the Company;
(f) there is not, and at the Completion Date there will be no
pledge, lien or other encumbrance on, over or affecting the
Shares and there is not, and at the Completion Date there will
be no agreement or arrangement to give or create any such
encumbrance and no claim has been or will be made by any
person to be entitled to any of the foregoing;
(g) the Shares are beneficially owned by the Vendors free from any
claims, charges, liens, encumbrances or equities; the Vendors
have and will until Completion continue to retain the
unrestricted rights to transfer the Shares on the terms of
this
Agreement without the consent of any third party and there is
not, nor will there be any option over or right to acquire any
of the Shares.
(ii) in relation to the Company in the terms set out in the Second Schedule
hereto subject only to:-
(a) any exceptions expressly provided for under the terms of this
Agreement; and
(b) any matter or thing hereafter done or omitted to be done at
the request in writing or with the approval in writing of the
Purchaser;
(iii) that the said warranties and undertakings shall be separate and
independent and save as expressly otherwise provided shall not be
limited by reference to any other paragraphs hereof or of the Second
Schedule or by anything in this Agreement and no other information
relating to either company of which the Purchaser has knowledge (actual
or constructive) shall prejudice any claim made by the Purchaser under
such warranties or undertakings or operate to reduce any amount
recoverable and the Vendors hereby agree that such warranties and
undertakings are not affected by any investigation into the affairs of
the Company made by or for the Purchaser;
(iv) in relation to any warranty which refers to the knowledge and/or
information on behalf of the Vendors that it has made full enquiry into
the subject matter of that warranty.
Section 7.02 Warranties and undertakings on completion
Each of the Vendors further warrants and undertakes to and with the Purchaser
and its successors in title that:-
(i) subject as aforesaid all warranties and undertakings on its part herein
contained will be fulfilled down to and will be true and correct at
Completion in all respects as if they had been entered into afresh at
Completion; and
(ii) if after the signing hereof and before Completion any event shall occur
which results or may result in any of the said warranties or
undertakings being unfulfilled, untrue or incorrect at Completion, it
shall immediately notify the Purchaser thereof prior to Completion.
Section 7.03 Purchaser's warranties and undertakings
The Purchaser hereby warrants and undertakes to and with the Vendors and their
successors in title as follows:-
(i) that it has and will have full power and authority to enter into and
perform this Agreement which constitutes or when executed will
constitute binding obligations on it in accordance with their
respective terms;
(ii) that the Purchaser is a body corporate validly existing under the laws
of its place of incorporation as a separate legal entity and has full
power and authority to own its assets and carry on business as is now
being carried on;
(iii) that the execution, delivery and performance of this Agreement will not
exceed the power granted to the Purchaser or violate the provisions of
(1) any law or regulation or any order or decree of any governmental
authority, agency or court to which it is subject or (2) its Memorandum
and Articles of Association or other constitutional documents or (3)
any mortgage, contract or other undertaking or instrument to which it
is a party or which is binding upon it or any of its assets;
(iv) that all consents, licences, approvals, authorisations, orders and
exemptions of any Ministry, agency, department or authority in Malaysia
or elsewhere which are required to be obtained by the Purchaser or
advisable for or in connection with the execution, delivery,
performance, legality or enforceability of this Agreement have been
obtained and are in full force and effect; and
(v) that the Consideration Shares, will be free from any claims, charges,
liens, encumbrances or equities and will rank pari passu in all
respects with the ordinary shares of the Purchaser in issue at the date
of allotment save as regards any dividend declared or paid by reference
to a record date which is prior to Completion.
Section 7.04 Warranties etc., to continue after completion
Notwithstanding the Completion of the sale and purchase hereunder, all
warranties, undertakings and obligations given hereunder or undertaken herein
shall continue hereafter to subsist for so long as may be necessary to give
effect to each and every one of them in accordance with the terms hereof but
subject always to a maximum period of two (2) years from the Completion Date.
Section 7.05 Right of parties to rescind Agreement
If prior to Completion it shall be found that any of the warranties or
undertakings on the part of the Vendors or the Purchaser have not in all
material respects been carried out or complied with or are otherwise untrue or
incorrect in any material respect, the Purchaser or the Vendors, as the case may
be, shall be entitled by notice in writing to the Vendors or the Purchaser, as
the case may be, to rescind this Agreement, but failure to exercise this right
shall not constitute a waiver of any other rights of the Purchaser or the
Vendors, as the case may be or their respective successors in title arising out
of any breach of warranty or undertaking.
