Exhibit 10.1
THIS AGREEMENT is dated the 21st day of March 2003
AMONG:
(1) WISE MEDIA GROUP INC., a company incorporated in Samoa and having its
registered office at Offshore Xxxxxxxx, P.O. Box 217, Apia, Samoa (the "1st
Vendor");
(2) CHINA MEDIA INC., a company incorporated in Samoa and having its registered
office at Offshore Xxxxxxxx, P.O. Box 217, Apia, Samoa (the "2nd Vendor");
(3) SINOWISE LIMITED, a company incorporated in Samoa and having its registered
office at Offshore Xxxxxxxx, P.O. Box 217, Apia, Samoa (the "3rd Vendor");
(4) WAN KIN MAN of Xxxx 0, Xxxxx X, 00xx Xxxxx, Xxx Xxxx Building, No.395
King's Road, Hong Kong (the "4th Vendor");
(5) WORLDCON ASSETS LIMITED, a company incorporated in the British Virgin
Island and having its registered office at P.O. Box 957, Offshore
Incorporation Centre, Road Town, Tortola, British Virgin Island (the "5th
Vendor");
(6) THE LINK GROUP INC., a company incorporated in the State of Colorado and
having its business address at 000 X. Xxxxxx Xx., Xxxxx 000, Xxxxxxxxx XX
X0X 0X0, Xxxxxx (the "Parent"); and
(7) ASIA GENIUS LIMITED, a Hong Kong corporation having its registered office
at Room 1102, 11th Floor, Xx.000 Xxxxxxxx Xxxx, Xxxxx Xxxxx, Xxxx Xxxx (the
"Purchaser").
WHEREAS:
(A) Wise Media Investments Limited (the "Company") was incorporated under
the laws of Samoa on 6th June 2002 as a private limited liability
company. Further information concerning the Company is set out in
Schedule 1.
(B) As at the date hereof, the sole asset of the Company is the
beneficial ownership of 9,999 shares of Media Creative representing
99.99% of issued share capital of Media Creative.
(C) The Purchaser is a wholly-owned subsidiary company of the Parent.
(D) The Vendors, the Parent and the Purchaser are entering into this Agreement
for the sale and purchase of the Sale Shares subject to and upon the terms
and conditions of this Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 In this Agreement (including the Recitals, Schedules and Exhibits),
unless the context otherwise requires, the following words and
expressions shall have the following meanings ascribed to each of
them below:
"Accounts" the unaudited balance
sheets of the Company as
at the Last Accounts
Date and the unaudited
profit and loss accounts
of the Company for the
period commencing from
6th June 2002 to the
Last Accounts Date;
"Business Day" a day (other than a
Saturday) on which banks
in Hong Kong are open
for business throughout
their normal business
hours;
"Company" Wise Media Investments
Limited;
"Completion" completion of the sale
and purchase of the
Sale Shares in
accordance with theterms
and conditions of this
Agreement;
"Completion Date" the date falling
on the third Business
Day after all the
conditions set out in
Clause 3.2 have been
fulfilled or waived,
whichever is the
earlier;
"Consideration Share" a share of the common
stock of US$0.001 par
value per share of the
Parent, forming part of
the Purchase
Consideration,and
reference to
"Consideration Shares"
shall be construed
accordingly;
"Deposit" the cash sum of US
$1,000,000 as referred
to in Clause 4.1(1)
forming part of the
Purchase Consideration;
"Encumbrance" any mortgage, charge,
pledge, lien, (otherwise
than arising by statute
or operation of law),
equities, hypothecation
or other encumbrance,
priority or security
interest, preemptive
right deferred purchase,
title retention,leasing,
sale-and-repurchase or
sale-and-leaseback
arrangement whatsoever
over or in any property,
assets or rights of
whatsoever nature and
includes any agreement
for any of the same and
reference to
"Encumbrances" shall be
construed accordingly;
"Hong Kong" the Hong Kong Special
Administrative Region
of the People's Republic
of China;
"Last Accounts Date" 28th February 2003;
"Media Creative" Media Creative Limited,
a company incorporated
under the laws of Hong
Kong;
"Purchase Consideration" the purchase
consideration for the
purchase of the Sale
Shares as stipulated in
Clause 4.1;
"Purchaser's Schedule of Exceptions"
the schedule containing
exceptions to the
representations and
warranties of the Parent
and/or the Purchaser
appearing in Schedule 2
Part IIA;
"Purchaser's Warranties"
the representations and
warranties set out in
Schedule 2 Part II and
any other
representations,
warranties and
undertakings made by or
on behalf of the
Purchaser in this
Agreement;
"Sale Shares" 100 Shares being
the aggregate of the 1st
Vendor's Shares, the 2nd
Vendor's Shares, the 3rd
Vendor's Shares, the 4th
Vendor's Shares and the
5th Vendor's Shares
representing the total
issued share capital of
the Company;
"Securities Act" US Securities Act of
1933, as amended;
"Shares" shares of US$1.00 each
in the share capital
of the Company and
reference to "Share"
shall be construed
accordingly;
"Taxation" all forms of taxation
including overseas
taxation and all forms
of profits tax, interest
tax, estate duty and
stamp duty and all
levies, imposts, duties,
charges, fees,deductions
and withholdings
whatsoever charged or
imposed by any
statutory, governmental
state, provincial, local
government or municipal
authority whatsoever and
the expression "Tax"
shall be construed
accordingly;
"this Agreement" this agreement for the
sale and purchase of the
Sale Shares, as amended
from time to time;
"this Guarantee" the guarantee made by
the Parent as set out in
Clause 9;
"Transfer Restrictions" transfer restrictions in
relation to the transfer
of 37,000,000
Consideration
Shares (as referred to
in Clause 4.1(2)) or any
part thereof arising
under the Securities
Act;
"US" United States of America;
"United States Dollars" or the United States dollars;
sign "US$"
"Valuation Report" a valuation report
prepared by a firm of
certified public
accountants or qualified
valuers indicating that
the fair market value of
the entire issued share
capital of Media
Creative as at a date
falling the period
between the date of this
Agreement and the
Completion Date shall
be of a value of not
less than US$4,000,000;
"Vendors" collectively the 1st
Vendor, the 2nd Vendor,
the 3rd Vendor, the 4th
Vendor and the 5th
Vendor;
"Vendors' Schedule of Exceptions" the schedule containing
exceptions to the
representations and
warranties of the
Vendors appearing in
Schedule 2 Part IA;
"1st Vendor's Shares" 50
Shares registered in the
name of and beneficially
owned by the 1st Vendor
representing 50% of the
total issued capital of
the Company;
"2nd Vendor's Shares" 10
Shares registered in the
name of and beneficially
owned by the 2nd Vendor
representing 10% of the
total issued capital of
the Company;
"3rd Vendor's Shares" 5
Shares registered in the
name of and beneficially
owned by the 3rd Vendor
representing 5% of the
total issued capital of
the Company;
"4th Vendor's Shares" 15
Shares registered in the
name of and beneficially
owned by the 4th Vendor
representing 15% of the
total issued capital of
the Company;
"5th Vendor's Shares" 20
Shares registered in the
name of and beneficially
owned by the 5th Vendor
representing 20% of the
total issued capital of
the Company; and
"Vendors' Warranties"
the representations and
warranties set out in
Schedule 2 Part I and
any other
representations,
warranties and
undertakings made by or
on behalf of the Vendors
in this Agreement.
