EXHIBIT 10.16
Dated the day of 1999
XXXXXX.XXX, INC.
and
ASIA PIONEER LIMITED
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SUBSCRIPTION AGREEMENT
IN RELATION TO SHARES IN
ASIA PIONEER LIMITED
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AGGARWAL & ASSOCIATES,
Solicitors,
Rooms 0000-0, 00xx Xxxxx,
Xx. Xxxxxx'x Xxxxxxxx,
0 Xxx Xxxxx Xxxxxx,
Xxxxxxx,
Xxxx Xxxx.
Ref.: 0203-0295/99/NA/RKW
THIS AGREEMENT is made the 16th day of November 1999.
BETWEEN :-
(1) XXXXXX.XXX, INC., a company incorporated in the state of Delaware, the
United States of America and having its registered address at 000
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxx Xxxx 00000, U.S.A. ("CDK");
and
(2) ASIA PIONEER LIMITED, a company incorporated in the Cayman Islands and
having its registered office at Huntlaw Building, P.O. Box 2804, Xxxxxx
Town, Grand Cayman, Cayman Islands ("APL").
WHEREAS :-
(A) APL is a private company limited by shares incorporated in the Cayman
Islands.
(B) CDK is a company incorporated under the laws of the State of Delaware,
U.S.A. further particulars of which as at the date of this Agreement
are set out in Schedule 1 .
(C) APL has agreed to subscribe for the Subscription Shares (as defined
below) and CDK has agreed to issue and allot the same to APL on the
terms and conditions contained in this Agreement.
(D) APL has agreed to enter into a Licencing Agreement with CDK's
subsidiary, CDKNet, LLC for the licencing of such CDK Technology(TM) by
CDKNet, LLC to APL.
NOW IT IS HEREBY AGREED as follows :-
1. DEFINITIONS AND INTERPRETATION
------------------------------
1.1 In this Agreement, unless the context otherwise requires, the following
words and expressions shall have the following meanings :-
"THIS AGREEMENT" means this agreement as amended, modified or
supplemented from time to time;
-1-
"APL SHARES" means all those issued and allotted shares of APL
by APL to CDK's subsidiary CDKNet, LLC being 4,890
shares of par value US$ 0.01 each in the capital
of APL and constituting approximately [4.89%] of
the issued share capital of APL as at the date of
such allotment of such shares and one of such
shares shall be known as "APL Share".
"ARTICLES" means the articles of association of CDK for the
time being;
"BOARD" means the board of directors of CDK for the time
being;
"DIRECTOR" means a director of CDK for the time being;
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended;
"GROUP" means CDK and any other company which is a
Subsidiary of or a holding company of or another
Subsidiary of a holding company of CDK and
"MEMBER(S) OF THE GROUP" shall be construed
accordingly;
"HONG KONG" means the Hong Kong Special Administrative Region;
"SEC" means the U.S. Securities and Exchange Commission;
"SHARES" means shares of common stock, par value US$ 0.0001
per share, of CDK;
"SUBSCRIPTION" means the subscription for the Subscription Shares
pursuant to Clause 2 and "SUBSCRIBE" shall be
construed accordingly;
"SUBSCRIPTION means the 1,800,000 Shares to be purchased
SHARES" hereunder constituting approximately nine and
fifty-seven one hundredths per cent (9.57%) of the
issued common share capital of CDK as of 11
November 1999 as enlarged by the issue of the
Subscription Shares set out in Clause 2.2;
"SUBSCRIPTION means US$0.50 per Subscription Share;
SHARE PRICE"
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"SUBSIDIARY" for the purpose of this Agreement a company shall
be deemed to be a subsidiary of another company,
if :-
(a) that other company :-
(i) controls the composition of the board
of directors of the first-mentioned
company; or
(ii) controls more than half of the voting
power of the first-mentioned company;
or
(iii) holds more than half of the issued
share capital or issued common share
capital (as the case may be) of the
first-mentioned company (excluding any
part of it which carries no right to
participate beyond a specified amount
in a distribution of either profits or
capital);or
(b) the first-mentioned company is a subsidiary
of any company which is that other company's
subsidiary;
"US$" Means the lawful currency of the United States of
America;
"WARRANTIES" Means the representations, warranties and
undertakings on the part of each CDK and APL
respectively set out in Clause 4 .