Section 7.06 Rescission will not affect right to damages
Rescission of this Agreement under Section 7.05 hereof shall not extinguish any
right to damages to which the Purchaser or Vendors, as the case may be, or their
respective successors in title may be entitled in respect of the breach of this
Agreement.
ARTICLE VIII
Indemnities by the Vendors
Section 8.01 Vendors' Indemnities
Notwithstanding any investigation of the business and assets of the Company made
by or on behalf of the Purchaser, the Vendors will indemnify the Purchaser and
hold the Purchaser harmless from and against any damages, deficiencies, losses,
costs, liabilities and expenses (including legal fees and disbursements) and in
particular, but without prejudice to the generality of the foregoing, from and
against any depletion or diminution of the assets, resulting directly or
indirectly from or arising out any breach of any of the representations,
warranties, covenants and agreements made by the Vendors herein.
Section 8.02 Indemnity regarding tax
The Vendors covenant with the Purchaser who is contracting for this purpose on
behalf of itself and as trustee for the Company that they will indemnify and at
all times keep the Purchaser and the Company indemnified against any diminution
of the net assets of the Company which results from the Company being called
upon to pay any tax or duty other than as specifically provided for in the
Audited Accounts and other than income tax on normal trading income arising from
transactions entered into the ordinary course of business after the Balance
Sheet Date.
ARTICLE IX
Miscellaneous
Section 9.01 Specific Performance
In the event that any of the parties hereto shall make default in the
performance of its obligations and covenants herein, the other parties shall be
entitled to the remedy of specific performance against the defaulting party and
it is hereby expressly agreed that an alternative remedy of monetary
compensation shall not be regarded as compensation or sufficient compensation
for any party's default in the performance of the terms and conditions herein.
Section 9.02 Successors Bound
This Agreement shall be binding on each party's respective personal
representatives, executors, successors and permitted assigns.
Section 9.03 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of
the States of Malaya and the parties hereto hereby (i) irrevocably submit to the
non-exclusive jurisdictions of the Courts of the States of Malaya (ii) waive any
objection on the ground of venue or forum non conveniens or any similar grounds
and (iii) consent to service of process by mail or in any other manner permitted
by the relevant law. Section 9.04 Severability
If any of the provisions of this Agreement becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired.
Section 9.05 No Assignment
This Agreement and all rights and obligations hereunder are personal to the
parties hereto and each party hereto shall not assign or attempt to assign any
such rights or obligations to any third party without the prior written consent
of the other party hereto, save and except that the Purchaser shall be entitled
to nominate a nominee or nominees to accept the transfer of some or the whole of
the Shares as it shall deem fit.
Section 9.06 Notice
Notice required or permitted to be given hereunder shall be in writing and shall
be deemed to have been validly given to either party if delivered to or sent by
registered post to its address abovestated or its last known registered office
or place of business (if a company) or the address herein this Agreement stated
or his place of residence (if an individual) and if so given shall be deemed to
be received when delivered (if so delivered by hand) or on the third day of
despatch (if so despatched by mail).
Section 9.07 Time
Time wherever mentioned shall be of the essence of this Agreement.
Section 9.08 Further deeds and acts
All the parties hereto shall execute and do and procure all other persons or
companies, if necessary, to execute and do all such further deeds, assurances,
acts and things as may be reasonably required so that full effect may be given
to the terms and conditions of this Agreement.
Section 9.09 Costs and expenses
The costs of and incidental to this Agreement including the costs of the
applications for the necessary approvals and the stamp fees for the transfer and
registration of the Shares shall be borne and paid by the Purchaser. Each party
shall however be responsible for and bear its own solicitors' costs.
Section 9.10 Schedules
The Schedules to this Agreement and the provisions and conditions contained
therein shall form part of this Agreement and shall have the same force and
effect as if set out in the body of this Agreement.