1.2 The headings of this Agreement are inserted for convenience only and
shall be ignored in construing this Agreement. Unless the context
otherwise requires, references in this Agreement to the singular
shall be deemed to include references to the plural and vice versa;
references to one gender shall include all genders and references to
any person shall include an individual, firm, body corporate or
unincorporated.
1.3 References in this Agreement to Clauses, Schedules and Exhibits are
references to clauses of and schedules and exhibits to, this
Agreement and references to sub-clauses and paragraphs are unless
otherwise stated, references to sub-clauses and paragraphs of the
Clause, sub-clause or, as appropriate, the Schedule or the Exhibit in
which the reference appears.
1.4 Reference to any ordinance, regulation or other statutory provision
or Stock Exchange rules in this Agreement includes reference to such
ordinance, regulation, provision or rule as modified, consolidated or
re-enacted from time to time.
1.5 The Schedules and the Recitals shall form part of this Agreement.
2. SALE AND PURCHASE OF THE SALE SHARES
2.1 Subject to and upon the terms and conditions of this Agreement, the
Vendors shall sell and the Purchaser shall purchase the Sale Shares
with effect from Completion free from all Encumbrances together with
all rights now or hereafter attaching thereto including but not
limited to all dividends paid, declared or made in respect thereof on
or after the date of Completion.
2.2 The Purchaser shall not be obliged to purchase any of the Sale Shares
unless the purchase of all the Sale Shares is completed
simultaneously.
3. CONDITIONS
3.1
(1) The Purchaser shall and shall procure that his agents shall forthwith
upon the signing of this Agreement conduct such review of the assets,
liabilities, operations and affairs both of the Company and Media
Creative as it may reasonably consider appropriate and the Vendors
shall provide and procure the Company and/or Media Creative to provide
such assistance as the Purchaser or his agents may reasonably require
in connection with such review so as to enable the review to be
completed on or before 12:00 noon on the date falling 60 days from the
date of this Agreement or such later date as the Vendors and the
Purchaser may agree under Clause 3.3.
(2) The Vendors shall and shall procure that his agents shall forthwith
upon the signing of this Agreement conduct such review of the assets,
liabilities, operations and affairs of the Purchaser and the Parent as
it may reasonably consider appropriate and the Purchaser and the
Parent shall provide such assistance as the Vendors or their
respective agents may reasonably require in connection with such
review so as to enable the review to be completed on or before 12:00
noon on the date falling 60 days from the date of this Agreement or
such later date as the Vendors and the Purchaser may agree under
Clause 3.3.
3.2 Completion is conditional upon:
(1) the Purchaser being satisfied at its sole and absolute discretion with
the results of the due diligence review to be conducted under Clause
3.1(1);
(2) the Vendors being satisfied at their sole and absolute discretion with
the results of the due diligence review to be conducted under Clause
3.1(2);
(3) the Vendors' Warranties (save and except the Vendors' Schedule of
Exceptions) remaining true and accurate in all respect;
(4) the Purchaser's Warranties (save and except the Purchaser's Schedule
of Exceptions) remaining true and accurate in all respect;
(5) the Valuation Report having been delivered by the Vendors (or any of
them) to the Purchaser;
(6) the Vendors' Schedule of Exceptions having been delivered by the
Vendors in a form reasonably satisfactory to the Purchaser as
contemplated by Clause 7.10 of this Agreement and the Purchaser's
Schedule of Exceptions having been delivered by the Purchaser in a
form reasonably satisfactory to the Vendors as contemplated by Clause
8.10 of this Agreement; and
(7) the Vendors (or any of them) having delivered to the Purchaser a
consolidated audited financial statements for the Company prepared in
accordance with US Generally Accepted Accounting Principles for the
period from the date of its incorporation until the Last Accounts Date
and such financial statements shall be in a form suitable for filing
with the U.S. Securities and Exchange Commission as required by Form
8-K promulgated under the Securities Act.
3.3 If any of the conditions set out in Clause 3.2 has not been satisfied on or
before 12:00 noon on the date falling 60 days from the date of this
Agreement or such later date as the Purchaser and the Vendors may jointly
agree, this Agreement shall cease and terminate (save and except Clause 11
which shall continue to have full force and effect) and none of the parties
to this Agreement shall have any obligations and liabilities hereunder
against or towards one another save for any antecedent breaches of the
terms hereof.
4. CONSIDERATION
4.1 The aggregate purchase consideration for the sale and purchase of the Sale
Shares shall be:-
(1) the cash sum of US$1,000,000 (United States Dollars One Million)
("Deposit"); and
(2) 37,000,000 Consideration Shares.
4.2 The Purchase Consideration shall be payable as follows:-
(1) the payment of the Deposit is conditional upon the Valuation Report
having been delivered by the Vendors (or any of them) to the Purchaser
and the manner in which the Deposit shall be payable is governed by
the terms as set out in Clause 5; and
(2) the balance of the Purchase Consideration being 37,000,000
Consideration Shares shall be issued by the Parent to the Vendors on
Completion in the manner as provided in Clause 6.
5. DEPOSIT
5.1 Subject to Clause 4.2(1), the Deposit shall be paid by the Purchaser on a
date falling within 30 Business Days from the date of delivery of the
Valuation Report pursuant to Clause 4.2(1) or the Completion Date,
whichever date shall be earlier, on the following manner:-
(1) the Purchaser shall pay a sum of US$800,000, being 80% of the Deposit
to the 1st Vendor or any person or persons to whom the 1st Vendor may
direct; and
(2) the Purchaser shall pay a sum of US$200,000, being the remaining 20%
of the Deposit to the 5th Vendor or any person or persons to whom the
5th Vendor may direct.
5.2 Upon due and complete performance by the Purchaser of its obligations under
Clause 5.1(1) and (2), the Purchaser shall be deemed to have duly fulfilled
its payment obligation under Clause 4.1(1).
5.3 In the event that:
(1) if any of the conditions referred to in Clause 3.2 have not been
satisfied on or before 12:00 noon on the date falling 60 days from the
date of this Agreement or such later date as the Vendors and the
Purchaser may agree, the Vendors shall immediately return the Deposit
to the Purchaser;
(2) if all the conditions referred to in Clause 3.2 have been satisfied on
or before 12:00 noon on the date falling 60 days from the date of this
Agreement or such later date as the Vendors and the Purchaser may
agree, and Completion takes place in accordance with Clause 6, the
Vendors shall retain the Deposit and treat the same as part payment of
the Purchase Consideration;
(3) if all the conditions referred to in Clause 3.2 have been satisfied on
or before 12:00 noon on the date falling 60 days from the date of this
Agreement or such later date as the Vendors and the Purchaser may
agree, and Completion does not take place in accordance with Clause 6
otherwise than as a result of the sole default of the any of the
Vendors or solely the joint default of any of the Vendors, the Vendors
shall retain the Deposit as liquidated damages (but not as penalty)
and in full and final settlement of any liabilities of the Purchaser
towards the Vendors and whereupon the Vendors shall not take any
action to claim for damages or to enforce specific performance or any
other rights and remedies; or
(4) if all the conditions referred to in Clause 3.2 have been satisfied on
or before 12:00 noon on the date falling 60 days from the date of this
Agreement or such later date as the Vendors and the Purchaser may
agree, and Completion does not take place in accordance with Clause 6
as a result of the sole default of any of the Vendors or solely the
joint default of any of the Vendors, the Vendors shall immediately
return the Deposit to the Purchaser.
