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EXHIBIT 2.2
DATED 1998
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ALBATRONICS (FAR EAST) COMPANY LIMITED (1)
NAM TAI ELECTRONICS, INC. (2)
AND
THE PERSONS WHOSE NAMES ARE LISTED IN SCHEDULE 1 (3)
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SUBSCRIPTION AGREEMENT RELATING TO SHARES OF
ALBATRONICS (FAR EAST) COMPANY LIMITED
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X X X X X X X
X X X X X X &
M A S T E R
in association with Xxxxxx Xxxx
Solicitors & Notaries
00xx Xxxxx, Xxxxxx'x Xxxxxxxx
00 Xxxxxx Xxxx
Xxxx Xxxx
(PJS-Ewin-771150/1-Nam Tai-Subscription Agt)
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CONTENTS
Clause Page
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1. Interpretation..........................................................................1
2. Conditions..............................................................................4
3. Subscription............................................................................5
4. Completion..............................................................................6
5. The Press Announcement..................................................................7
6. Warranties..............................................................................7
7. NT's Rights.............................................................................11
8. Period between Exchange and Completion..................................................11
9. Costs and Expenses......................................................................12
10. Time of the Essence.....................................................................12
11. Announcements...........................................................................12
12. Notices.................................................................................12
13. Governing Law...........................................................................14
Execution........................................................................................14
Schedule 1 - Names and Addresses of Warrantors...................................................16
Schedule 2 - Details of the Company..............................................................17
Schedule 3 - Warranties..........................................................................19
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THIS AGREEMENT is made on , 1998 BETWEEN:
(1) ALBATRONICS (FAR EAST) COMPANY LIMITED a company incorporated in Hong
Kong with limited liability and having its registered office at Xxxx
Xx.0, 0xx Xxxxx, Xxxxx X, Xx Xxxx Xxxxxx, Xx.00 Xxxx Xxxx Road, Kowloon
Bay, Hong Kong (the "Company");
(2) NAM TAI ELECTRONICS, INC. a company incorporated in the British Virgin
Islands with limited liability and having its registered office at McW.
Xxxxxx & Co., XxXxxxxx Xxxxxxxx, P.O. Box 3342, Road Town, Tortola, the
British Virgin Islands ("NT"); and
(3) The parties whose names and addresses are set out in Schedule 1 (the
"Warrantors").
WHEREAS:
(A) The Company was incorporated with limited liability under the Companies
Ordinance (Cap.32 of the laws of Hong Kong). Full details of the
Company are set out in Schedule 2.
(B) The Company has at the date of this Agreement an authorised share
capital of HK$30,000,000 divided into 300,000,000 Shares of which
200,000,000 Shares have been issued and are fully paid.
(C) All of the issued Shares are currently listed on the Stock Exchange.
(D) NT and the Company have agreed that the Company will issue and NT
(either directly or through up to two of its wholly-owned subsidiaries)
shall subscribe for the New Shares on and subject to the terms and
conditions hereinafter appearing.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.01 In this Agreement (including the Recitals hereof) unless specifically
provided otherwise or the context otherwise requires:
(a) the following expressions shall have the following meanings:
"Accounts" means the audited consolidated balance sheet of the
Company as at 31st March 1998, the audited consolidated profit
and loss account of the Company for the year ended 31st March
1998 and the consolidated cash flow statement of the Company
for the year ended 31st March 1998;
"business day" means a day, excluding a Saturday, when
commercial banks are generally open for business in Hong Kong
SAR;
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"Code" means the Code on Takeovers and Mergers;
"Conditions" means the conditions set out in Clause 2.01;
"Completion" means completion of the allotment and issue of
the New Shares in accordance with Clause 4 under this
Agreement;
"Circular" means the circular to shareholders of the Company
in relation to, inter alia, the Subscription and the Placing;
"Disclosure Letter" means the letter of even date from the
Warrantors to NT handed over by the Company to NT immediately
prior to entry into this Agreement containing disclosures
against the Warranties;
"Executive" means the Executive Director of the Corporate
Finance Division of the SFC or any delegate of the Executive
Director (in each case acting in the capacity of "Executive"
under the Code);
"Group" means the Company and its subsidiaries;
"Hong Kong SAR" means the Hong Kong Special Administrative
Region of the PRC;
"HK$" means the local currency of Hong Kong SAR;
"Listing Rules" means the Rules Governing the Listing of
Securities on the Stock Exchange;
"Management Accounts" means the unaudited management accounts
of the Group for the financial period ended 31st July, 1998
and initialled by the Company and NT for identification
purpose;
"New Shares" means the 200,002,000 new Shares to be allotted
and issued to the Subscriber(s) pursuant to the terms of this
Agreement;
"PRC" means People's Republic of China;
"Placing" means the placing of the Placing Shares by the
Company on the terms set out in the Placing Agreement;
"Placing Agreement" means the agreement of even date between,
inter alia, the Company, the Warrantors and Standard Capital
Brokerage Limited;
"Placing Shares" means the 43,306,000 Shares to be placed
pursuant to the Placing;
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"Press Announcement" means the press announcement pertaining
to the Subscription and the Placing and to be released jointly
by the Company and NT, in the agreed form;
"SFC" means the Securities and Futures Commission;
"Share(s)" means share(s) of HK$0.10 each in the capital of
the Company;
"Stock Exchange" means The Stock Exchange of Hong Kong
Limited;
"Subscriber(s)" means NT and/or such one or more wholly-owned