Section 9.11 Variation of terms by mutual Agreement
It is hereby expressly agreed and declared by the parties hereto that the
provisions and terms of this Agreement may at any time and from time to time be
varied or amended by mutual consent of the parties hereto by means of a mutual
exchange of letters or such other means as the parties may agree upon from time
to time and thereupon such amendments or variations shall be deemed to become
effective and the relevant provisions of this Agreement shall be deemed to have
been amended or varied accordingly and shall be read and construed as if such
amendments or variations had been incorporated in and had formed part of this
Agreement at the time of execution hereof.
Section 9.12 Confidentiality
(1) No announcement of any kind shall be made in respect of the subject
matter of this Agreement unless specifically agreed between the parties
or an announcement is required by the relevant Stock Exchange.
(2) Subject to Section 9.12(1) hereof and except as may be required by the
appropriate regulatory authorities or by valid legal process, the
parties hereto agree not to disclose any information with respect to
the negotiations leading to the sale and purchase of the Shares or the
sale and purchase of the Shares without the consent, and, where
applicable, participation in such disclosure, of the other parties
except to the parties' professional advisors, agents or bankers on a
need-to-know basis.
(3) If this agreement ceases to have effect the Purchaser will release and
return to the Vendors and the Company all documents concerning it
provided to the Purchaser or its advisers in connection with this
agreement and will not use or make available to any other person any
information which it or its advisers have been given in respect of the
Vendors or the Company and which is not in the public domain.
Section 9.13 Joint and Several
The liabilities of the Vendors under this Agreement shall be joint and several.
THE FIRST SCHEDULE HEREINABOVE REFERRED TO
The Vendors
Proportion of
Names No. of Shares held Shares held
----- ------------------ -------------
Technochannel Technologies Sdn. Bhd. 280,000 80%
(Company Xx. 000000-X)
Xxxxx X, Xxxx X000
Phileo Damansara 1
Xx. 0, 00/00
Xxx Xxxxx Xxxxxxxxx
00000 Xxxxxxxx Jaya
Selangor
Chew Xxxx Xxxxx 35,000 10%
(NRIC No. 730621-08-5305)
00, Xxxxxxxx Xxxxxx,
Xxxxx Xxxxxx,
00000 Xxxx,
Xxxxx
Chew Boon Wee 35,000 10%
(NRIC No. 771114-08-5547)
00, Xxxxxxxxx Xxxxxx,
Xxxxx Xxxxxx,
00000 Xxxx
Xxxxx
========= ==========
Total: 350,000 100%
========= ==========
THE SECOND SCHEDULE HEREINABOVE REFERRED TO
Vendors' Warranties and Undertakings
(Section 7.01)
1 INFORMATION
The Recitals are true and all other information in writing which has been given
by any of the Directors or officials or professional advisers of the Vendors or
the Company to any of the Directors or officials or professional advisers of the
Purchaser in the course of the negotiations leading to this Agreement was, when
given, to the best of the knowledge and belief of the Vendors after making due
and careful enquiries true, complete and accurate in all material respects and
after making due and careful enquiries the Vendors are not aware of any fact or
matter not disclosed in writing to the Purchaser which renders any such
information untrue, inaccurate or misleading or the disclosure of which might
reasonably affect the willingness of the Purchaser to purchase the Shares or the
price at or terms upon which the Purchaser would be willing to purchase them.
2 COPIES OF ACCOUNTS, MEMORANDUM AND ARTICLES ETC.
The copies of the Audited Accounts and of the Memorandum and Articles of
Association of the Company delivered to the Purchaser are true copies and in the
case of the Memorandum and Articles of Association have attached thereto copies
of all such resolutions and agreements as are required by law to be delivered to
the Registrar of Companies of Malaysia for registration.
3 NET ASSETS
The Net Assets of the Company as at the Accounts Date is not less than
RM412,277.00.