6. COMPLETION
6.1 Upon compliance with or fulfillment or waiver of all the conditions
set out in Clause 3.2, completion of the sale and purchase of the
Sale Shares shall take place at the office of the 1st Vendor on
Completion Date at or before 3:00 p.m. or at such other place and
time as both the Vendors and the Purchaser may jointly agree when all
the acts and requirements set out in this Clause 6 shall be complied
with.
6.2 The Vendors shall deliver or procure the delivery to the Purchaser or
to its order of all the following:
(1) instruments of transfer in respect of the transfer of the Sale Shares
duly executed by the registered holder thereof in favour of the
Purchaser or its nominee(s) as the Purchaser may direct, and such
other documents as may be
required to give a good and effective transfer of title to the Sale Shares
to the Purchaser or such nominee(s) and to enable the Purchaser or such
nominee(s) to become the registered and beneficial holder thereof free from
all Encumbrances;
(2)
(i) all statutory records and minute books (which shall be written up to date
as at Completion) and other statutory records of the Company;
(ii) the common seal and all rubber stamps, cheque books, cheque stubs and bank
statements, receipt books, all current insurance policies, books and
accounts and title deeds and evidence of ownership to all assets and all
current contracts and all other accounting records of the Company; and
(iii)all correspondence and other documents belonging to the Company (including
its constitutional documents) or written authorities in favour of the
Purchaser for the collection of such documents;
(3) where directed by the Purchaser, the written resignations
of all directors and company secretary of the Company
together with a written acknowledgement under seal from
each of them respectively in such form as the Purchaser
shall require that he has no claims against the Company
whether by way of compensation, remuneration, severance
payments, expenses, damages or otherwise;
(4) copy, certified as true and complete by a director of the
Company, of resolution of the board of directors approving
the matter referred to in Clause 6.3.
6.3 The Vendors shall procure a meeting of the board of directors of the
Company at which such matters shall be dealt with and resolved upon
as the Purchaser shall require for the purposes of giving effect to
the provisions of this Agreement including without limitation, (1)
the acceptance of the resignation of the directors of the Company as
provided under Clause 6.2(3) above; (2) the appointment of such
persons nominated by the Purchaser as directors and secretary of the
Company with effect from the date of Completion; and (3) the
amendment of the signatories and bank mandates for all accounts
maintained by the Company with banks and financial institutions in
such manner as the Purchaser may require.
6.4 Against compliance and fulfillment of all acts and the requirements set out
in Clauses 6.2 and 6.3, the Parent shall and the Purchaser shall procure
that the Parent shall forthwith:
(1) deliver to the 1st Vendor or its nominee(s) as the 1st Vendor may
direct the original share certificates for 18,500,000 Consideration
Shares free from all Encumbrances other than the Transfer Restrictions
with the name of the 1st Vendor or such nominee(s) registered as the
beneficial holder(s) thereof, and such other documents as may be
required to give a good and effective transfer of title to 18,500,000
Consideration Shares to the 1st Vendor or such nominee(s) and to
enable the 1st Vendor or such nominee(s) to become the registered and
beneficial holder thereof free of all Encumbrances other than the
Transfer Restrictions;
(2) deliver to the 2nd Vendor or its nominee(s) as the 2nd Vendor may
direct the original share certificates for 3,700,000 Consideration
Shares free from all Encumbrances other than the Transfer Restrictions
with the name of the 2nd Vendor or such nominee(s) registered as the
beneficial holder(s) thereof, and such other documents as may be
required to give a good and effective transfer of title to 3,700,000
Consideration Shares to the 2nd Vendor or such nominee(s) and to
enable the 2nd Vendor or such nominee(s) to become the registered and
beneficial holder thereof free of all Encumbrances other than the
Transfer Restrictions;
(3) deliver to the 3rd Vendor or its nominee(s) as the 3rd Vendor may
direct the original share certificates for 1,850,000 Consideration
Shares free from all Encumbrances other than the Transfer Restrictions
with the name of the 3rd Vendor or such nominee(s) registered as the
beneficial holder(s) thereof, and such other documents as may be
required to give a good and effective transfer of title to 1,850,000
Consideration Shares to the 3rd Vendor or such nominee(s) and to
enable the 3rd Vendor or such nominee(s) to become the registered and
beneficial holder thereof free of all Encumbrances other than the
Transfer Restrictions;
(4) deliver to the 4th Vendor or its nominee(s) as the 4th Vendor may
direct the original share certificates for 5,550,000 Consideration
Shares free from all Encumbrances other than the Transfer Restrictions
with the name of the 4th
Vendor or such nominee(s) registered as the beneficial holder(s)
thereof, and such other documents as may be required to give a
good and effective transfer of title to 5,550,000 Consideration
Shares to the 4th Vendor or such nominee(s) and to enable the 4th
Vendor or such nominee(s) to become the registered and beneficial
holder thereof free of all Encumbrances other than the Transfer
Restrictions;
(5) deliver to the 5th Vendor or its nominee(s) as the 5th Vendor may
direct the original share certificates for 7,400,000 Consideration
Shares free from all Encumbrances other than the Transfer Restrictions
with the name of the 5th Vendor or such nominee(s) registered as the
beneficial holder(s) thereof, and such other documents as may be
required to give a good and effective transfer of title to 7,400,000
Consideration Shares to the 5th Vendor or such nominee(s) and to
enable the 5th Vendor or such nominee(s) to become the registered and
beneficial holder thereof free of all Encumbrances other than the
Transfer Restrictions; and (6) deliver to the Vendors a copy,
certified true and complete by an authorized officer of the Parent, of
resolutions of the board of directors of the Parent approving this
Agreement and all other transactions contemplated under this
Agreement.
6.5 Against compliance and fulfillment of all acts and the requirements set out
in Clauses 6.2 and 6.3, the Purchaser shall forthwith:-
(1) produce to the Vendors instrument of transfer and bought and sold
notes in respect of the Sale Shares duly executed by the Purchaser or
its nominees; and
(2) deliver to the Vendors a copy, certified true and complete by an
authorized officer of the Purchaser, of resolutions of the board of
directors of the Purchaser approving this Agreement and all other
transactions contemplated under this Agreement.
6.6 Upon due and complete performance by the Parent of its obligations under
Clause 6.4(1), (2), (3), (4) and (5), the Purchaser shall be deemed to have
duly fulfilled its payment obligation under Clause 4.1(2).
6.7 The parties hereto acknowledge that each of the original share certificates
as referred to in Clause 6.4(1), (2), (3), (4) and (5) respectively shall
contain one or more legends with reference being made to the Securities Act
(as well as any other legends required by the laws of any applicable
jurisdiction) whereby such reference shall contain wordings which are
substantially similar to the following:-
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND MAY NOT BE TRANSFERRED
UNLESS A REGISTRATION STATEMENT COVERING THE SECURITIES IS FILED AND
EFFECTIVE OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT IS AVAILABLE."