subsidiaries of NT as NT shall nominate to subscribe for the
New Shares by notice in writing given to the Company at least
3 business days prior to the date of Completion (if more than
one such wholly-owned subsidiary shall be nominated, each such
subsidiary shall be a "Subscriber" and all such subsidiaries
(together with NT, if relevant) shall together be the
"Subscribers");
"Subscription" means the subscription of the New Shares by the
Subscriber(s) under this Agreement;
"Taxation" means all forms of tax, duty, rate, levy or other
imposition whenever and by whatever authority imposed and
whether of the PRC (including Hong Kong SAR), Japan or
elsewhere, including (without limitation) profits and income
tax (whether required to be deducted or withheld from or
accounted for in respect of any payment) salaries tax,
property tax, estate duty, capital gains tax including PRC
Capital Gains Tax), capital transfer tax, development land
tax, value added tax, customs duties, excise duties, rates,
stamp duty, capital duty and any other taxes, levies, duties,
charges, imposts or withholdings corresponding to, similar to,
replaced by or replacing any of them together with any
interest, penalty or fine in connection with any such taxation
and regardless of whether any such taxes, levies, duties,
imposts, charges, withholdings, penalties or interest are
chargeable directly or primarily against or attributable
directly or primarily to the company concerned or any other
person and of whether any amount in respect of any of them is
recoverable from any other person (and including any liability
in relation to failure to meet any withholding tax obligation
for any third party's PRC Capital Gains Tax liability); and
3. "Warranties" means the representations and warranties contained in
Schedule 3.
1.02 References to clauses and schedules are to the clauses of and schedules
to this Agreement.
1.03 In this Agreement, unless the context requires otherwise:-
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(a) the index and clause and schedule headings are inserted for
convenience only and do not affect its interpretation;
(b) the schedules form part of this Agreement and have the same
force and effect as if expressly set out in the body of this
Agreement and any reference to this Agreement shall include
the schedules;
(c) words in the singular include the plural, and vice versa;
(d) a reference to a person includes a reference to a firm, a body
corporate, an unincorporated association or authority;
(e) a reference to a person includes a reference to his executors,
administrators, successors (including, but not limited to,
persons taking by novation) and assigns;
(f) a reference to a document in an agreed form means a form
initialled by or on behalf of the parties simultaneously with
the execution of this Agreement; and
(g) a reference to a balance sheet or profit and loss account or
cash flow statement includes a reference to any note forming
part of or attached to it.
1.04 Where any of the Warranties is qualified by the expression "to the best
of the knowledge, information and belief of the Warrantors" or any
similar expression, that Warranty is deemed to include an additional
representation that it has been made after due, diligent and careful
inquiry and that each of the Warrantors has used all his reasonable
endeavours to ensure that all information given in the Warranty is
true, complete and accurate in all material respects.
2. CONDITIONS
2.01 Completion of this Agreement is conditional upon on or before 30th
November 1998 (or such later date as may be agreed in writing between
the parties):
(a) the Listing Committee of the Stock Exchange granting listing
of and permission to deal in the New Shares (subject only to
issue);
(b) the authorised share capital of the Company being increased
from HK$30,000,000 to HK$100,000,000 by the addition of
700,000,000 new Shares;
(c) the passing of an ordinary resolution (on a poll) by an
independent vote (as defined in Note 1 of Notes on
dispensation from Rule 26 of the Code) of the shareholders at
an extraordinary general meeting of the Company, authorising
the allotment and issue of the New Shares and approving the
"white-wash waiver" referred to in Clause 2.01(d) below;
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(d) following a vote of the independent shareholders at an
extraordinary general meeting of the Company referred to in
Clause 2.01(c) above, the Executive granting a "white-wash
waiver" waiving any obligation on the part of NT and parties
acting in concert with it to make a general offer under Rule
26 of the Code as a result of the Subscription;
(e) the Placing Agreement becoming unconditional save in relation
to any matter which is conditional or contingent upon
Completion;
(f) the Shares remaining listed and traded on the Stock Exchange
on the day immediately before the date of Completion;
(g) no notification being received by the Company prior to the
date of Completion from the Stock Exchange or the SFC to the
effect that the listing of the Shares on the Stock Exchange
will or is likely to be withdrawn as a result of completion of
the Subscription and/or of the Placing Agreement and NT being
reasonably satisfied on the date immediately prior to the date
of Completion that such listing will not be withdrawn for any
reason including (without limiting the generality of the
foregoing) by reason of an inadequate percentage of the
Company's issued share capital being in public hands as a
result of completion of the Subscription and/or of the Placing
Agreement;
(h) confirmation in terms reasonably satisfactory to NT being
obtained from the banking and financial institutions to whom
more than 50% of the Group's indebtedness outstanding as at
the date of this Agreement that they will continue after
Completion to extend banking facilities to the Group and will
not seek to terminate such facilities or demand immediate
repayment of any such facilities before or immediately after
Completion;
(i) confirmation in terms reasonably satisfactory to NT being
obtained from Sony Electronics Device Hong Kong Company
Limited that Completion will not materially adversely affect
its continuing business relationship with the Group
and if such conditions have not been fulfilled or in the case of
conditions (d), (f), (g), (h) and (i) waived by NT then this Agreement
and all rights and obligations hereunder will cease and terminate and
no party shall have any liability under them (without prejudice to the
rights of any such parties in respect of any antecedent breaches).