1.2 References in this Agreement to ordinances and to statutory provisions
shall be construed as references to those ordinances or statutory
provisions as respectively modified (on or before the date hereof) or
re-enacted (whether before or after the date hereof) from time to time
and to any orders, regulations, instruments or subordinate legislation
made under the relevant ordinances or provisions thereof and shall
include references to any repealed ordinance or provisions thereof
which has been so re-enacted (with or without modifications).
1.3 The headings are inserted for convenience only and shall not affect the
construction of this Agreement.
1.4 Except where the context otherwise requires words denoting the singular
include the plural and vice versa; words denoting any one gender
include all genders; words denoting persons include incorporations and
firms and vice versa.
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1.5 References to Clauses, Sub-clauses, Paragraphs and Schedules are
(unless the context otherwise requires) to clauses, sub-clauses,
paragraphs of and schedules to this Agreement.
1.6 The Schedules form part of this Agreement.
2. SUBSCRIPTION AND COMPLETION
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2.1 APL in reliance upon the representations warranties undertakings
agreements and covenants referred to in this Agreement hereby agrees
and undertakes to Subscribe for the Subscription Shares at the
Subscription Share Price subject to the Articles and the terms and
conditions contained in this Agreement.
2.2 The aggregate Subscription Share Price for the Subscription Shares is
US$900,000.00 and shall be satisfied by the issue and allotment by CDK
of the Subscription Shares as follows :- (The Subscription Shares shall
be allotted and issued credited as fully paid and on terms that they
will rank pari passu in all respects with the chartered rights (i.e.
memorandum and articles of association and bye-laws of CDK) with the
shares of common stock in CDK in issue as at the date hereof )
(i) Upon the signing of this Agreement the sum of US$100,000.00
shall be paid by APL to CDK ("First Payment") for the issue and
allotment by CDK of 200,000 of the Subscription Shares ("First
Allotment").
(ii) On or before 30 December 1999 the sum of US$150,000.00 shall be
paid by APL to CDK ("Second Payment") for the issue and
allotment by CDK of 300,000 of the Subscription Shares ("Second
Allotment").
(iii) On or before 28 January 2000 the sum of US$150,000.00 shall be
paid by APL to CDK ("Third Payment") for the issue and
allotment by CDK of 300,000 of the Subscription Shares ("Third
Allotment").
(iv) On or before 29 February 2000 the sum of US$150,000.00 shall be
paid by APL to CDK ("Fourth Payment") for the issue and
allotment by CDK of 300,000 of the Subscription Shares ("Fourth
Allotment").
(v) On or before 30 March 2000 the sum of US$150,000.00 shall be
paid by APL to CDK ("Fifth Payment") for the issue and
allotment by CDK of 300,000 of the Subscription Shares ("Fifth
Allotment").
(vi) On or before 28 April 2000 the sum of US$150,000.00 shall be
paid by APL to CDK ("Sixth Payment") for the issue and
allotment by CDK of 300,000 of the Subscription Shares ("Sixth
Allotment").
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(vii) On or before 30 May 2000 the sum of US$50,000.00 shall be paid
by APL to CDK ("Seventh Payment") for the issue and allotment
by CDK of 100,000 of the Subscription Shares ("Seventh
Allotment").
(The First Payment, Second Payment, Third Payment, Fourth Payment,
Fifth Payment, Sixth Payment and the Seventh Payment shall hereinafter
collectively be known as "Payments".)
(The First Allotment, Second Allotment, Third Allotment, Fourth
Allotment, Fifth Allotment, Sixth Allotment and the Seventh Allotment
shall hereinafter collectively be known as "Allotments".)
Prior to any of the relevant Payments being made by APL to CDK in
respect of any of the relevant Allotments described above, CDK shall
send to APL (by way of fax and overnight courier) a copy of the
relevant written instructions to the relevant transfer agent or share
registrar to issue the Subscription Shares to be allotted to APL along
with the relevant written confirmation of the transfer agent or share
registrar in respect of such issue instructions relating to the issue
of Subscription Shares to APL. Upon receipt of the fax, APL shall
deliver to CDK within one (1) business day the respective Payment by
way of a wire (or telegraphic transfer) of immediately available funds
to the CDK bank account as directed by CDK by a fax or email of wire
instructions thereof.