7. VENDORS' WARRANTIES
7.1 Each of the Vendors jointly and severally warrant to the Purchaser that the
Vendors' Warranties set out in Schedule 2 Part I are true and accurate in
all material respects as at the date hereof and will continue to be so up
to and including the time of Completion and the Vendors hereby further
acknowledge that the Purchaser in entering into this Agreement is relying
on the Vendors' Warranties. For the avoidance of doubt, the Vendors make no
warranty in respect of all matters, documents and/or information disclosed
to the Purchaser or its agents as exceptions from the Vendors' Warranties
as set out in the Vendors' Schedule of Exceptions and the Purchaser hereby
confirm and agree that it has no right to make any claim or demand in
respect of all such matters, documents and/or information.
7.2 Each of the Vendors' Warranties is without prejudice to any other warranty
or undertaking and, except where expressly stated, no clause contained in
this Agreement governs or limits the extent or application of any other
clause.
7.3 The rights and remedies of the Purchaser in respect of any breach of the
Vendors' Warranties shall not be affected by completion of the sale and
purchase of the Sale Shares, by any investigation made by or on behalf of
the Purchaser into the affairs of the Company, by any failure to exercise
or delay in exercising any right or remedy or by any other event or matter
whatsoever, except a specific and duly authorized written waiver or
release.
7.4 The Vendors hereby undertakes jointly and severally to indemnify and keep
indemnified the Purchaser against any losses, liabilities, damages, costs
and expenses suffered by the Purchaser as a result of or in connection with
any breach of any of the Vendors' Warranties provided that the indemnity
contained in this Clause shall be without prejudice to any other rights and
remedies of the Purchaser in relation to any such breach of the Vendors'
Warranties and all such other rights and remedies are hereby expressly
reserved to the Purchaser.
7.5 (1) Any claim by the Purchaser in connection with the Vendors' Warranties
("Vendors' Warranty Claim") shall not be made unless the amount of the
damages in respect of such Vendors' Warranty Claim exceed in aggregate the
sum of US$50,000 but if the liabilities exceed that sum the Vendors shall
(subject to other provisions hereof) be liable for the whole of such
liability and not merely the excess.
(2) No liability shall be attached to the Vendors in respect of any single
Vendors' Warranty Claim unless the amount of such Vendors' Warranty
Claim shall exceed US$50,000.
7.6 The Purchaser shall not be entitled to make any Vendor's Warranty Claim
(1) to the extent that provision for the matter or liability which would
otherwise give rise to the claim in question has been made in the
Accounts or has otherwise specifically been taken account of in the
Accounts;
(2) if the claim would not have arisen but for a change in legislation
made after the date of Completion; and
(3) to the extent that the relevant matters, documents or information have
been disclosed to the Purchaser or its agent in the Vendors' Schedule
of Exceptions.
7.7 Where any of the Vendors' Warranties are qualified as being "to the best of
the information, knowledge and belief of the Vendors" or "so far as the
Vendors are aware" or by any other similar expression, such Vendor's
Warranty is deemed to have been made or given to the best of knowledge,
information and belief of the Vendors after making due and careful enquiry.
7.8 The maximum aggregate liability of the Vendors in respect of all Vendor's
Warranty Claims shall not exceed the Purchase Consideration. The Vendors'
Warranties shall survive Completion but no Vendor's Warranty Claims may be
brought against the Vendors in respect of any breach of Vendor's Warranties
unless written notice of such Vendor's Warranty Claim specifying the
particulars of such claim has been received by the Vendors on or before the
expiration of six (6) months from the date of execution of this Agreement.
7.9 The Vendors shall not be liable for breach of any Vendor's Warranties by
reason of any act done by or omission or default of the Purchaser or the
Parent occurring after the execution of this Agreement.
7.10 The Purchaser acknowledges that the Vendors have not yet delivered the
Vendors' Schedule of Exceptions to the Purchaser or its agent as
contemplated by this Clause 7. The Vendors shall deliver the Vendors'
Schedule of Exceptions to the Purchaser at least 10 days prior to
Completion. The Purchaser shall have the opportunity during such 10 day
period to review and comment on the Vendors' Schedule of Exceptions and the
parties to this Agreement shall use their best efforts to resolve any
concerns or comments that the Purchaser may have with the Vendors' Schedule
of Exceptions.
8. PURCHASER'S WARRANTIES
8.1 Both the Parent and Purchaser jointly and severally warrant to the Vendors
that the Purchaser's Warranties set out in Schedule 2 Part II are true and
accurate in all material respects as at the date hereof and will continue
to be so up to and including the time of Completion and the Parent and the
Purchaser hereby further acknowledges that the Vendors in entering into
this Agreement is relying on the Purchaser's Warranties. For the avoidance
of doubt, the Parent and the Purchaser makes no warranty in respect of all
matters, documents and/or information disclosed to the Vendors or its
agents as exceptions to the Purchaser's Warranties as set out in the
Purchaser's Schedule of Exceptions and the Vendors hereby confirm and agree
that it has no right to make any claim or demand in respect of all such
matters, documents and/or information.
8.2 Each of the Purchaser's Warranties is without prejudice to any other
warranty or undertaking and, except where expressly stated, no clause
contained in this Agreement governs or limits the extent or application of
any other clause.
8.3 The rights and remedies of the Vendors in respect of any breach of the
Purchaser's Warranties shall not be affected by completion of the sale and
purchase of the Sale Shares, by any investigation made by or on behalf of
the Vendors into the affairs of the Company, by any failure to exercise or
delay in exercising any right or remedy or by any other event or matter
whatsoever, except a specific and duly authorised written waiver or
release.
8.4 The Parent and the Purchaser hereby jointly and severally undertake to
indemnify and keep indemnified the Vendors against any losses, liabilities,
damages, costs and expenses suffered by the Vendors as a result of or in
connection with any breach of any of the Purchaser's Warranties provided
that the indemnity contained in this Clause shall be without prejudice to
any other rights and remedies of the Vendors in relation to any such breach
of the Purchaser's Warranties and all such other rights and remedies are
hereby expressly reserved to the Vendors.
8.5 (1) Any claim by the Vendors in connection with the Purchaser's Warranties
(a "Purchaser's Warranty Claim") shall not be made unless the amount of the
damages in respect of such Purchaser's Warranty Claim exceeds in aggregate
the sum of US$50,000 but if the liabilities exceed that sum the Purchaser
shall (subject to other provisions hereof) be liable for the whole of such
liability and not merely the excess.
(2) No liability shall be attached to the Purchaser in respect of any
single Purchaser's Warranty Claim unless the amount of such
Purchaser's Warranty Claim shall exceed US$50,000.
8.6 The Vendors shall not be entitled to make any Purchaser's Warranty Claim
(1) if the claim would not have arisen but for a change in legislation
made after the date of Completion; and
(2) to the extent that the relevant matters, documents or information have
been disclosed to the Purchaser or its agent in the Vendors' Schedule
of Exceptions.
8.7 Where any of the Purchaser's Warranties are qualified as being "to the best
of the information, knowledge and belief of the Parent and/or the
Purchaser" or "so far as the Parent and/or the Purchaser is aware" or by
any other similar expression, such
Purchaser's Warranty is deemed to have been made or given to the best of
knowledge, information and belief of the Parent and/or the Purchaser after
making due and careful enquiry.