2.02 The Company and NT shall use their respective reasonable endeavours to
procure that the Conditions are satisfied not later than the date
specified in sub-clause 2.01 and no party is entitled to withdraw from
this Agreement before the date unless the Conditions have become
incapable of fulfillment.
3. SUBSCRIPTION
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3.01 NT shall subscribe (or procure up to 2 of its wholly-owned subsidiaries
which have been duly nominated to be the Subscriber(s) by notice in
writing given to the Company at least 3 business days prior to the date
of Completion) and the Company shall allot and issue such New Shares
fully paid and free from all liens, charges, security interests,
encumbrances and adverse claims and the New Shares shall rank pari
passu in all respects with the Shares in issue at the date hereof
including ranking for payment of any dividend declared after the date
hereof.
3.02 The subscription price of each of the New Shares shall be HK$0.35 per
Share aggregating HK$70,000,700.
4. COMPLETION
4.01 Completion shall take place at 10/F., Xxxxxxxxx Xxxxx, 00 Xxxxxxxx
Xxxx, Xxxxxxx, Xxxx Xxxx at 12:00 noon on the second Business Day after
the Conditions shall have become fulfilled (save as regards fulfillment
or waiver of conditions (f) and (g) and provided all the other
Conditions have been fulfilled or waived by then) and is subject to
completion of the Placing taking place simultaneously with Completion.
4.02 At Completion, in addition to the events set out in Clause 4.03 below,
the Company shall procure that a board meeting of the Company shall be
held at which such number of persons nominated by NT by notice in
writing given to the Company at least 2 business days prior to the date
of Completion as will comprise a majority on the board of the Company
shall be appointed as directors of the Company with effect from
Completion.
4.03 At Completion:-
(a) NT will pay to the Company, or procure the payment to the
Company of the sum of HK$70,000,700 such payment to be made by
banker's cashier order or by RTGS (real time gross settlement)
or via CHATS (Clearing House Automated Transfer System
operated for the time being by Hong Kong Interbank Clearing
Limited) (or in such form as may be agreed between the
parties);
(b) NT will deliver to the Company a duly executed written
application by the Subscriber(s) to subscribe for the New
Shares in a form reasonably satisfactory to the Company;
(c) NT will deliver to the Company a certified copy of resolutions
of the board of directors of NT (in a form reasonably
satisfactory to the Company) of its authority for the
execution and performance of this Agreement; and
(d) the Company will deliver to NT :-
(i) a certified copy of resolutions of the board of
directors of the Company (or a duly authorised
committee thereof) duly approving the allotment
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and issue of the New Shares (subject to payment of
the subscription moneys in accordance with Clause
4.03 (a)) and appointing as directors of the Company
the persons nominated by NT as referred to in Clause
4.02;
(ii) evidence reasonably satisfactory to NT that
conditions set out in sub-clause 2.01(a), (b), (c),
(d), (e) , (h) and (i) have been fulfilled (unless if
relevant waived by NT); and
(iii) a share certificate or certificates for the New
Shares in the name(s) of the Subscriber(s).
5. THE PRESS ANNOUNCEMENT
The parties hereby authorise the release for publication of the Press
Announcement subject to Clause 11 and each of the Stock Exchange and
the SFC confirming that it has no further comments thereon, immediately
following signing by all the parties this Agreement.
6. WARRANTIES
6.01 The Warrantors jointly and severally represent and warrant to NT in the
terms set out in Schedule 3 and accept that NT is entering into this
Agreement in reliance upon the terms of the Warranties.
6.02 Each Warranty:
(a) shall be construed as a separate Warranty and (save as
expressly provided to the contrary) shall not be limited or
restricted by reference to or inference from the terms of any
other Warranty or any other terms of this Agreement; and
(b) shall be given subject to the matters fairly disclosed in the
Disclosure Letter, and this Clause 6 and shall be deemed to be
repeated as at Completion with reference to the facts and
circumstances then existing.
