EXHIBIT 2.04
DATED THIS 13TH DAY OF AUGUST 1999
BETWEEN
XXXXXX AIRPORT SYSTEMS (M) SDN BHD
AND
XXXXXX SOLID STATE (MALAYSIA) SDN Xxxx)
("the Vendors")
AND
SAPPHIRE WORLD INVESTMENTS, INC.
("the Purchaser")
*************************************
SHARE SALE AGREEMENT
for 211,275,680 ordinary shares of RM1.00 each
in XXXXXX ADVANCED TECHNOLOGY (MALAYSIA) SDN BHD
*************************************
MESSRS XXXXXX XXXXXXXX & Co.
ADVOCATES & SOLICITORS
10TH FLOOR
WISMA HAMZAH XXXXX XXXX
XX. 0 XXXXX XXXXXX
00000 XXXXX XXXXXX
THIS AGREEMENT is made on August 13, 1999, between:
(1) XXXXXX AIRPORT SYSTEMS (M) SDN BHD (Company No. 17068-A), a company
incorporated in Malaysia whose registered office is at 73 Lorong
Enggang, ULU Kiang Free Trade Xxxx, 00000 Xxxxx Xxxxxx, Xxxxxxxx
("HAS);
(2) XXXXXX SOLID STATE (MALAYSIA) SDN BHD (Company No. 15798-U), a company
incorporated in Malaysia whose registered office is at 73 Lorong
Euggang, ULU Kiang Free Trade Xxxx, 00000 Xxxxx Xxxxxx, Xxxxxxxx
("HSSM"), of the one part (Collectively "the Vendors"); and
(3) SAPPHIRE WORLDWIDE INVESTMENTS, INC., a company incorporated in the
British Virgin Islands ("the Purchaser") of the other part.
WHEREAS
(1) Together the Vendors legally and beneficially own 211,275,680 fully
paid up shares of RM 1.00 each of Xxxxxx Advanced Technology Sdn. Bhd.,
a corporation existing under the laws of Malaysia, with its registered
office at 73 Lorong Enggang, ULU Kiang Free Trade Xxxx, 00000 Xxxxx
Xxxxxx, Xxxxxxxx ("HAT"), which shares comprise all of the shares of
HAT.
(2) The Vendors desire to sell to Purchaser and Purchaser desires to
purchase from the Vendors all of said 211,275,680 shares of HAT
registered in their respective names (such shares, "the HAT Equity
Interest").
IT IS HEREBY AGREED as follows:
1. Agreement and Purchase Price
1.1 Subject to the provisions of this Agreement, the Vendors shall sell to
the Purchaser and the Purchaser shall purchase from the Vendors the HAT
Equity Interest free from all claims, charges, liens and pledges and
other encumbrances together with all rights attached or accruing
thereto on the Closing Date.
1.2. On the Closing Date, Purchaser shall pay to the Vendors the aggregate
amount of USD 94,274,000 as consideration for the HAT Equity Interest.
1.3 On the Closing Date the following matters shall be given effect in the
order appearing below, subject to the completion of all of them:
1.3.1 Purchaser shall deliver by wire transfer the amount of USD
94,274,000 payable in the following manner:
(a) for the amount of USD 43,366,000 in favour of HAS;
and
(b) for the amount of USD 50,908,000 in favour of HSSM.
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1.3.2 the Vendors shall deliver to the Purchaser:
(a) properly executed instruments of transfer of the
shares comprising the HAT Equity Interest duly
executed by the Vendors in favour of the Purchaser or
such person(s) as it may direct accompanied by the
relevant original share certificates in respect of
the HAT Equity Interest;
(b) original letters of resignation (in the form set out
in Annex A hereto) of all the directors of HAT,
unless Purchaser shall otherwise request, with effect
from the Closing Date;
(c) a certified true copy of the resolution of the board
of directors of HAT appointing Xxxxxxx X. Xxxxxxxx,
Xxxxx X. Xxxx and Xxxx X. Xxxx as directors of the
Company with effect from the Closing Date; and
(d) all the statutory and other books and records,
certificates of incorporation and common seals of the
Company.
2. Conditions Precedent
This Agreement is subject to:
(a) the approval of the Minisby of International Trade and
Industry ("MITI") to the sale by the Vendors to the Purchaser
of the HAT Equity Interest subject to terms and conditions
reasonably satisfactory to Purchaser.
(b) the approval of shareholders of each of the Vendors approving
the sale by the Vendors to the Purchaser of the HAT Equity
Interest.
(c) the approval of shareholders of the Purchaser approving the
purchase by the Purchaser from the Vendors of the HAT Equity
Interest.
(d) a certified true copy of the resolution of the board of
directors of HAT authorising the registration of the transfer
of HAT Equity Interest from HAS and HSSM to the Purchaser and
the issue of fresh certificates for the HAT Equity Interest in
favour of the Purchaser;
(e) copies, certified as true copies by the Vendors' solicitors,
of original issue documents of title of the properties held
under:
(i) HS(M) 2601 Xxx 0000, Xxxxx xx Xxxx Xxxxxx, Xxxxxxxx
of Gombak, Locality XX0, Xxxxxx/Xxxx Xxxxx, Xxxxx xx
Xxxxxxxx;
(ii) HS(M) 2603 Xxx 0000, Xxxxxx xx Xxxx Xxxxxx, Xxxxxxxx
of Gombak, Locality XX0, Xxxxxx/Xxxx Xxxxx, Xxxxx of
Selangor;
and
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(iii) PN 7128 Xxx 0000, Xxxxx xx Xxxx Xxxxxx, Xxxxxxxx of
Gombak, State of Selangor;
and known as Xx. 00, Xxxxx Xxxxxxx, Xxx Xxxxxx Free
Trade Xxxx, 00000 Xxxxx Xxxxxx, Xxxxxxxx;
(f) a PDS-6 stamp duly adjudication form, Part II, which has been
completed by the company secretary of HAT, in respect of the
transfer of the HAT Equity Interest together with the latest
copy of the audited accounts of HAT;
3. Covenants
3.1 Each Vendor shall take all necessary corporate actions required by
Malaysian law to obtain approval by their respective board of directors
and the government of Malaysia for the transfer of the HAT Equity
Interest from the Vendors to the Purchaser and the registration of the
Purchaser as the Owner of the HAT Equity Interest in the registers of
HAT.