4 ACCOUNTS
(a) The Audited Accounts have been prepared in accordance with the law and
on a consistent basis in accordance with accounting principles,
standards and practices generally accepted at the date thereof in
Malaysia so as to give a true and fair view of the financial position
and state of affairs of the Company at the Balance Sheet Date and of
the profits or losses for the period concerned and as at that date:-
(i) full provision for all actual liabilities;
(ii) proper provision (or notes in accordance with good accountancy
practice) for all contingent liabilities; and
(iii) provision reasonably regarded as adequate for all bad and
doubtful debts;
have been made in the Audited Accounts;
(b) full provision or reserve has been made in the Audited Accounts for all
taxation liable to be assessed on the Company or for which it is or may
become accountable in respect of:-
(i) profits, gains or income (as computed for taxation purposes)
arising or accruing or deemed to arise or deemed to arise or
accrue on or before the Balance Sheet Date;
(ii) any transactions effected or deemed to be effected on or
before the Balance Sheet Date or provided for in the Audited
Accounts; and
(iii) distributions or payments made or deemed to be made on or
before the Balance Sheet Date or provided for in the Audited
Accounts; and
(c) proper provision or reserve for deferred taxation in accordance with
accounting principles and standards generally accepted at the date
thereof has been made in the Audited Accounts;
5 CHANGES SINCE BALANCE SHEET DATE
Since the Balance Sheet Date as regards the Company:-
(a) its business has been carried on in the ordinary course and so as to
maintain the same as a going concern;
(b) it has not disposed of any assets or assumed or incurred any material
liabilities (including contingent liabilities) otherwise than in the
ordinary course of carrying on its business;
(c) its business has not been materially and adversely affected by the loss
of any important asset or customer or by any abnormal factor not
affecting similar businesses to a like extent and after making due and
careful enquiries the Vendors are not aware of any facts which are
likely to give rise to any such effects;
(d) no dividend or other distribution has been declared made or paid to its
members and all profits accrued and accruing after the Balance Sheet
Date will remain in the Company for the benefit of the Purchaser as the
new shareholder thereof;
(e) no exceptional change has been made in the basis of the emoluments or
other terms of employment of its directors or any of its employees.
6 LITIGATION ETC.
(a) Since the Balance Sheet Date no claim for damages has been made against
the Company.
(b) The Company is not at present engaged whether as plaintiff or defendant
or otherwise in any legal action, proceeding or arbitration (other than
as plaintiff in the collection of debts arising in the ordinary course
of its business) and is not being prosecuted for any criminal offence.
(c) There are no circumstances known to the Vendors after making due and
careful enquiries likely to lead to any such claim or legal action,
proceeding or arbitration (other than as aforesaid) or prosecution.
7 TAXATION
(a) There is no liability to taxation in respect of which a claim could be
made in respect of the Company (other than as specifically provided for
in the Audited Accounts and other than income tax on ordinary trading
income arising from transactions entered into in the ordinary course of
business after the Balance Sheet Date) and there are no circumstances
likely to give rise to such a liability and in particular (but without
limitation) there exist no grounds for:
(i) assessment on the Company of additional liability to tax in
respect of any transaction between or involving the Company on
the one hand and on the other hand any company deemed to be
related to the Company under Section 6 of the Companies Act,
1965 or any person in which any of the Vendors and/or any
Director of the Vendors or the Company and/or any person
connected with any of them has during the three (3) years
immediately preceding the date of the agreement been
interested;
(ii) any claim for tax against the Company under the provisions of
any taxation statutes in connection with the transfer of
assets to or for the provision of any benefit to any person or
whereby, arising from any circumstances, the Company may be
held liable for any taxation primarily chargeable against some
other person or company.
(b) The Company has not received any tax concession, relief or other
special tax treatment, whether in relation to its assets or the
business to be carried on by it or otherwise, which, if revoked or
otherwise removed, will or may give rise to any additional liability to
taxation.
(c) All documents in the possession or under the control of the Company or
the production of which the Company is entitled which are necessary to
establish the title, interest or benefit of the Company to any asset or
in any transaction and which attract stamp duty in Malaysia have been
properly stamped.
(d) No relief or exemption has been obtained from stamp duty which has
become liable for forfeiture or which has been obtained in respect of a
transaction carried out within the period in which it may become liable
to forfeiture.
(e) All taxation or other sums charged, assessed, levied or payable under
the provisions of any taxation statute for which the Company is liable
as a result of any act or omission by the Company will, if and insofar
as such taxation or other sums ought to have been paid prior to or on
completion have been paid at or before completion.
(f) The Company is not involved in any dispute with any revenue authorities
concerning any matter likely to affect in any way the liability
(whether accrued, contingent or future) of the Company to taxation or
other sums imposed, charged, levied or payable under the provisions of
any taxation statute.