8.8 The maximum aggregate liability of the Parent and/or the Purchaser in
respect of all Purchaser's Warranty Claims shall not exceed the Purchase
Consideration. The Purchaser's Warranties shall survive Completion but no
Purchaser's Warranty Claims may be brought against the Parent and/or the
Purchaser in respect of any breach of Purchaser's Warranties unless written
notice of such Purchaser's Warranty Claim specifying the particulars of
such claim has been received by the Parent and/or the Purchaser on or
before the expiration of six (6) months from the date of execution of this
Agreement.
8.9 The Parent and/or the Purchaser shall not be liable for breach of any
Purchaser's Warranties by reason of any act done by or omission or default
of any of the Vendors occurring after the execution of this Agreement.
8.10 The Vendors acknowledge that the Parent and/or the Purchaser has not yet
delivered the Purchaser's Schedule of Exceptions to the Vendors as
contemplated by this Clause 8. The Parent and/or the Purchaser shall
deliver the Purchaser's Schedule of Exceptions at least 10 days prior to
Completion. The Vendors shall have the opportunity during such 10 day
period to review and comment on the Purchaser's Schedule of Exceptions and
the parties to this Agreement shall use their best efforts to resolve any
concerns or comments that the Vendors may have with the Purchaser's
Schedule of Exceptions.
9. GUARANTEE BY PARENT
9.1 In consideration of the Vendors entering into this Agreement, the Parent
hereby unconditionally and irrevocably guarantees to the 1st Vendor, the
2nd Vendor, the 3rd Vendor, the 4th Vendor and the 5th Vendor as a
principal obligor and not merely as a surety, full due punctual and
complete performance by the Purchaser of all its obligations under or
arising out of or in connection with this Agreement and undertakes to the
Vendors that if and whenever the Purchaser is in default, the Parent will
duly and immediately perform such obligations and indemnify and keep
indemnified the Vendors against all losses, damages, costs and expenses of
whatsoever nature which may be suffered or incurred by the Vendors or any
of them by reason of any default or delay on the part of the Purchaser in
the performance of the said obligations
immediately upon receipt of the demand in writing by any of the Vendors.
9.2 The Parent hereby irrevocably waives any right to require that the Vendors
brings proceedings first against the Purchaser.
9.3 The obligations of the Parent hereunder shall continue notwithstanding
Completion and this Clause shall remain in force until all obligations of
the Purchaser hereby guaranteed have been discharged in full. This
Guarantee is in addition to and shall not prejudice or be prejudiced by any
other guarantee, indemnity or other security or right against any third
party which the Vendors or any of them may have for the due performance of
the obligations concerned. This Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any sum which has
become payable to the Vendors or any of them hereunder and has been paid,
has to be returned by the Vendors or any of them upon the bankruptcy,
liquidation or organization of the Purchaser or otherwise.
9.4 The Parent shall not be exonerated or discharged nor shall its liability be
affected by any forbearance, whether as to payment, time, performance or by
any variation of this Agreement.
10. FURTHER ASSURANCE
10.1 The Vendors shall execute, do and perform or procure to be executed, done
and performed by other necessary parties all such further acts, agreements,
assignments, assurances, deeds and documents as the Purchaser may require
effectively to vest the registered and beneficial ownership of the Sale
Shares in the Purchaser free from all Encumbrances and with all rights now
and hereafter attaching thereto.
10.2 Both the Parent and the Purchaser jointly and severally covenant that each
of them shall execute and perform such further documents and acts as the
1st Vendor, the 2nd Vendor, the 3rd Vendor, the 4th Vendor or the 5th
Vendor may reasonably require effectively to vest the beneficial and
registered ownership of (1) 18,500,000 Consideration Shares in the 1st
Vendor or its nominee(s), (2) 3,700,000 Consideration Shares in the 2nd
Vendor or its nominee(s), (3) 1,850,000 Consideration Shares in the 3rd
Vendor or its nominee(s), (4) 5,550,000 Consideration Shares in the 4th
Vendor or its nominee(s) and (5) 7,400,000 Consideration Shares in the 5th
Vendor or its nominee(s) as respectively referred to in Clause 6.4, all of
which free from all Encumbrances (other than the Transfer Restrictions) and
with all rights now and
hereafter attaching thereto.
11. CONFIDENTIALITY AND ANNOUNCEMENTS
11.1 The Purchaser will, and will cause its associates and advisers to, treat in
confidence all non-public information regarding the Company contained in
written documents and materials ("Confidential Material") which they may
obtain from the Company or Media Creative and in the event that Completion
is not effected and this Agreement is rescinded or otherwise terminated,
will return such Confidential Material to the Company or Media Creative.
The Purchaser may disclose Confidential Information if, and only to the
extent required by applicable law or exchange or automatic quotation system
rules.
11.2 No public announcement or communication of any kind shall be made in
respect of the subject matter of this Agreement unless an announcement is
required pursuant to any applicable law or the requirements of any
recognised stock exchange or automatic quotation system.
12. NOTICES
12.1 Any notice consent and the like required or permitted to be given or served
under this Agreement may be given or served by facsimile or by leaving the
same with or sending the same by registered post to the party to or on
which the same is to be given or served at the address specified opposite
the name of that party or at such other address as that party shall specify
by written notice given to the other party as provided in this Clause:-
If to the 1st Vendor:
--------------------
Address: M18, 28/F., Xxxxxxxxx Xxxxx, Xx.00 Xxxxxxx Xxxxxx, Xxxxxxxx Xxx,
Xxxx Xxxx
If to the 2nd Vendor:
--------------------
Address: Xxxx 000, 0xx Xxxxx, Xxxx Xxxxx Xxxxxx, Xx.00 Granville Road,
Tsimshatsui, Kowloon, Hong Kong
If to the 3rd Vendor:
--------------------
Address: Xxxx 000, 0xx Xxxxx, Xxxx Xxxxx Xxxxxx, Xx.00 Granville Road,
Tsimshatsui, Kowloon, Hong Kong
If to the 4th Vendor:
--------------------
Address: Xxxx 0, Xxxxx X, 00xx Xxxxx, Xxx Xxxx Building, No.395 King's
Road, Hong Kong.
If to the 5th Vendor:
--------------------
Address: Xxxx 000, 0xx Xxxxx, Xxx Xxxx Xxxx Buildng, Xxx.000-000 Xxx Xxxxx
Xxxx, Xxxxxxx, Xxxx Xxxx
If to the Purchaser or the Parent:
---------------------------------
Address: Room 1102, 11th Floor, Xx.000 Xxxxxxxx Xxxx, Xxxxx Xxxxx, Xxxx
Xxxx.
12.2 All communications shall be served by the following means and the addressee
of a communication shall be deemed to have received the same within the
time stated adjacent to the relevant means of despatch:
Means of despatch Time of deemed receipt
Local mail or courier 24 hours
Facsimile on despatch
Air courier/Speedpost 3 days
Airmail 5 days
13. SEVERABILITY
13.1 If any part of this Agreement becomes invalid, illegal or unenforceable the
parties hereto shall in such an event negotiate in good faith in order to
agree the terms of a mutually satisfactory provision to be substituted for
the invalid, illegal or unenforceable provision which as nearly as possible
validly gives effect to their intentions as expressed herein.
13.2 If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(1) the validity or enforceability in that jurisdiction of any other
provision of this Agreement; or
(2) the validity or enforceability in other jurisdictions of that or any
other provision of this Agreement.