6.03 The Warrantors undertake that:
(a) they will from time to time, forthwith disclose in writing to
NT any event, fact or circumstance which may become known to
any of them after the date hereof and which is materially
inconsistent with any of the Warranty or which could
reasonably be expected materially to affect a subscriber for
value of any of the New Shares or which may entitle NT to make
any claim under this Agreement; and
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(b) they will not, and will procure that no company in the Group
will, do or omit to do anything which may cause any of the
Warranties to be untrue at any time prior to or on Completion.
6.04 The rights and remedies of NT in respect of a breach of any of the
Warranties shall not be affected by Completion, by any investigation
made by or on behalf of NT into the affairs of any member the Group, by
the giving of any time or other indulgence by the NT to any person, by
the NT rescinding or not rescinding this Agreement, or by any other
cause whatsoever except a specific waiver or release by the NT in
writing; and any such waiver or release shall not prejudice or affect
any remaining rights or remedies of the NT.
6.05 NT acknowledges to and agrees with each of the Warrantors that:-
(a) the Warranties are the only representations, warranties or
other assurances of any kind given by or on behalf of the
Warrantors or any of them and on which NT may rely in entering
into and performing this Agreement;
(b) no other representation, warranty, statement, promise,
forecast or projection made by or on behalf of the Warrantors
or any of them may be relied on or form the basis of, or be
pleaded in connection with, any claim by NT under or in
connection with this Agreement;
(c) any claim by NT in connection with the Warranties (a "Warranty
Claim") shall be subject to the following provisions of this
Clause 6; and
(d) at the time of entering into this Agreement, various pieces of
information have been provided to NT pursuant to the
information request dated 10th September, 1998 prepared by
Xxxxxxx Xxxxxx & Master which information has not been
reviewed by NT or by its advisers. Subject to the contents of
such information, NT is not aware of any matter or thing which
is not disclosed or mentioned in the Disclosure Letter or in
this Agreement or the Press Announcement and which is
inconsistent with the Warranties or constitutes a breach of
any of them.
6.06 NT shall not be entitled to make any Warranty Claim:-
(a) in respect of any fact which has been fully, fairly and
specifically disclosed to NT in the Disclosure Letter or would
have been disclosed by a search made before the date of this
Agreement at the Hong Kong Companies Registry or any other
public office or registry in Hong Kong;
(b) if NT knew prior to entry into this Agreement that the
Warranty in question was untrue, misleading or had been
breached;
(c) to the extent that provision, reserve or allowance for the
matter or liability which would otherwise give rise to the
claim in question has been made in
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the Accounts or the Management Accounts or is otherwise taken
account of in the Accounts or the Management Accounts;
(d) if the Warranty Claim would not have arisen but for a change
in legislation announced or enacted after the date of its
Agreement (whether relating to taxation, rates of taxation or
otherwise) whether or not the change purports to be effective
retrospectively in whole or in part;
(e) to the extent that the Warranty Claim arises as a result of
any change after Completion in the accounting bases on which
the Company values its assets; or
(f) to the extent occasioned by any act or omission of NT after
Completion;
and to the extent that any Warranty Claim is increased as a result of
any of the matters set out in this Clause 6.06, the Warrantors shall
not be liable in respect of any amount by which such Warranty Claim is
so increased.
6.07 The Warrantors shall have no liability for breach of any Warranty which
may have an effect on the consolidated net asset value of the Company
unless
(a) as a result of the breach of one or more of the Warranties the
consolidated shareholders funds (i.e. the consolidated net
assets) of the Company as at 31st July 1998 is reduced (as a
result of a breach of any of the Warranties) by more than
HK$250,000,000; or
(b) the claim relates to the period after 31st July 1998 but
before Completion, when no claim will be made unless all such
claims relating to such period aggregate at least HK$500,000.
6.08 Any liability of the Warrantors under or in respect of the Warranties
shall be reduced by an amount equal to:
(a) the value or additional value of any fixed assets held by the
Company at Completion which are not included in the Accounts
or the Management Accounts;
(b) the amount of or by which any Taxation for which the Company
is or would otherwise be accountable is reduced or
extinguished as a result of a Warranty Claim giving rise to
such liability of the Warrantors;
(c) the amount by which any provision, reserve or allowance for
Taxation (not being a provision, reserve or allowance for
deferred Taxation), bad or doubtful debts or contingent or
other liabilities in the Accounts proves after Completion to
have been excessive, save by reason of a reduction in rates of
Taxation; and
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(d) the amount of any credits, recoveries or other benefits which
have been or will be received or obtained by the Company
because of or arising from any transaction, matter or thing
giving rise to such liability of the Warrantors.