2.3 Completion of the First Allotment shall take place promptly upon
execution of this Agreement or at such other time and place as may be
agreed between the parties to this Agreement.
2.4 At completion of the First Allotment :-
2.4.1 CDK shall procure that :-
(a) a meeting of the Board is convened and duly held at which valid
resolutions are passed to authorize the issue and allotment of
the Subscription Shares relating to the First Allotment to APL
and the entering into and completing of this Agreement by CDK;
(b) CDK shall allot and issue credited as fully paid the Subscription
Shares relating to the First Allotment to APL and shall enter the
name of APL in the register of members of CDK as registered
holder of the Subscription Shares;
(c) CDK shall issue and deliver to APL appropriate share certificates
for the Subscription Shares duly executed by CDK.
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2.4.2 Upon payment of any of the respective Second Payment, Third Payment,
Fourth Payment, Fifth Payment, Sixth Payment and Seventh Payment by APL
to CDK shall procure that :-
(a) such meetings of the Board is convened and duly held at which
valid resolutions are passed to authorize the issue and allotment
of the relevant respective Second Allotment, Third Allotment,
Fourth Allotment, Fifth Allotment, Sixth Allotment and Seventh
Allotment.
(b) CDK shall allot and issue credited as fully paid the Subscription
Shares relating to the relevant and respective Second Allotment,
Third Allotment, Fourth Allotment, Fifth Allotment, Sixth
Allotment and Seventh Allotment in the register of members of CDK
as registered holder of the Subscription Shares relating to the
relevant and respective Second Allotment, Third Allotment, Fourth
Allotment, Fifth Allotment, Sixth Allotment and Seventh
Allotment.
(c) CDK shall issue and deliver to APL appropriate Share Certificates
for the Subscription Shares relating to the relevant and
respective Second Allotment, Third Allotment, Fourth Allotment,
Fifth Allotment, Sixth Allotment and Seventh Allotment.
2.4.3 APL shall procure that a meeting of the board of directors of APL is
convened and duly held at which valid resolutions are passed to
authorize the purchase in respect of the issue and allotment of the
Subscription Shares by CDK and the entering into and completing of this
Agreement by APL;
2.4.4 Upon the completion of the Seventh Allotment of Subscription Shares to
APL, CDK shall within 90 days from the date of the completion of the
Seventh Allotment of Subscription Shares register all the Subscription
Shares allotted to APL per Clause 2.2 above with the SEC.
Shall CDK fail to register all the Subscription Shares with the SEC
within 90 days from the date of the completion of the Seventh
Allotment, then CDK shall pay to APL an amount in US$ equivalent to 1%
per month of the aggregate Subscription Share Price for the
Subscription Shares (i.e. 1% per month of US$900,000.00) ("the
Subscription Interest") to APL and which Subscription Interest shall
accrue until the Subscription Shares are registered with the SEC and
shall be paid to APL upon the successful registration of the
Subscription Shares with the SEC.
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3. EVENTS OF DEFAULT
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3.1 In the event that :-
3.1.1 the Shares are not (i) registered with the SEC pursuant to
Section 12(g) of the Exchange Act and (ii) eligible for trading
on the National Association of Securities Dealers
Over-the-Counter Bulletin Board ("OTCBB") or any nationally
recognized stock exchange or electronic trading system (a
"National Exchange") on or before 28 February 2000 for whatever
reasons; or
3.1.2 the Shares are delisted or otherwise become ineligible for
trading on the OTCBB or on any other National Exchange on or
prior to 1 July 2000, save and except in the following
circumstances :-
(a) the Shares cease to be so listed due to CDK ceasing to have
a class of equity securities registered under the Exchange
Act ; and
(b) the termination of such listing was as a result of a
voluntary act or decision of CDK and its shareholders and
whereby such voluntary act or decision leads to a general
offer being made to all shareholders of CDK for all the
Shares being held by such shareholders; or
3.1.3 if on or before 1 July 2000 :-
(a) CDK shall be subject to any proceedings relating to
bankruptcy, winding up or insolvency in any courts of
competent jurisdiction; or
(b) CDK shall cease, or shall threaten to cease, to carry on its
business;
(c) APL shall terminate (pursuant to the terms of the licence
agreement) such licence agreement for the licence of CDK
Technology(TM) with CDK's subsidiary, CDKNet, LLC;
then without prejudice to any other rights or remedies of APL in
respect of any antecedent breach on the part of CDK under this
Agreement, APL shall be entitled to:
(i) by notice in writing to CDK within a period of [twenty-eight
(28)]
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days upon APL becoming aware of the happening of any of such
events (whichever is later) to forthwith terminate this
Agreement; and/or
(ii) (if applicable) to terminate such licence agreement for the
licence of CDK Technology(TM) with CDK's subsidiary, CDKNet,
LLC and in which event CDK shall procure its subsidiary
CDKNet, LLC to allow and permit such termination without any
claims, demands or legal action against APL.