14. CAPACITY
Each party to this Agreement hereby warrants to the other such party
that it has full capacity to enter into this Agreement and that such entry does
not in any way violate any provision of law, statute, rule, regulation,
judgement, writ, injunction, decree or order applicable to it; that this
Agreement does not conflict and will not result in the breach or termination of
any provision of, or constitute a default under any mortgage, contract or other
undertaking binding on it; and will not result in the creation of any liability,
charge or Encumbrance whatsoever upon any of its properties or other assets save
as contemplated herein.
15. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the
parties with respect to the subject matter hereof and supersedes all prior
agreements, negotiations (whether written or otherwise) and discussions between
the parties relating thereto.
16. AMENDMENTS
Save as expressly provided herein, no amendment or variation of this
Agreement shall be effective unless in writing and signed by the 1st Vendor, the
2nd Vendor, the 3rd Vendor, the 4th Vendor, the 5th Vendor, a duly authorised
representative of each of the Parent and the Purchaser.
17. WAIVER
The failure or delay of a party hereto to exercise or enforce any
right, power, privilege or remedy whatsoever, howsoever or otherwise conferred
upon it by this Agreement shall not be deemed to be a waiver of any such right
or operate so as to bar the exercise or enforcement thereof at any time or times
thereafter, nor shall any single or partial exercise of any such right, power,
privilege or remedy preclude any other or further exercise thereof or the
exercise of any other right or remedy. No waiver shall be effective unless it is
in writing. The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies provided by law.
18. COUNTERPARTS
This Agreement may, be signed in any number of counterparts, all of
which taken together shall constitute one and the same Agreement. Any party may
enter into this Agreement by signing any such counterpart.
19. ASSIGNMENT
This Agreement shall not be capable of being assigned by any party
without the written consent of the other parties.
20. TIME OF THE ESSENCE
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, by agreement in writing between the parties hereto, be substituted
therefor.
21. COSTS
The Parent shall bear all costs and expenses incurred in connection
with this Agreement and all documents incidental or relating to Completion.
22. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of Colorado in US.
23. JURISDICTION
23.1 Each of the parties to this Agreement submits to the jurisdiction of
any state or federal court sitting in the State of Colorado in US, in
any action or proceeding arising out of or relating to this Agreement
and agrees that all claims in respect of the action or proceeding may
be heard and determined in any such court. Each of the parties to
this Agreement waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waives any
bond, surety, or other security that might be required of any other
party with respect thereto.
23.2 The submission to the jurisdiction of the court referred to Clause
23.1 shall not (and shall not be construed so as to) limit the right
of the parties to this Agreement to take proceedings in any other
court of competent jurisdiction (including Hong Kong) nor shall the
taking of proceedings in any one or more jurisdictions preclude the
taking of proceedings in any other jurisdiction, whether concurrently
or not.
IN WITNESS whereof the parties have executed this Agreement the day
and year first before written.
THE 1ST VENDOR
SIGNED by XXXX XXX XXXXXXX, its )
director for and on behalf of WISE )
MEDIA GROUP INC. in the presence )
of: )
THE 2ND VENDOR
SIGNED by XXXX XXXX LUN, its )
director for and on behalf of CHINA )
MEDIA INC. in the presence of:- )
THE 3RD VENDOR
SIGNED by XXXX XXX OIL, its )
director for and on behalf of SINOWISE )
LIMITED in the presence of:- )
THE 4TH VENDOR
SIGNED by WAN KIN MAN (holder )
of Hong Kong Identity Card )
No.X000000(0)) in the presence of:- )
THE 5TH VENDOR
SIGNED by XXXX XX XXXX XXXXX )
ANASTASIA for and on behalf of )
WORLDCON ASSETS LIMITED in the )
presence of:- )
THE PARENT
SEALED with the Common Seal of )
the Parent and SIGNED by KWEI CHI )
PING XXXXXX, its director in the )
presence of:- )
THE PURCHASER
SIGNED by XXX XXXX XXXXX )
XXXXXX, its director for and on behalf )
of ASIA GENIUS LIMITED in the )
presence of:- )
SCHEDULE 1
THE COMPANY
Part 1 - The Company
Name : Wise Media Investments Limited
Place of Incorporation : Samoa
Registered Office: : Xxxxxxxx Xxxxxxxx, X.X. Xxx 000, Xxxx, Samoa
Director : Xxxx Xxx Whitney
Authorised Share Capital : US$1,000,000.00
Issued Share Capital : US$1,000,000.00 divided into 1,000,000
shares of US$1.00 each.
Shareholders :
(1) Wise Media Group Inc. holding 50% of the issued share capital of the
Company;
(2) China Media Inc. holding 10% of the issued share capital of the
Company;
(3) Sinowise Limited holding 5% of the issued share capital of the Company;
(4) Wan Kin Man holding 15% of the issued share capital of the Company; and
(5) Worldcon Assets Limited holding 20% of the issued share capital of the
Company.
SCHEDULE 2
PART I
VENDORS' WARRANTIES
REPRESENTATIONS AND WARRANTIES REGARDING THE VENDORS
1. Authorization of Transaction. Each of the 1st Vendor, the 2nd Vendor, the 3rd
Vendor, the 4th Vendor and the 5th Vendor has full power and authority to
execute and deliver this Agreement and to perform its respective obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of each of the Vendors, enforceable in accordance with its terms and conditions.
2. Noncontravention. Neither the execution and the delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, will violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any governmental authority to which
either the 1st Vendor, the 2nd Vendor, the 3rd Vendor, the 4th Vendor or the 5th
Vendor is subject.
3. Brokers' Fees. None of the Vendors has any liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Purchaser or the
Parent could become liable or obligated.
4. Company Shares. The 1st Vendor owns beneficially and of record the 1st
Vendor's Shares, the 2nd Vendor owns beneficially and of record the 2nd Vendor's
Shares, the 3rd Vendor owns beneficially and of record the 3rd Vendor's Shares,
the 4th Vendor owns beneficially and of record the 4th Vendor's Shares and the
5th Vendor owns beneficially and of record the 5th Vendor's Shares, free and
clear of any Encumbrances, Taxes, options, warrants, purchase rights, contracts,
commitments, equities, claims, and demands.
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY AND MEDIA CREATIVE
5. Organization and Corporate Matters. The Company has been duly incorporated
and is validly existing under the laws of Samoa and is not in receivership or
liquidation, and that it has taken no steps to enter into liquidation and no
petition has been presented for winding up the
Company. The copies of the Memorandum and Articles of Association of the Company
which have been produced to the Purchaser are accurate and complete in all
material respects. So far as the Vendors are aware, the Company has complied
with its Memorandum and Articles of Association in all material respects and
none of the activities, agreements, commitments or rights of the Company is
ultra xxxxx or unauthorised. The statutory books and minute books of the Company
has not received any application or request for rectification of the register of
members. So far as the Vendors are aware, the business of Media Creative is not
in contravention of any laws, rules and regulations of Hong Kong.