6.09 If NT becomes aware of a matter or thing which could give rise to a
Warranty Claim, NT will use all reasonable endeavours to the Warrantors
as soon as reasonably practicable after NT becoming aware of those
facts if the Warranty Claim in question is as a result of or in
connection with a liability and NT shall procure that the Company makes
available to the Warrantors at the cost of the Warrantors) all such
information as the Warrantors may reasonably require for the purpose of
avoiding, contesting, disputing, resisting, appealing or comprising any
such liability.
6.10 The Warrantors shall cease to have any liability under or in respect of
the Warranties on the first anniversary of the Completion Date save in
respect of a Warranty Claim of which NT gives notice to the Warrantors
before such anniversary.
6.11 Nothing in this Agreement shall (or shall be construed to) release NT
from its duty to mitigate its loss in respect of any breach of the
Warranties.
6.12 If NT receives from the Warrantors an amount pursuant to any claim in
respect of a breach of any of the Warranties and NT subsequently
recovers from a third party a sum which is referable directly to such a
claim, NT shall forthwith pay to the Warrantors the sum it has
recovered from the third party to the extent that the aggregate of the
sum received from the Warrantors and the sum received from the third
party exceeds the aggregate of (i) the amount of the loss suffered by
NT with respect to such claim and (ii) any costs and expenses incurred
by NT in obtaining such sum from the third party.
6.13 The provisions of this Clause 6 shall have effect notwithstanding any
other provision of this Agreement.
6.14 NT hereby represents and warrants that:-
(a) as at the date of this Agreement and at the Completion Date,
NT is and shall remain an independent third party not
connected with the Company or any of the directors, chief
executives or substantial shareholders of the Company or any
of its subsidiaries or their respective associates (as defined
in the Listing Rules). NT hereby agrees and acknowledges that
the Company is entering into the Agreement in reliance upon
the representation and warranty made by it under this Clause
6.14; and
(b) neither NT nor any person acting in concert (as defined in the
Code) with it has acquired voting rights (as defined in the
Code) in the Company in the 6 months prior to the date hereof.
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7. NT'S RIGHTS
7.01 If before Completion (i) NT becomes aware that any of the Warranties
was at the date of this Agreement, or has since become, untrue or
misleading in any material respect or that the Warrantors are in breach
of any term of this Agreement in any material respect; or (ii) that the
Placing Agreement has been amended or any term of the Placing Agreement
waived without the prior written consent of NT; NT shall be entitled to
rescind this Agreement without liability to the Company or the
Warrantors.
7.02 Subject to the provisions of Clause 7.01, the rights, including rights
of rescission, conferred on NT by this Agreement are in addition and
without prejudice to all other rights and remedies available to NT; and
no exercise or failure to exercise a right under this Agreement or
otherwise or to invoke a remedy shall constitute a waiver of that right
or remedy by NT.
8. PERIOD BETWEEN EXCHANGE AND COMPLETION
8.01 The Warrantors undertake, unless and until this Agreement lapses or
unless specifically contemplated by this Agreement, that until
Completion that they will use their respective reasonable endeavours
(where a Warrantor is a director of the Company, subject to his
fiduciary duties) to procure that except with the prior written
approval of NT, which approval shall not be unreasonably withheld or
delayed:-
(a) the business of the Group will be carried on in the ordinary
and normal course and that no amendment will be made to the
Company's constitutional documents;
(b) no alteration will be made to the Company's authorised and
issued share capital and no options or rights shall be granted
in respect of the same under the Company's executive share
option scheme or otherwise;
(c) no member of the Group will enter into any service agreement
with any director of a member of the Group and no amendment
will be made to any such existing agreement;
(d) no dividend, distribution or bonus will be declared, paid or
made in respect of the profits or capital of the Company or
any of its non-wholly owned subsidiaries;
(e) other than in the ordinary course of business, no disposal of
the business or any property or assets of any member of the
Group of a value in excess of HK$500,000 or its equivalent
will be made to any person or third party and no interest in a
mortgage or charge thereon to secure obligations in aggregate
exceeding HK$500,000 or its equivalent will be made or
effected;
(f) save for any expenses incurred by the Company in connection
with this Agreement, the Placing Agreement and related
transactions, no material
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liability (including contingent liability) will be assumed or
incurred by a member of the Group and no contract of an
onerous or long term nature will be entered into by a member
of the Group; and
(g) such meetings of the directors or members of the Company as
may be necessary to pass such resolutions as may be required
to enable this Agreement to become unconditional will be
convened.
8.02 The Warrantors shall procure that as from the date of this Agreement NT
and any persons authorised by it shall be given reasonable access to
the officers, employees, premises, plant, machinery, books of account,
records and documents of all members of the Group and the Warrantors
shall use all reasonable endeavours to procure that the officers and
employees of the Group shall give promptly to NT and any persons
authorised by it all information in relation to the Group that NT may
reasonably request after giving reasonable notice therefor.
9. COSTS AND EXPENSES
Each of the parties to this Agreement will bear its or his own costs
and expenses incurred in relation to the preparation of this Agreement
and the Subscription except that the Company shall bear all capital
duty in relation to the allotment and issue of the New Shares and the
reasonable costs of obtaining the confirmation from the SFC referred to
in Clause 2.01(d).