3.2 In the event that either :-
3.2.1 APL fails to make any of the Payments on their respective due
dates; or
3.2.2 On or before 1 July 2000 :-
(i) APL shall be subject to any proceedings relating to
bankruptcy, winding up or insolvency in any courts of
competent jurisdiction; or
(ii) APL shall cease, or shall threaten to cease, to carry on its
business; or
(iii) CDK's subsidiary, CDKNet, LLC shall terminate (pursuant to
the terms of the licence agreement) such licence agreement
for the licence of CDK Technology(TM) with APL;
then without prejudice to any other rights or remedies of CDK in
respect of any antecedent breach on the part of APL under this
Agreement, CDK shall :-
(a) be entitled to by notice in writing to APL within a period
of [twenty eight (28) days] upon CDK becoming aware of the
happening of any such event (whichever is later) to
forthwith terminate this Agreement; and/or
(b) (if applicable) be entitled on behalf of CDK's subsidiary
CDKNet, LLC to terminate on behalf of CDKNet, LLC any
licence agreement (in respect of CDKNet, LLC's CDK
Technology(TM)) entered into between CDKNet, LLC and APL.
4. WARRANTIES
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4.1 Each party hereto hereby represents and warrants to the other party that :-
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4.1.1 it has all the necessary capacity to enter into, perform and be
bound by the terms and conditions of this Agreement;
4.1.2 it has taken or will take all steps and action and has obtained
or will obtain all consents, approvals and waivers necessary or
required for it to enter into, perform and be bound by the terms
and conditions of this Agreement;
4.1.3 the terms and conditions of this Agreement are valid and binding
on it and are enforceable against it in accordance with the terms
and conditions set out herein.
4.2 In consideration of APL agreeing to enter into this Agreement CDK
warrants and represents to APL as at the date of this Agreement that,
to the best of CDK's knowledge :-
4.2.1 (a) the particulars of CDK contained in Schedule [1] are true
and accurate in all respects;
(b) CDK has approximately 17,000,000 shares of common stock
issued and outstanding as of 11 November 1999;
4.2.2 all returns particulars resolutions and other documents required
to be filed with the relevant authorities in the U.S.A. by CDK
have been duly filed and CDK has complied with all legal
requirements in connection with its formation and with all issues
of its shares;
4.2.3 following the issue and allotment of the Subscription Shares by
CDK, APL will be the beneficial owner of approximately] nine and
fifty-seven one hundredths per cent (9.57%) of the issued common
share capital of CDK as of 11 November 1999 as enlarged by the
issue of the Subscription Shares set out in Clause 2.2;
4.2.4 the Subscription Shares shall be allotted and issued credited as
fully paid and on terms that they will rank pari passu in all
respects with the chartered rights with the shares of common
stock in CDK in issue as at the date of allotment of the
Subscription Shares ;
4.2.5 (a) CDK has complied with all necessary and applicable
regulations and laws of the SEC and other regulatory
authorities in the United States of America (including the
Exchange Act);
(b) CDK's stock was previously traded on the OTCBB but has
recently been removed from the OTCBB and instead has its
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shares currently traded on the so-called "Pink Sheets";
4.2.6 (a) the audited consolidated financial statements of CDK and its
Subsidiaries as set out in Form 10-SB filed with the SEC on
7 October 1999 ("FORM 10-SB") a copy of which financial
statements is attached hereto marked "ANNEX 1" has been
prepared in accordance with the requirements of relevant
ordinances, regulations and statutes and in accordance with
generally accepted accounting principles and practices in
U.S.A. consistently applied. Such financial statements are
hereinafter called "THE ACCOUNTS OF CDK".