8 TAX RETURNS
The Company has duly made all returns and given or delivered all notices,
accounts and information which on or before the date hereof ought to have been
made, given or delivered for the purposes of taxation and all such returns,
notices, accounts and information (and all other information supplied to the
relevant revenue or other fiscal authority concerned for any such purpose) have
to the best of the knowledge and belief of the Vendors after making due and
careful enquiries been correct and made on a proper basis and none of such
returns, notices, accounts or information is disputed in any material respect by
the fiscal authority concerned and there is no fact known to the Vendors after
making due and careful enquiries which might be the occasion of any such dispute
or of any claim for taxation in respect of any financial period down to and
including the Balance Sheet Date not provided for in the Audited Accounts.
9 EMPLOYEES
(a) There are not in existence any contracts of service with employees of
the Company, nor any consultancy agreements with the Company, which
cannot be terminated by three (3) months' notice or less without giving
rise to any claim for damages or compensation (other than a statutory
redundancy payment or statutory compensation for unfair dismissal).
(b) There is not in existence any contract of service with directors of the
Company which cannot be terminated by thirty (30) days notice or less
without giving rise to any claim for damages or compensation in excess
of RM10,000/-.
(c) Full particulars have been given in writing to the Purchaser of all
existing contracts of service with employees of the Company and of all
consultancy agreements with the Company.
(d) There are no amounts owing to any present or former Directors or to
members of the Company other than remuneration accrued due or for
reimbursement of business expenses.
(e) Save to the extent (if any) to which provision or allowance has been
made in the Audited Accounts the Company has not made or agreed to make
any payment to or provided or agreed to provide any benefit for any
present or former director or employee which is not allowable as a
deduction for the purposes of taxation.
(f) Save to the extent (if any) to which provision or allowance has been
made in the Audited Accounts:-
(i) no liability has been incurred by the Company for breach of
any contract of service or for services, or for compensation
for wrongful dismissal or unfair dismissal; and
(ii) no gratuitous payment has been made or promised by the Company
in connection with the actual or proposed termination or
suspension of employment or variation of any contract of
employment of any present or former director or employee.
(g) The Company has in relation to each its employees (and so far as
relevant to each of its former employees) complied in all material
respects with all obligations imposed on it by all statutes,
regulations and codes of conduct and practice relevant to the relations
between it and its employees and has maintained current adequate and
suitable records regarding the service of each of its employees.
(h) The Company neither has in existence nor is proposing to introduce any
share incentive scheme, share option scheme or profit sharing scheme
for all or any part of its directors or employees.
(i) All contributions due and payable by the Company to the Employees
Provident Fund or to any scheme or fund established by law contribution
to which by the Company is compulsory in respect of the employment of
its employees have been paid.
10 PENSIONS
There are not in existence nor has any proposal been announced to establish any
retirement, death or disability benefit schemes for Directors or employees nor
are there any obligations to or in respect of present or former Directors or
employees with regard to retirement, death or disability pursuant to which the
Company is or may become liable to make payments and no pension or
retirement or sickness gratuity is currently being paid or has been promised by
the Company to or in respect of any former Director or former employee.
11 NO COMMISSION OR ADDITIONAL REMUNERATION SCHEME
There is not in existence any scheme, agreement or arrangement whereby a
Director or employee of the Company is remunerated or additionally remunerated
by way of commission or additional remuneration payable based on sales or
turnover of the Company.
12 DEBTS TO, CONTRACTS WITH, ETC. CONNECTED PERSONS
(a) With the exception of the loans, debts and securities particulars of
which have been disclosed in writing to the Purchaser and or which will
have been discharged prior to Completion, there are:-
(i) no loans made by the Company to the Vendors and/or any
director of the Company and/or any person connected with any
of them or to any member of the Company;
(ii) no debts owing to the Company by the Vendors and/or any
Director of the Company and/or any such person as aforesaid or
by any member of the Company;
(iii) no debts owing by the Company other than debts which have
arisen in the ordinary course of business; and
(iv) no securities for any such loans or debts as aforesaid.
(b) There are no existing contracts or engagements to which the Company is
a party and in which any Director of the Company and/or any person
connected with any of them as mentioned in sub-paragraph (a) above are
interested.