10. TIME OF THE ESSENCE
Time will be of the essence of this Agreement.
11. ANNOUNCEMENTS
Save as otherwise required by the Stock Exchange or the SFC, none of
the parties shall make any public announcement or communication other
than the Press Announcement and the Circular in relation to the
Subscription without the prior written approval of the other parties to
this Agreement.
12. NOTICES
12.01 A notice, approval, consent or other communication in connection with
this Agreement:
(a) must be in writing;
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(b) in the case of NT, must be marked for the attention of Xx.
Xxxxx Xxxxxxxx and in the case of the Company, must be marked
for the attention of Xx. Xxxxxxxx Fukumori;
(c) must be left at the address of the addressee, or sent by
prepaid ordinary post (airmail if posted to or from a place
outside Hong Kong) to the address of the addressee or sent by
facsimile to the facsimile number of the addressee which is
specified in this clause or if the addressee notifies another
address or facsimile number in Hong Kong then to that address
or facsimile number.
The facsimile number of each party is:
Company
Facsimile: 2750 4362
NT
Facsimile: 2341 4164
Warrantors
Facsimile: 2750 4362
12.02 A notice, approval, consent or other communication shall take effect
from the time it is received (or, if earlier, the time it is deemed to
be received in accordance with sub-clause 12.03) unless a later time is
specified in it.
12.03 Subject to sub-clause 12.04 below, a notice is deemed to be received:
(a) in the case where it is left at the address of the addressee,
upon delivery at that address;
(b) in the case of a posted letter, on the first business day
after posting of, if posted to or from a place outside Hong
Kong, the third business day after posting;
(c) in the case of facsimile, on production of a transmission
report from the machine from which the facsimile was sent
which indicates that the facsimile was sent in its entirety to
the facsimile number of the recipient provided that a
confirmatory copy of such facsimile shall have been sent by
post or by hand in accordance with the above provisions within
24 hours of such transmission.
12.4 A notice received or deemed to be received in accordance with
sub-clause 12.3 above on a day which is not a business day or after 5
p.m. on any business day, shall be deemed to be received on the next
following Business Day.
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12.7 Each party undertakes to notify all of the other parties by notice
served in accordance with this clause if the address specified herein
is no longer an appropriate address for the service of notice.
13. GOVERNING LAW
13.01 This Agreement shall be governed by and construed in accordance with
the law of the Hong Kong. The parties hereto hereby submits to the
non-exclusive jurisdiction of the Courts of Hong Kong.
13.02 NT hereby appoints Nam Tai Electronic & Electrical Products Limited
whose registered office is at Xxxx 0, 00/X., Xxxxx 0, Xxxxx Xxxx Xxxx
City, 00 Xxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxx, Xxxx Xxxx as its process
agent to accept service of process in the HK SAR.
13.03 If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect, the legality, validity and
enforceability of the remaining provisions of this Agreement shall not
be affected or impaired thereby, unless the primary purpose of the
Agreement shall be frustrated thereby.
13.04 This Agreement constitutes the whole agreement between the parties
hereto and supersede all previous agreements between the parties
relating to these transactions and it is expressly declared that no
variations hereof shall be effective unless made in writing and signed
by all the parties hereto.
13.05 Each of the parties hereto shall do and execute or procure to be done
and executed all such further acts, deeds, things and documents as may
be necessary or desirable to give effect to the terms of this
Agreement.
13.06 This Agreement may be executed in one or more counterparts, each of
which shall be binding on each party by whom or on whose behalf it is
so executed, but which together shall constitute a single instrument.
13.07 NT undertakes that it will not acquire voting rights (as defined in the
Code), save for the New Shares, in the Company for the period
commencing from the date hereof and ending on the date of the
shareholders' meeting of the Company where the resolutions referred to
in Clause 2.01(c) are passed (both dates inclusive).
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
SIGNED by )
)
)
)
17
duly authorised for and on behalf )
of ALBATRONICS (FAR EAST) )
COMPANY LIMITED )
SIGNED by )
)
)
)
duly authorised for and on behalf )
of NAM TAI ELECTRONICS, )
INC. )
SIGNED by )
NAKAHARA FUKUMORI )
in the presence of : )
SIGNED by )
WAKAKI KAIZO )
in the presence of: )
18
Schedule 1
Names and addresses of Warrantors
(i) The Company whose registered office is at Xxxx Xx.0, 0xx Xxxxx, Xxxxx
X, Xx Xxxx Xxxxxx, Xx.00 Xxxx Xxxx Road, Kowloon Bay, Kowloon, Hong
Kong.