CDK is now preparing to file and Amendment No. 2 to the Form
10-SB in approximately one week from the date of this
Agreement with the SEC to reflect Form 10-QSB type
disclosures. CDK undertakes to send to APL a copy of the
said Amendment No. 2 immediately after filing of the same
with the SEC;
(b) the Accounts of CDK are true and accurate in all material
respects and show a true and fair view of the assets,
liabilities, capital commitments and the state of affairs of
CDK and its Subsidiaries as at 30th June 1999;
(c) since 30th June 1999 :-
(i) each of CDK and its Subsidiaries has carried on its
business in the ordinary and usual course;
(ii) no distribution of capital or income has been declared
made or paid in respect of any share capital of each of
CDK and its Subsidiaries;
(iii) each of CDK and its Subsidiaries has not assumed or
incurred any liabilities or expenditure otherwise than
in the ordinary course of carrying on its day-to-day
business;
(iv) there has been no material adverse change in the
financial position of each of CDK and its Subsidiaries;
4.2.7 the assets and equipment included in the Accounts of CDK or
acquired by each of CDK and its Subsidiaries since 30th June 1999
are the property of and owned by CDK and/or its Subsidiaries (as
the case may be) and are not subject to any debenture, mortgage,
encumbrance or charge or any other third party interest save as
for such equipment which is leased by,
-10-
or used as collateral by CDK or its Subsidiaries;
4.2.8 all the technologies and products marketed as developed by each
of CDK and its Subsidiaries are the absolute property of (or for
which the appropriate rights have been granted) CDK and/or its
Subsidiaries (as the case may be) and are not subject to any
third party interest and do not infringe on any intellectual
property rights or other rights whatsoever of any other persons;
4.2.9 all debts owed to each of CDK and its Subsidiaries will be good
and collectable in the ordinary course of business and no amount
included in the Accounts of CDK owing to each of CDK and/or its
Subsidiaries (as the case may be) at 30th June 1999 has been
released for an amount less than the value at which it was
included in the Accounts of CDK;
4.2.10(a) all necessary licences consents permits and authorities have
been obtained by each of CDK and its Subsidiaries to enable
each of them to carry on its business lawfully and
effectively in the places and in the manner in which such
business is now carried on;
(b) each of CDK and its Subsidiaries has not done or omitted to
do anything in contravention or breach of any statute, order
or regulation or the like in U.S.A. or elsewhere applicable
to it or its business and giving rise to any fine, penalty,
default proceedings or other liability on its part;
(c) each of CDK and its Subsidiaries has conducted and is
conducting its business in accordance with applicable laws
and regulations in U.S.A. or elsewhere applicable to it;
4.2.11 there are no agreements or arrangements entered into by each of
CDK and its Subsidiaries otherwise than by way of bargain at
arm's length and all contracts are entered into in the normal
course of business;
4.2.12 each of CDK and its Subsidiaries is not engaged either on its
own account or vicariously in any material litigation or
arbitration or tribunal proceedings and no such litigation
arbitration or tribunal proceedings are pending or threatened by
or against each of CDK and its Subsidiaries;
4.2.13(a) save as for the directors and/or employees set out in
Schedule 2 with particulars of such contract therein, there
are not in existence any contracts of service with directors
or employees of each of CDK and its Subsidiaries which
cannot be terminated by notice without giving rise to any
claim for damages or compensation
-11-
(other than under any relevant employment legislation;
(b) each of CDK and its Subsidiaries and their respective
employees are not involved in any industrial dispute;
4.2.14(a) each of CDK and its Subsidiaries has properly made all
returns and provided all other information required for the
purposes of taxation and none of such returns is disputed by
the Internal Revenue Services, U.S.A. or any other authority
concerned;
(b) all payments by each of CDK and its Subsidiaries to any
person which ought to have been made under deduction or
withholding of tax have been so made and each of CDK and its
Subsidiaries has (where required by law to do so) accounted
to the Internal Revenue Services, U.S.A. for the tax
deducted or withheld.