13 CAPITAL COMMITMENTS, UNUSUAL CONTRACTS, GUARANTEES ETC.
(1) The Company:
(a) does not have any material capital commitments;
(b) is not a party to any contract entered into otherwise than in
the ordinary and usual course of business or any contract of
an onerous or long-term nature;
(c) has not delegated any powers under a power of attorney which
remains in effect;
(d) has not by reason of any default by it in any of its
obligations become bound or liable to be called upon to repay
prematurely any loan capital or borrowed moneys;
(e) is not a party to any agreement which is or may become
terminable as a result of the entry into or completion of this
Agreement; or
(f) has not entered into or is bound by any guarantee or indemnity
under which any liability or contingent liability is
outstanding.
(2) There are no subsisting guarantees given by the Company in favour of
the Vendors or any of them and after compliance with Section 6.01(i)(b)
none of the Vendors will be indebted to the Company.
14 BOOK DEBTS
(a) None of the book debts which are included in the Audited Accounts has
been released in terms that any debtor pays less than the book value of
his debt or has been written off.
(b) Further, none of the book debts which are included in the Audited
Accounts or which have subsequently arisen have been outstanding for
more than nine (9) months from their due dates for payment and all such
debts have realised or will realise in the normal course of collection
their full value as included in the Audited Accounts or in the books of
the Company after taking into account the provision for bad and
doubtful debts made in the Audited Accounts.
15 INSURANCE
All the assets of the Company which are of an insurable nature have at all
material times been and are at the date hereof insured in amounts reasonably
regarded as adequate against fire and other risks normally insured against by
companies carrying on similar businesses or owning property of a similar nature
and the Company has at all material times been and is at the date hereof
adequately covered against accident, third party and other risk normally covered
by insurance by such companies. The particulars of the insurances of the Company
which have been supplied to the Purchaser are true and correct. In respect of
all such insurances:-
(a) all premiums have been duly paid to date; and
(b) all the policies are in force and are not voidable on account of any
act, omission or non-disclosure on the part of the insured party.
16 ASSETS
(a) All assets of the Company and all debts due to it which are included in
the Audited Accounts or have otherwise been represented as being the
property of or due to the Company or at the Balance Sheet Date used or
held for the purposes of its business were at the Balance Sheet Date
the absolute property of the Company and (save for those subsequently
disposed of or realised in the ordinary course of trading) all such
assets and all assets and debts which have subsequently been acquired
or arisen are now the absolute property of the Company and none is the
subject of any assignment, option, right or pre-emption, covenant or
restriction, mortgage, charge, lien or hypothecation or other
encumbrance whatsoever (excepting only liens arising in the normal
course of trading) or the subject of any factoring arrangement,
hire-purchase, conditional sale or credit sale agreement and there are
no circumstances under which by operation of law or otherwise the
Company's title, right or interest in and to such asset may be
adversely affected in any way whatsoever.
(b) There are no outstanding notices served on the Company in respect of
any of its assets and in particular and without limitation the
Company's land is not subject to any acquisition proceedings or notice
of intended acquisition.
(c) Those of the properties which are occupied or otherwise used by the
Company in connection with its businesses are so occupied or used by
right of ownership or under lease or tenancy, and the terms of any such
lease or tenancy permit such occupation or use.
(d) All quit rent and assessment due and payable on the Company's land has
been duly paid and all conditions affecting such land whether express
or implied, have been duly complied with by the Company and the Company
has not done or suffered to be done or omitted any act, matter or thing
in or respecting its land which may render the same liable to
forfeiture or which shall contravene the provision of any legislation
now or hereafter in force affecting such land.
17 COMPLIANCE WITH LEASES AND OTHER AGREEMENTS
(a) The terms of all leases, tenancies, licences, concessions and
agreements of whatsoever nature to which the Company is a party have
been duly complied with by all the parties thereto and the Vendors are
not aware of any breaches of the terms thereof by the Company or any
other party; and
(b) no such lease, tenancy, licence, concession or agreement will become
subject to avoidance, revocation or be otherwise affected upon or in
consequence of the making or implementation of this Agreement.