(ii) NAME ADDRESS
NAKAHARA Fukumori 16C Emperor Height
0 Xxx'x Xxxx
Xxxxxxxxxxx
Xxxxxxx
Xxxx Xxxx
WAKAKI Kaizo Xxxx 00, 00/X
Xxxxx 0, Xxxx Xxxx Parkview
00 Xxx Xxx Xxxxxxxxx Xxxx
Xxxx Xxxx
19
Schedule 2
Details of the Company
1. Name: Albatronics (Far East) Company Limited
2. Place of Incorporation: Hong Kong
3. Authorised Share capital: HK$30,000,000 divided into 300,000,000 shares
of HK$0.10 each
Name Address
---- -------
4. Directors:
XXXXXXXX Xxxxxxxx 00X Emperor Height
0 Xxx'x Xxxx
Xxxxxxxxxxx
Xxxxxxx
Xxxx Xxxx
WAKAKI Kaizo Xxxx 00, 00/X
Xxxxx 0, Xxxx Xxxx Parkview
00 Xxx Xxx Xxxxxxxxx Xxxx
Xxxx Xxxx
XXXXXXXX Xxxxxxxxx Xxxx X, 00/X., Xxxxx 0
Xxxxxxxxx Xxxxxxx
00 Xxxxxxx Xxxx
Xxxx Xxxx
MAH Hoon Hai 7/F., Flat A, Block 10
Pacific Palisades
0 Xxxxxxx Xxxx Xxxx
Xxxx Xxxx
OGURA Keiichi 7/F., Flat C, Block 11, Site 00
Xxxxxxx Xxxxxx
Xxxx Xxx
Xxxxxxx
Xxxx Xxxx
NON-EXECUTIVE DIRECTOR
LAI Wing Xxxxx 17th Floor, Flat B
Albron Court
99 Xxxxx Road
Hong Kong
20
INDEPENDENT NON-EXECUTIVE DIRECTORS
XXXX Xxxxx Xxxxxx, Xxxxxx Xxxx X, 00xx Xxxxx, Xxxxx 0
Xxxx Xxxxxx
000-000 Xxxxxxxx Xxxx
Xxxxx Xxxxx
Xxxx Xxxx
LUI Tat Ming Xxxx 0, 00/X., Xxxxx X
Xxxx Xxxx Xxxxx
200 Xxx Xxx Road
Chai Wan
Hong Kong
5. Secretary: Xxxxx Xxxx Xxxx Xxxxx
6. Auditors: Deloitte Touche Tohmatsu
7. Financial year end date: 31st March
21
Schedule 3
Warranties
The Warrantors hereby jointly and severally warrant and represent to NT that:-
1. All information contained in the recitals to and in Schedule 2 of this
Agreement is correct and to the best of the knowledge, information and
belief of the Warrantors all information relating to the Group which is
known to any of the Warrantors and which would be material to a
subscriber for value of the New Shares (in particular information
relating to any material contract or commitment of an unusual or
onerous nature) has been fully and fairly disclosed to NT and all
information provided to NT pursuant to the information request dated
10th September, 1998 prepared by Xxxxxxx Xxxxxx & Master is complete
and accurate in all respects;
2. There is no option, warrant, right to subscribe on, over or affecting
any shares or debenture or registered capital or securities of any
member of the Group and no agreement or commitment is outstanding which
calls for the allotment or issue of any shares or debentures in any
member of the Group;
3. The financial or business information and all statements of fact
concerning the Group as contained in the information publicly disclosed
by any member of the Group at any time prior to the date hereof and/or
as contained in the Press Announcement and all statements of opinion,
intention or expectation of the directors in relation to the Company or
any of its subsidiaries contained in any such document and/or in the
Press Announcement are truly and honestly held and have been made after
due and careful consideration, and there is no fact or matter omitted
from such document and/or the Press Announcement the omission of which
would make any statement in the such document and/or the Press
Announcement misleading or which is otherwise material in the context
of the Subscription do not contain any material misrepresentation of
fact or omit to state a fact necessary to make the information
contained therein not materially misleading;
4. The Accounts show a true and fair view in all respects of the state of
affairs of the Company and of the Group as at 31st March 1998 and of
the profit for the year then ended that date and except as stated in
the Accounts, were prepared in accordance with generally accepted
accounting principles in Hong Kong consistently applied;
5. The Management Accounts were prepared in accordance with the same
accounting policies and practices as the Accounts and represent a true
and fair view of the state of affairs and financial position of the
Group as at 31st July 1998 and of the results of the Group for the
financial period ended on such date;
6. Except as stated in the Accounts the Group owns all of its assets shown
or comprised in the Accounts as owned assets and has a good title to
such assets and all such assets and all documents necessary to prove
the Group's title to such assets are in its possession or under its
control;
22
7. As at the date of this Agreement and as at Completion no member of the
Group has or will have guaranteed the liability of any third party
which is not a member of the Group save and except shipping guarantees
entered into in the ordinary course of business of the Group.