4.2.15 that it is not aware of any intention and shall not on or before
1 July 2000 voluntarily (through its shareholders or Directors)
cease to be listed and which act would lead to a general offer
being made to all the shareholders for such shares of CDK being
held by the said shareholders;
4.2.16 that it shall prior to any of the relevant Payments being made
by APL to CDK in respect of any of the relevant Allotments
described in Clause 2.2, it shall send to APL (by way of fax and
overnight courier) a copy of the relevant written instructions to
the relevant issue agent or share registrar to transfer the
Subscription Shares to be allotted to APL along with the relevant
written confirmation of the issue agent or share registrar in
respect of such issue instructions relating to the transfer of
Subscription Shares to APL and not revoke or change its
instructions to the transfer agent or share registrar without the
written consent of APL;
4.2.17 that it shall upon the completion of the Seventh Allotment of
Subscription Shares to APL, use its best endeavors and take all
necessary steps to cause the Subscription Shares to be registered
with the SEC within 90 days from the date of the completion of
the Seventh Allotment of Subscription Shares.
5. ANTI-DILUTIVE PROVISIONS
------------------------
5.1 Subject to Clause 5.2, CDK hereby agrees and undertakes with APL that
it will not for a period of one (1) year from the date of this
Agreement (the "RESTRICTED PERIOD") :-
5.1.1 allot and issue any shares in CDK; or
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5.1.2 issue securities or any instrument convertible into shares or
debentures, or share warrants or options in respect of shares in
CDK;
at a price less than the Subscription Share Price to any other persons
without the prior consent in writing of APL Provided that the
restrictions herein contained shall not apply to the issue and
allotment of shares of CDK hereto pursuant to the exercise of any
rights under the share option plan in force from time to time for the
benefits of the executives and employees of CDK.
5.2 Notwithstanding the restrictions contained in Clause 5.1, CDK shall be
entitled to do any of the matters restricted pursuant to Clause 5.1
without the prior consent in writing of APL during the Restricted
Period Provided that it shall simultaneously upon the happening of such
event issue and allot such number of additional shares in itself
(excluding fraction of a share if any) to APL as shall be necessary to
ensure that no dilution shall take place in relation to the share
ownership and in the value of its shares held by that other party
contemplated by this Agreement by reason of its doing such matters but
not otherwise.
6. GENERAL
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6.1 Nothing in this Agreement shall create, or be deemed to create, any
partnership or the relationship of principal and agent or employer and
employee between the parties.
6.2 This Agreement sets out the entire agreement and understanding between
the parties in relation to the transactions hereby contemplated, and
supersedes all previous agreements, arrangements and understandings
between them with regard to such transactions and neither party is
entering into this Agreement or any of the arrangements contemplated
hereby in reliance upon any representation or warranty not expressly
set out in this Agreement.
6.3 No provision of this Agreement may be amended, modified, waived,
discharged or terminated otherwise than by the express written
agreement of the parties hereto nor may any breach of any provision of
this Agreement be waived or discharged except with the express written
consent of the party not in breach.
6.4 No failure or delay by either party in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise by either party of any right,
power or privilege preclude any further exercise thereof or the
exercise of any other right, power or privilege.
6.5 The rights and remedies of the parties herein provided are cumulative
and not exclusive of any rights and remedies provided by law.
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6.6 This Agreement shall be binding and enure to the benefit of each
party's successors and permitted assigns but, except as expressly
provided herein, neither party shall assign or transfer all or any of
its rights or obligations hereunder without the prior written consent
of the other party.
6.7 Each party shall be responsible for its own costs incurred in
connection with the negotiation, preparation, execution and carrying
into effect of this Agreement.
6.8 Time shall be of the essence of this Agreement, both as regards the
dates and periods specifically mentioned and as to any dates and
periods which may be substituted by agreement in writing between or on
behalf of the parties.
6.9 In the event that any provision of this Agreement is held to be
unenforceable, illegal or invalid by any court of competent
jurisdiction, the validity, legality or enforceability of the remaining
provisions shall not be affected nor shall any subsequent application
of such provisions be affected. In lieu of any such invalid, illegal or
unenforceable provision, the parties hereto intend that there shall be
added as part of this Agreement a provision as similar in terms to such
invalid, illegal or unenforceable provision as may be possible and be
valid, legal and enforceable.
6.10 This Agreement may be executed in any number of counterparts or
duplicates each of which shall be an original but such counterparts or
duplicates shall together constitute one and the same agreement.