6. Capitalization. The total issued share capital of the Company consists of 100
ordinary shares. All of the issued ordinary shares of the Company have been duly
authorized, are validly issued, fully paid and are held of record respectively
by the 1st Vendor, the 2nd Vendor, the 3rd Vendor, the 4th Vendor and the 5th
Vendor. There are no outstanding or authorized options, warrants, preemptive
rights, purchase rights, subscription rights, conversion rights, exchange
rights, or other contracts or commitments that could require the Company to
issue shares in its authorized share capital. There are no voting trusts,
proxies, or other agreements or understandings with respect to the voting rights
in the Company. The Company is the registered and beneficial holder of 9,999
shares in the issued share capital of Media Creative whereas the 1st Vendor is
the registered and beneficial holder of 1 share in the remaining issued share
capital of Media Creative.
7. Company and Media Creative Noncontravention. Neither the execution and the
delivery of this Agreement and the documents referenced herein, nor the
consummation of the transactions contemplated hereby, will violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any governmental authority to which the
Company or Media Creative is subject or any provision of the Company's or Media
Creative's constituent instruments.
8. No Company or Media Creative Brokers' Fees. The Company has no liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
9. Title to Assets. The Company has good and marketable title to, or a valid
leasehold interest in, the properties and assets used by it, located on its
premises, or shown on the Accounts or acquired after the date thereof.
10. Subsidiaries. Other than Media Creative, the Company does not control or
have any equity participation in any other entity.
11. Accounts. The Accounts have been prepared using Hong Kong generally accepted
accounting principles based upon the books and records of the Company applied on
a consistent basis throughout the periods covered thereby, present fairly the
financial condition of the Company as of such dates on a consolidated basis and
the results of operations of the Company and Media Creative for such periods,
are consistent with the books and records of the Company (which books and
records are correct and complete).
12. Events Subsequent to Last Accounts Date. Since the Last Accounts Date, there
has not been any adverse change in the business, financial condition,
operations, results of operations, or future prospects of the Company. Without
limiting the generality of the foregoing, since that date:
(i) the Company has not sold, leased, transferred, or assigned any of
their respective assets, tangible or intangible, other than for a
fair consideration in the ordinary course of business;
(ii) the Company has not entered into any agreement, contract, lease,
pricing arrangement or license (or series of related agreements,
contracts, leases, arrangements and licenses) either involving
more than US$50,000 or outside the ordinary course of business;
(iii) the Company has not imposed or permitted any Encumbrance
upon any of its assets, tangible or intangible;
(iv) the Company has not made any capital expenditure (or series of
related capital expenditures) either involving more than US$50,000
or outside the ordinary course of business;
(v) the Company has not cancelled, compromised, waived, or released
any right or claim (or series of related rights and claims) either
involving more than US$50,000 or outside the ordinary course of
business;
(vi) there has been no change made or authorized in the constituent
instruments of the Company;
(vii) the Company has not made any loan to any of its directors,
officers, employees or shareholders outside the ordinary course
of business; and
(viii) the Company has not entered into any employment contract, written
or oral, or modified the terms of any existing such contract.
13. Undisclosed Liabilities. The Company has no material liability (whether
accrued or unaccrued, contingent or not contingent, known or unknown), except
for (i) liabilities set forth in the Accounts and (ii) labilities which have
arisen after the Last Accounts Date in the ordinary course of business (none of
which results from, arises out of, relates to, is in the nature of, or was
caused by any breach of contract, breach of warranty, tort, infringement, or
violation of law).
14. Legal Compliance. The Company has complied with all applicable laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of all governmental authorities, and
no action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against the Company alleging any
failure so to comply.
15. Tax Matters. The Accounts contain appropriate provision for Taxation,
including deferred or provisional Taxation liable to be assessed on the Company
for the accounting period ended on the Last Accounts Date or for any subsequent
period (on the basis of the rates of tax and taxation statutes in force at the
Last Accounts Date) in respect of any transaction, event or omission occurring
or any income or profits or gains earned, accrued or received by the Company on
or prior to the Last Accounts Date or for which the Company is accountable up to
such date. Since the Last Accounts Date no further liability or contingent
liability for Taxation has arisen. As at the Last Accounts Date, the Company has
not received any demand for payment of any taxes and are under no liability to
pay any penalty or interest in connection therewith.
16. Real Property. The Company does not own or has any interest in any real
property.
17. Trademarks and trade secrets. The business of the Company as now carried on,
does not, and is not likely to, infringe any intellectual property right of any
other person.
18. Trading and General Commercial Matters.
(i) Save as described in the Vendors' Schedule of Exceptions, the Company
has never entered into, and is not, as at the date hereof, party to :-
(a) any contracts not made in the ordinary course of business;
(b) any contracts for the purchase of materials, supplies or
equipment;
(c) any sales agency, distribution, or purchasing agreements; or
(d) any agency or partnership arrangement.
(ii) The Company is not in default under any provision of any contract
or agreement to which it is a party or by which it is bound and no
event has occurred which constitutes a default, or which with the
giving of notice or the passage of time or otherwise, would
constitute a default under such contract or agreement or which
would require the premature repayment of any loans or other
amounts due thereunder.
(iii) So far as the Vendors are aware, the Company is not the
subject of any official investigation or inquiry and there are
no facts which are likely to give rise to any such investigation
or inquiry.
(iv) So far as the Vendors are aware, the Company has at all times carried
on its businesses in compliance with all applicable laws and
regulations and the Company has not committed any criminal offence or
any tort or any breach of the requirements or conditions of any
statute, treaty, regulation, bye-law or other obligation relating to
the Company, or the carrying on of its businesses and without
prejudice to the generality of the foregoing, the Company has obtained
all licences and consents necessary for the carrying on of its
businesses, and all such licences and consents are valid and
subsisting and as far as the Vendors are aware, there is no reason why
any of them should be suspended, cancelled or revoked.
19. Litigation.
(i) The Company is not involved as defendant in any civil, criminal or
arbitration proceedings (apart from those arising in the ordinary
course of business) or in any proceedings before any tribunal and no
such proceedings are threatened or pending.
(ii) There is no unsatisfied, court order or tribunal or arbitral award
outstanding against the Company and no distress, execution or process
has been levied on any part of their businesses or assets.
20. Employment Matters.
(i) There is no past, existing, threatened or pending dispute involving
the Company or its employees and there is no arrangement between the
Company and any trade union or organisation representing any such
employees.
(ii) No circumstances have arisen under which the Company is required to
pay, or is likely to be required to pay, damages in relation to the
dismissal of or to reinstate or re-engage any employee, former
employee, officer or former officer of the Company.
(iii)Other than the directors and company secretary as set out in Schedule
1, the Company has no directors, officers or employees.
(iv) There is no outstanding agreement or contract of service between the
Company and any of its directors, officers or employees.
(v) There are no share option or share incentive or similar schemes for
any officers (including directors of the Company) or employees of the
Company.
21. Disclosure. The representations and warranties contained in this Part I of
Schedule 2 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Part I of Schedule 2 not misleading.
SCHEDULE 2
PART IA
VENDORS' SCHEDULE OF EXCEPTIONS
To be provided at a later date in accordance with Section 7.10 of the Agreement.