8. To the best of the knowledge, information and belief of the Warrantors,
there is no order, decree or judgment of any court or governmental
agency or regulatory body outstanding or anticipated against any member
of the Group nor is there any investigation or enquiry by any
governmental agency or regulatory body outstanding or against any
member of the Group which in such case may reasonably be expected to
have or has had a material adverse effect upon the financial position
of the Group;
9. To the best of the knowledge, information and belief of the Warrantors,
in relation to any release, omission, disposal or other fact or
circumstance which causes or might cause pollution of the environment
or harm to human health, no past or present member of the Group has, in
any manner, to an extent which is material in the context of the Group
taken as a whole (i) committed any violation of any laws, statutes,
ordinances, regulations or other requirements of any relevant
governmental authority in the PRC (including the Hong Kong SAR) or
Japan; and/or (ii) incurred any liability (whether actual or
contingent) with respect thereto;
10. To the best of the knowledge, information and belief of the Warrantors,
no member of the Group is in material breach or in material default
(nor any event occurred which, with the giving of notice or the lapse
of time or both would result in a material default) under any law,
agreement, licence, certificate, instrument or authorisation which is
binding upon or affects it or any of its assets or revenues or
operation of its business or is in breach or violation of its
memorandum and articles of association or other constitutive document
which is likely to have a material adverse effect on the Group taken as
a whole;
11. Since 31st March 1998, except as publicly announced by the Company
prior to the date hereof and as disclosed in the Press Announcement:
(a) there has been no adverse change in the business, financial or
trading position or profits or prospects of any other member
of the Group which in any such case is material in the context
of the Group taken as a whole;
(b) to the best of the knowledge, information and belief of the
Warrantors, no litigation, arbitration proceedings,
prosecution or other legal proceedings have been instituted,
announced or threatened by or against or remaining outstanding
against any member of the Group which in any such case could
have a material affect on the Group taken as a whole );
(c) each member of the Group has carried on its business in the
ordinary course and so as to maintain it in a going concern in
the same manner as previously carried on;
23
(d) no member of the Group has declared, paid or made or proposed
to declare, pay or make any bonus in respect of shares,
dividends or other distribution other than to members of the
Group;
(e) no member of the Group has issued or proposed to the issue of
any debentures or incurred any indebtedness or liabilities or
commitments, whether actual, contingent or deferred, which is
material in the context of the Group taken as a whole other
than in the ordinary course of business of the relevant
company;
(f) no member of the Group has disposed of or transferred,
mortgaged or encumbered any asset or any right, title or
interest in any asset in a manner which is material in the
context of the Group taken as a whole;
(g) no member of the Group has entered into any contract or
commitment (whether in respect of capital expenditure or
otherwise) which is of a long-term or unusual nature or
involves or could involve an obligation of a nature or
magnitude, in either case which is material in the context of
the Group taken as a whole;
(h) no transaction has taken place which might give rise to a
claim for Taxation for any member of the Group other than
transactions in respect of or arising in the ordinary course
of business of the Group;
(i) no member of the Group has authorised or proposed or announced
its intention to propose any merger or demerger or acquisition
or disposal of assets or shares which are material in the
context of the Group taken as a whole (other than in the
ordinary course of trading) or any such material change in its
share or loan capital;
(j) no member of the Group has entered into any reconstruction,
amalgamation, transaction or arrangement (otherwise than in
the ordinary course of business of the relevant company) which
is material in the context of the Group taken as a whole;
(k) no member of the Group has taken any corporate action or had
any order for its winding up, dissolution or reorganisation or
for the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer of all or
as substantial part of its assets and revenues;
(l) no member of the Group has entered into or varied any terms of
any service agreement with any of its directors;
(m) no member of the Group has entered into any agreement or
commitment or passed any resolution with respect to any of the
transactions or events referred to in this paragraph.
24
12. There is no provision in any arrangement, agreement, licence or other
instrument to which any member of the Group is a party or to which any
of their assets may be bound, entitled or be subject which, in
consequence of the Subscription and/or the Placing, would or might to
an extent which is material in the context of the Group taken as a
whole, result in:
(a) any monies borrowed by, or other indebtedness , actual or
contingent of, any member of the Group being or becoming
repayable or being capable of being declared repayable
immediately or prior to their stated maturity;
(b) the creation of any mortgage, charge or other security
interest over the whole or any part of the business, property
or assets of such member or any such security (whenever
arising or having arisen) becoming enforceable;
(c) cause any breach of such arrangement, agreement, licence or
instrument or any limits, restrictions, obligations or
commitments contained therein being infringed or exceeded, or
such arrangement, agreement, licence or instrument being
terminated or adversely affected or any actions being taken of
an adverse nature or any obligation arising thereunder;
(d) any assets of any such member being disposed of other than in
the ordinary course of business;
(e) the interest or business of any such member in or with any
firm or body or person or any arrangements relating to such
interests or business, being terminated or adversely modified
or affected;
(f) any such member ceasing to be able to carry on business under
any name under which it presently does so; or
(g) the creation of liabilities by such member.