18 STATUTORY, MUNICIPAL AND OTHER REQUIREMENTS, CONSENTS AND LICENCES
All statutory, municipal, regulatory and other requirements applicable to the
carrying on of the business of the Company as now carried on, and all conditions
applicable to the ownership of its assets and any licences and consents involved
in the ownership of its assets and the carrying on of such business have been
complied with and the Vendors are not aware of any breach thereof or of any
intended or contemplated refusal or revocation of any such licence or consent
and none of such licences pioneer status or consents or any term thereof upon
which it is held will or may become subject to avoidance, revocation or be
otherwise affected upon or in consequence of the making or implementation of
this Agreement.
19 BOOKS AND RECORDS
The records, statutory books and books of account of the Company are duly
entered up and maintained in accordance with all legal requirements applicable
thereto and contain true, full and accurate records of all matters required to
be dealt with therein and all such books and all records and documents
(including documents of title) which are its property are in its possession or
under its control and all accounts, documents and returns required to be
delivered or made to the Registrar of Companies Malaysia have been duly and
correctly delivered or made.
20 SHARE CAPITAL
(a) The Company has not since the Balance Sheet Date issued or agreed to
issue any shares.
(b) No unissued shares of the Company are under option or agreed
conditionally or unconditionally to be placed under option.
21 CONTINUATION OF FACILITIES
In relation to all debentures, acceptance credits, overdrafts, loans or other
financial facilities outstanding or available to the Company (referred to in
this clause as "facilities"):-
(a) there has been no contravention of or non-compliance with any
provision of any of the documents relating to the facilities;
(b) no steps for the early repayment of any indebtedness have been taken or
threatened;
(c) there have not been nor are there any circumstances known to the
Vendors whereby the continuation of any of the facilities might be
prejudiced, or which might give rise to any alteration in the terms and
conditions of any of the facilities;
(d) none of the facilities is dependent on the guarantee or indemnity of or
any security provided by a third party;
(e) no Vendors have any knowledge, information or belief that, as a result
of the acquisition of the Shares by the Purchaser or any other thing
contemplated in this Agreement, any of the facilities might be
terminated or mature prior to its stated maturity.
22 SUBSIDIARIES AND ASSOCIATED COMPANIES
The Company has no subsidiaries or associated companies.
23 INVESTIGATIONS
There are not pending or in existence, any investigations or enquiries by, or on
behalf of, any governmental or other body in respect of the affairs of the
Company.
24 DIVIDENDS
All dividends or distributions declared, made or paid by the Company have been
declared, made or paid in accordance with its Articles of Association and the
applicable provisions of the Companies Xxx 0000.
THE THIRD SCHEDULE HEREINABOVE REFERRED TO
Consideration Shares
(Section 3.02)
No. of
Consideration
Issue price per Shares to Proportion of
Names Consideration Share be issued Consideration Shares
----- ------------------- ------------- --------------------
Technochannel Technologies Sdn. Bhd. US$0.02 4,445,683 70%
(Company Xx. 000000-X)
Xxxxx X, Xxxx X000
Phileo Damansara 1
Xx. 0, 00/00
Xxx Xxxxx Xxxxxxxxx
00000 Xxxxxxxx Jaya
Selangor
Chew Xxxx Xxxxx US$0.011 942,484 15%
(NRIC No. 730621-08-5305)
00, Xxxxxxxx Xxxxxx,
Xxxxx Xxxxxx,
00000 Xxxx,
Xxxxx
Chew Boon Wee US$0.011 942,484 15%
(NRIC No. 771114-08-5547)
00, Xxxxxxxxx Xxxxxx,
Xxxxx Xxxxxx,
00000 Xxxx,
Xxxxx
============= =========
Total: 6,330,651 100%
============= =========
AS WITNESS the hands of the representatives of the Vendors and the Purchaser the
day and year first abovewritten.
Vendors
SIGNED by )
for and on behalf of TECHNOCHANNEL )
TECHNOLOGIES SDN. BHD. )
(Company No. 426318-M) )
in the presence of:- )
SIGNED by CHEW XXXX XXXXX )
in the presence of:- )
SIGNED by CHEW BOON WEE )
in the presence of:- )
Purchaser
SIGNED for and on behalf of )
MYWEB TECHNOLOGIES LTD )
by )
)
in the presence of:- )
APPENDIX 1
Audited Accounts as at 30th September 2000