SCHEDULE 2
PART II
PURCHASER'S WARRANTIES
REPRESENTATIONS AND WARRANTIES REGARDING THE PARENT AND THE PURCHASER
1. Organization, Qualification, and Corporate Power. Both the Purchaser and the
Parent are corporations duly organized, validly existing, and in good standing
under the jurisdictions of their respective incorporation. Except as set forth
in the Purchaser's Schedule of Exceptions, both the Purchaser and the Parent are
duly authorized to conduct business and are in good standing under the laws each
jurisdiction where such qualification is required. The Parent and the Purchaser
each have full corporate power and authority and all licenses, permits, and
authorizations necessary to carry on the businesses in which it is engaged and
to own and use the properties owned and used by it. Other than the Purchaser and
Protectserve Pacific Limited, the Parent has no subsidiaries and does not
control, directly or indirectly, or have any direct or indirect equity
participation in any entity. The Parent and the Purchaser have delivered to the
Vendors correct and complete copies of the Certificate of Incorporation and
bylaws of the Purchaser and the Parent (as amended to date). Neither the
Purchaser nor the Parent is in default under or in violation of any provision of
its Certificate of Incorporation or bylaws.
2. Capitalization.
--------------
(i) The entire authorized capital stock of the Parent consists of
200,000,000 shares of Common Stock US$0.001 par value per share, of
which 45,051,301 common shares are issued and outstanding as at the
date of this Agreement.
(ii) All of the issued and outstanding common shares have been duly
authorized, are validly issued, fully paid, and nonassessable and have
been issued in compliance with applicable laws, including, without
limitation, applicable federal and state securities laws.
(iii)Except as set forth in the Purchaser's Schedule of Exceptions, there
are no outstanding or authorized options, warrants, preemptive rights,
purchase rights, subscription rights, conversion rights, exchange
rights, or other rights or contracts or commitments that could require
the Parent to issue, sell, or otherwise cause to
become outstanding any of its capital stock, nor are there any
outstanding options, warrants or other rights of any kind to acquire
any additional shares of capital stock of the Parent or securities
exercisable or exchangeable for, or convertible into, capital stock of
the Parent, nor is the Parent committed to issue any such option,
warrant, right or security.
(iv) There are no agreements relating to the voting, purchase or sale of
capital stock (a) between or among the Parent and any of its
stockholders, (b) between or among the Parent and any third party, or
(c) to the best knowledge of the Parent between or among any of the
Parent's stockholders. The Parent is not a party to any agreement
granting any stockholder of the Parent the right to cause the Parent
to register shares of the capital stock of the Parent held by such
stockholder under the Securities Act.
(v) All of the outstanding capital stock of the Purchaser is registered in
the name of and beneficially owned by the Parent.
3. Noncontravention. Neither the execution and the delivery of this Agreement
and the documents referenced herein, nor the consummation of the transactions
contemplated hereby, will (i) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any governmental authority to which the Purchaser or the Parent is subject or
any provision of the charter or bylaws of the Purchaser or the Parent or (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any material agreement, contract, permit
or other arrangement to which the Parent or the Purchaser is a party or by which
it is bound or to which any of its assets is subject (or result in the
imposition of any Encumbrance upon any of its assets). Neither the Purchaser nor
the Parent needs to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any governmental authority in order for
the parties to this Agreement to consummate the transactions contemplated by
this Agreement except for filing required under applicable federal and state
securities laws. Without limiting the generality of the foregoing, each of the
Purchaser and the Parent has obtained all necessary consents, approvals,
waivers, permits and other authorizations required by it to enter into and
perform this Agreement and to carry out the transactions contemplated hereby.
4. Brokers' Fees. Neither the Purchaser nor the Parent has any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
5. Enforceability. This Agreement constitutes a valid and binding contract on
the Purchaser and the Parent and is enforceable against each of the Purchaser
and the Parent in accordance with its terms.
6. Consideration Shares.
(i) Upon delivery of 18,500,000 Consideration Shares pursuant to this
Agreement, the 1st Vendor will acquire valid legal title thereto, free
and clear of any Encumbrance other than the Transfer Restrictions.
(ii) Upon delivery of 3,700,000 Consideration Shares pursuant to this
Agreement, the 2nd Vendor will acquire valid legal title thereto, free
and clear of any Encumbrance other than the Transfer Restrictions.
(iii)Upon delivery of 1,850,000 Consideration Shares pursuant to this
Agreement, the 3rd Vendor will acquire valid legal title thereto, free
and clear of any Encumbrance other than the Transfer Restrictions.
(iv) Upon delivery of 5,550,000 Consideration Shares pursuant to this
Agreement, the 4th Vendor will acquire valid legal title thereto, free
and clear of any Encumbrance other than the Transfer Restrictions.
(v) Upon delivery of 74,000,000 Consideration Shares pursuant to this
Agreement, the 5th Vendor will acquire valid legal title thereto, free
and clear of any Encumbrance other than the Transfer Restrictions.
(vi) The Parent has filed all reports, registration statements, definitive
proxy statements and other documents and all amendments thereto and
supplements thereof required to be filed by it with the U.S.
Securities and Exchange Commission (the "SEC Reports"), all of which
have complied in all material respects with the applicable
requirements of the Securities Act and the Securities Exchange Act of
1934, as amended and the rules and regulations promulgated thereunder.
7. Absence of Certain Changes. Since the Last Accounts Date, there has not been
any event or condition of any character which has adversely affected, or may be
expected to adversely affect, the Parent's business or prospects.
8. Legal Proceedings. Except as disclosed in the SEC Reports, as of the date of
this Agreement, there is no legal, administrative, investigatory, regulatory or
similar action, suit, claim or proceeding which is pending or, so far as the
Parent and the Purchaser are aware, threatened against the Parent or the
Purchaser which, if determined adversely to the Parent and/or the Purchaser,
could have, individually or in the aggregate, a material adverse effect on the
business, assets, or prospects of the Parent or the Purchaser which in any
manner challenges or seeks to prevent, enjoin, alter or delay the transactions
contemplated by this Agreement.
9. Legal Compliance. Each of the Parent and the Purchaser has complied in all
material respects with all applicable laws (including rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder)
of all governmental authorities, and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, or notice has been filed or
commenced against either the Parent or the Purchaser alleging any failure so to
comply. Neither the Parent, the Purchaser nor any officer, director, employee,
consultant or agent of the Parent or the Purchaser has made, directly or
indirectly, any payment or promise to pay, or gift or promise to give or
authorized such a promise or gift, of any money or anything of value, directly
or indirectly, to any governmental official, customer or supplier for the
purpose of influencing any official act or decision of such official, customer
or supplier or inducing him, her or it to use his, her or its influence to
affect any act or decision of a governmental authority or customer, under
circumstances which could subject the Parent or the Purchaser or any officers,
directors, employees or consultants of the Parent or the Purchaser to
administrative or criminal penalties or sanctions.
10. Disclosure. The representations and warranties contained in this Part II of
Schedule 2 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Part II of Schedule 2 not misleading.
SCHEDULE 2
PART IIA
PURCHASER'S SCHEDULE OF EXCEPTIONS
To be provided at a later date in accordance with Section 8.10 of the Agreement.
Dated the 21st day of March 2003
WISE MEDIA GROUP INC.
(as 1st Vendor)
and
CHINA MEDIA INC.
(as 2nd Vendor)
and
SINOWISE LIMITED
(as 3rd Vendor)
and
WAN KIN MAN
(as 4th Vendor)
and
WORLDCON ASSETS LIMITED
(as 5th Vendor)
and
THE LINK GROUP INC.
(as Parent)
and
ASIA GENIUS LIMITED
(as Purchaser)
AGREEMENT FOR SALE AND PURCHASE OF
Certain Shares in
Wise Media Investments Limited
