Exhibit 10.5
THIS AGREEMENT is made the 6th day of December 2003
BETWEEN
YEW SAIR LAI (NRIC NO: 490717-10-5075) of Block X-0-00 - 00, Xxx Xxxxxxxxx,
Xxxxx Xxxxxxx Xxxxxxxx, 00000 Butterworth, Penang (hereinafter "the Vendor") of
the one part
AND
ASIACO MULTI CORPORATION SDN. BHD. (CO. NO. 632986-W), a company
incorporated in Malaysia under the Companies Act, 1965 with its registered
office at 00X Xxxxx Xxxxx 0, Xxxxx Bandar, Bandar Xxxxxxxx Xxxx, 00000 Xxxx,
Xxxxxx (hereinafter "the Purchaser") of the other part.
ARTICLE 1
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Recitals
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Section 1.01 The Company
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The Company incorporated in Malaysia better described in Schedule 1 hereto
(hereinafter "the Company").
Section 1.02 The said Shares
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The Vendor is the registered and beneficial owner of the said Shares in the
Company.
Section 1.03 Financial Position
-------------------------------
The financial position of the Company as at 31.8.2003 is as indicated in the
audited accounts as at 31.12.2002 and the unaudited accounts as at 31.8.2003 of
the Company as prepared and certified by the auditors of the Company and as
shown in SCHEDULE 2 hereto.
Section 1.04 Sale and Purchase of the said Shares
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The Vendor has agreed to sell and the Purchaser has agreed to purchase the said
Shares in the Company at the price upon the terms and subject to the conditions
hereinafter appearing.
ARTICLE II
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Definitions
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Section 2.01 Definitions
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(1) In this Agreement, unless the context requires otherwise, the words and
expressions set out in the first column hereto shall have the meaning
assigned thereto as set out in the second column hereto.
Words and Expressions Meaning
--------------------- -------
the Company A private Company limited
by shares incorporated in Malaysia
described in Schedule 1 hereto and
includes persons deriving title
thereunder, its successors in
title and assigns.
the Purchaser ASIACO MULTI CORPORATION SDN.
BHD., a private Company limited by
shares incorporated in Malaysia
and includes persons deriving
title thereunder, its successors
in title and assigns.
the said Shares The issued and paid-up
shares of Malaysian Ringgit One
(RM1.00) only each in the Company
(described in Schedule 1 hereto)
agreed to be transacted in this
Agreement.
the Vendor YEW SAIR LAIR ( NRIC No (NRIC NO:
490717-10-5075) of Block X-0-00 -
00, Xxx Xxxxxxxxx, Xxxxx Xxxxxxx
Xxxxxxxx, 00000 Butterworth,
Penang.
(2) Words importing the singular shall include the plural and vice versa.
(3) Words importing the masculine gender shall include the feminine and neuter
genders and vice versa.
ARTICLE III
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Representations and Warranties
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Section 3.01 Representations and Warranties
-------------------------------------------
The Vendor hereby represents, warrants and undertakes to the Purchaser that:
(a) none of the said Shares is subject to any charge, lien, encumbrance or
option ;
(b) except for the encumbrances created by the Company on its assets as
specified in the records of the Company which have been or are deemed
to have been inspected and will remain open for inspection by the
Purchaser pursuant to Section 4.06 hereof, the Company has not created
or permitted to exist any charge, mortgage, lien, caveat or any other
encumbrance over any of its assets;
(c) the certified copies of the Certificate of Incorporation, the
Memorandum and Articles Of Association and Forms 24 and 49 of the
Company delivered by the Vendor to the Purchaser are true, complete and
accurate;
(d) the Vendor will not prior to the completion of the purchase hereunder
except with the prior written consent of the Purchaser expose the
Company to any further liability nor take any action to bind the
Company;
(e) there is no litigation, material obligations or outstanding debts and
claims above Malaysian Ringgit One Thousand ( RM1,000.00 ) only from
the date of incorporation of the Company to the date hereof except
those claims, expenses and obligations outstanding as disclosed to the
Purchaser in Schedules 2 and 3 hereto.
ARTICLE IV
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Agreement to Sell and Purchase
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Section 4.01 Agreement to Sell and Purchase
-------------------------------------------
In consideration of the Purchaser forgiving the Vendor of a debt of Malaysian
Ringgit Six Million (RM6,000,000.00) owed by the Vendor to the Purchaser, the
Vendor hereby agrees to transfer the said Shares to the Purchaser.
Section 4.02 Delivery of Documents
----------------------------------
Upon the execution of this Agreement, the Vendor shall deliver to Messrs.
Nashir, Xxxxx & Co. (hereinafter "the Purchaser's Solicitor") the following
documents:
(a) The Share Certificates for all the said Shares.
(b) Blank share transfer forms duly executed by the Vendor.
(c) A certified copy of the Board Resolution of the Company passed in
accordance with the Articles of Association of the Company approving
the transfer of the said Shares from the Vendor to the Purchaser or
their nominee or nominees subject to the terms of this Agreement.