6.11 Each of the parties hereto shall do, execute and perform all such
further deeds, documents, acts and things as the other party may
reasonably require to put into effect the transactions contemplated by
this Agreement.
6.12 All provisions of this Agreement shall so far as they are capable of
being performed and observed continue in full force and effect
notwithstanding completion except in respect of those matters then
already performed.
7. NOTICES
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7.1 Any notice required to be given under this Agreement shall be
sufficiently given if delivered personally or forwarded by
internationally recognized overnight couriers or sent by facsimile
transmission to the relevant party at its address or fax number set out
below (or such other address as the addressee has by five days prior
written notice specified to the other parties) :-
To CDK : 000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx
of America 11530
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Fax Number : (000) 000 0000
Attention : Xxxxxx X. XXXXXXXX
To APL : Xxxx Xx.0X, Xxxxxx Xxxxx
Xxxx 0, Xxxxxxx Garden,
Xxxx Xxx, Kowloon
Hong Kong
Fax Number : (000) 0000 0000
Attention : Xxxxx X.X. XXXX
7.2 Any notice delivered personally shall be deemed to have been served at
the time of delivery. Any notice sent by internationally recognized
overnight couriers shall be deemed to have been served 3 business days
after the time at which it was delivered to the courier, the tracking
receipt shall be sufficient to prove such service and notices sent by
facsimile transmission shall be deemed to have been served one business
day after transmission.
8. LAW AND JURISDICTION
--------------------
8.1 This Agreement shall be governed by and construed in all respects in
accordance with the laws of the state of New York in the United States
of America ("New York") and the parties hereby irrevocably submit to
the non-exclusive jurisdiction of the Courts of New York .
8.2 Each of the following parties hereby irrevocably appoints (subject to
substitution by way of written notice) the person set opposite its name
below as its agent to acknowledge and accept service of legal process
on behalf of such party :-
PARTIES NAMES & ADDRESSES OF AGENTS
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XXXXxx.Xxx, Inc. Xxxxxx X. XXXXXXXX
000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx Xxxx, Xxx Xxxx,
Xxxxxx Xxxxxx of America 11530
Asia Pioneer Limited Xxxxx X.X. XXXX
Shop No.3A, Ground Floor
Site 0, Xxxxxxx Xxxxxx,
Xxxx Xxx, Xxxxxxx
Xxxx Xxxx
Telephone : (000) 0000 0000
Fax : (000) 0000 0000
-15-
AS WITNESS the parties hereto have caused this Agreement to be executed the day
and year first above written in its counterpart as an Agreement.
-16-
SCHEDULE 1
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CDK
NAME : XXXXXX.XXX, INC.
PLACE OF INCORPORATION : the State of Delaware, U.S.A.
AUTHORIZED COMMON SHARE CAPITAL : US$4,000 divided into 40,000,000
shares of common stock of par value
US$0.0001 each
ISSUED COMMON SHARE CAPITAL : Approximately 17,000,000 common shares
REGISTERED ADDRESS : 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx
Xxxx, Xxx Xxxx 00000, U.S.A.
DIRECTORS : Xxxxxx X. XXXXXXXX
Xxxxxxx XXXXXX
Xxxxxx XXXXXXXX
-17-
SCHEDULE 2
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LIST OF CONTRACTS RELATING TO CLAUSE 4.2.13( A)
Name Document
---- --------
Xxxx Xxx XXXX Employment Agreement
Xxx XXXX Employment Agreement
-18-
EXECUTION PAGE
SIGNED by )
)
for and on behalf of XXXXXX.XXX, INC. in )
the presence of :-Xxxxx Xxxxxxx-Xxxxxx ) /s/ Xxxxxx X. Horiwitz
)--------------------------------
/s/ Xxxxx Xxxxxxx-Xxxxxx
------------------------
SIGNED by )
)
for and on behalf of ASIA PIONEER LIMITED ) /s/ illegible
in the presence of :- )--------------------------------
Authorized Signature(s)
/s/ illegible
--------------------------------
Authorized Signature(s)
/s/ Xxxxx X. Xxx
------------------------------
Xxxxx X. Xxx
Solicitor
Aggarwal & Associates
Hong Kong SAR
-19-