(d) A certified copy of the Board Resolution of the Company passed in
accordance with its Articles of Association appointing the Purchaser's
nominee or nominees as compulsory cheque signatories to all accounts
held by the Company at any financial institution.
(e) Cheque Books, secretarial and contractual documents of Company, Company
seal and rubber stamps.
(f) A Certified copy of the Board Resolution of the Company appointing the
persons named in Schedule 4 hereto to constitute the entire Board of
the Company.
(g) Forms 32A and 48A and the relevant Stamping Declarations all of which
have been duly completed.
Section 4.03 Additional Acts, Documents
---------------------------------------------
The Vendor and Purchaser hereby agree to do, execute and perform such further
acts, deed, documents and things as may be necessary to give effect to this
Agreement.
Section 4.04 Purchaser may inspect records
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Prior to the execution of this Agreement, the Purchaser or their appointed
auditor, subject to the prior appointment and at reasonable time or times during
working hours, may inspect the Company's books, record, documents agreement and
accounts as are relevant to the transaction contemplated herein for the purpose
of conducting a takeover audit of the Company.
ARTICLE V
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Indemnity
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Section 5 Indemnity
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In amplification and not in derogation of the foregoing provisions, the Vendor
and Purchaser hereby agree and undertake that the Vendor will keep the Purchaser
indemnified against all loss, damage or action which the Purchaser may suffer or
sustain as a result of liabilities and debts incurred by the Company which have
not been disclosed in the audited accounts of the Company under Section 1.03 and
detailed in Schedules 2 and 3 hereto.
ARTICLE VI
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Miscellaneous
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Section 6.01 Time of Essence
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Time wherever mentioned shall be of the essence of this Agreement
Section 6.02 Costs and Expenses
--------------------------------
Each party hereto shall bear their own solicitors' costs occasioned by the
preparation of this Agreement. All stamp duties and disbursements incurred in
respect of this Agreement and the transfer of shares in favour of the Purchaser
shall be borne and paid by the Purchaser.
Section 6.03 Notices
--------------------
Any notice required to be served pursuant to this Agreement by any party hereto
to the other shall be in writing and may be delivered or sent by registered post
to the last known address of the party to whom such notice is addressed and
shall be deemed to have been delivered and served at the time when it would have
been delivered in the ordinary course of post.
Section 6.04 Confidential Information
-------------------------------------
It is expressly understood and agreed by the parties hereto that all information
furnished by or obtained from any party hereto of the Company, whether prior to
the signing of this Agreement or during the term hereof, including, without
limitation, all information relating to the transactions conducted by the
Company, whether furnished or obtained in writing, orally or in physical
configuration, is to be held in strict confidence and shall not be disclosed to
any third party in any way any time during the term of this Agreement or
thereafter without the prior written consent therefore of the disclosing party.
Section 6.05 Waiver
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Any waiver by any party hereto of a breach of any term or condition in this
Agreement shall not constitute a waiver of subsequent breach of the same or any
other term or condition of this Agreement.
Section 6.06 Successors in Title and Assigns Bound
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This Agreement shall be binding upon the respective successors in title and
assigns of the Vendor and the Purchaser.
Section 6.07 Legality of Provisions
-----------------------------------
In the event any provision of this Agreement shall be found to be contrary to
law, such finding shall in no way affect any other provisions of this Agreement,
which shall continue in full force and effect as if such offending provision had
been deleted therefrom.
Section 6.08 Conditional Agreement
-----------------------------------
This Agreement is conditional upon the completion of a due diligence
satisfactory to the Purchaser.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and year
first abovewritten,
Signed by the Vendor )
YEW SAIR LAI )
in the presence of:- ) /s/ Yew Sair Lai
Signed by XXXXXXX SOON- )
XXXX LIM )
for and on behalf of the )
Purchaser, ASIACO MULTI )
CORPORATION SDN. BHD. )
in the presence of:- ) /s/ Xxxxxxx Soon-Xxxx Xxx
SCHEDULE 1
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THE COMPANY
Name : ASIACO TRANSPORT SDN. BHD.
(Company No. 490762-P)
Registered Office : 00X Xxxxx Xxxxx 0, Xxxxx Bandar, Bandar
Xxxxxxxx Xxxx, 00000
Xxxxxxxx Xxxx, Xxxx, Xxxxxx
Authorised Capital : Malaysian Ringgit Five Hundred
Thousand (RM500,000) only divided into five
hundred thousand (500,000) ordinary shares of
Malaysian Ringgit One (RM1.00) only
Paid-up Capital : Malaysian Ringgit One Hundred
Seventy Three Thousand and Two (RM173,002)
only comprised of one hundred seventy three
thousand and two (173,002) ordinary shares of
Malaysian Ringgit One (RM1.00) only each all
of which have been issued and fully paid up
or credited as fully paid-up.
The said Shares : Issued and paid-up shares registered in the
name of the Vendor
SCHEDULE 2
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ACCOUNTS
SCHEDULE 3
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OUTSTANDING LIABILITIES
SCHEDULE 4
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BOARD OF DIRECTORS OF THE COMPANY