3.2 Purchaser shall take all necessary corporate actions required by the
laws of Malaysia and the British Virgin Islands to obtain approval by
the Purchaser board of directors and the government of Malaysia for the
transfer of the HAT Equity Interest from the Vendors to the Purchaser.
4. Assumption of Obligations
4.1 From and after the Closing Date, Purchaser shall assume any and all
obligations and liabilities of the Vendors, which obligations or
liabilities the Vendors are required to perform under the Articles of
Association of HAT or any contract entered into by HAT and accepted or
guaranteed by or concurred in, in writing, by the Vendors in order to
conduct the business of HAT. From and after the Closing Date Purchaser
may exercise any rights with respect to HAT which could have been
exercised prior to the Closing Date by the Vendors.
5. Limitation of Liabilities
5.1 IN NO EVENT SHALL ANY PARTY TO THIS AGREEMENT BE LIABLE TO ANY OTHER
PARTY OR TO ANY PARTY CLAIMING UNDER ANY OF THE PARTIES TO THIS
AGREEMENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE OR OTHERWISE), FAILURE OF A REMEDY TO ACCOMPLISH
ITS PURPOSE OR OTHERWISE, FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES.
6. Force Majeure
6.1 No party to this Agreement shall be liable in damages for any delay or
default in the performance of all or any of this Agreement, if such
delay or default is caused by conditions beyond its control, including
but not limited to: acts of the elements, fires, explosion, floods, or
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other casualties, governmental restrictions or orders, and inability to
obtain necessary government approvals.
7. Closing Date
7.1 The Closing Date of this Agreement shall occur promptly on such date as
the Vendors and the Purchaser shall agree, which date shall be after
the date on which the transfer of the HAT Equity Interest from the
Vendors to the Purchaser has been approved by the FTC and any other
relevant regulatory authorities in Malaysia.
8. Termination
8.1 This Agreement shall be terminated by the mutual consent of all the
parties, or upon the occurrence of one of the following events:
(a) A final decision of the government of Malaysia to prohibit the
transfer of the HAT Equity Interest from the Vendors to
Purchaser.
(b) Termination of the Master Transaction Agreement in accordance
with the terms thereof
9. Governing Law and Dispute Resolution
9.1 This Agreement shall be construed in accordance with and governed by
the laws of Malaysia as it applies to contracts to be performed
entirely within Malaysia.
9.2 In the event that any dispute arises between the parties pertaining to
the subject matter of this Agreement, and the parties, through the
senior management of Purchaser and Xxxxxx Corporation, the owner of the
shares of the Vendors, are unable to resolve such dispute within a
reasonable time through negotiations and mediation efforts by senior
executives of both parties, such dispute shall be resolved as set forth
in this Article 10.2.
(a) The procedures of this Article 10.2 may be initiated by a
written notice ("Dispute Notice") given by one party
("Claimant") to the other, but not before thirty (30) days
have passed during which the parties have been unable to reach
a resolution as described above. The Dispute Notice shall be
accompanied by (i) a statement of the Claimant describing the
dispute in reasonable detail and (ii) documentation, if any,
supporting the Claimant's position on the dispute. Within
twenty (20) days after the other party's ("Respondent")
receipt of the Dispute Notice and accompanying materials, the
parties shall submit the dispute to non-binding mediation in
the Washington, D.C. area under the rules of the American
Arbitration Association. All negotiations and mediation
procedures pursuant to this paragraph (a) shall be
confidential and treated as compromise and settlement
negotiations and shall not be admissible in any arbitration or
other proceeding.
(b) If the dispute is not resolved as provided in paragraph (a)
within sixty (60) days after the Respondent's receipt of the
Dispute Notice, the dispute shall be resolved by binding
arbitration. In the event the dispute is to be resolved
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pursuant to arbitration, each party shall appoint an
arbitrator within seventy-five (75) days after the
Respondent's receipt of the Dispute Notice, and the two
arbitrators so chosen shall promptly appoint a third
arbitrator. If either party fails to name an arbitrator as
aforesaid, such arbitrator shall be designated by the American
Arbitration Association in the Washington, D.C. area. If any
arbitrator becomes disabled, resigns or is otherwise unable to
discharge the arbitrator's duties, the arbitrator's successor
shall be appointed in the same manner as such arbitrator was
appointed.
(c) Except as otherwise provided in this Article 10.2, the
arbitration shall be conducted in accordance with the
Commercial Rules of the American Arbitration Association,
which shall be governed by the United States Arbitration Act.
(d) Any resolution reached through mediation and any award arising
out of arbitration (i) shall be binding and conclusive upon
the parties; (ii) shall be limited to a holding for or against
a party, and affording such monetary remedy as is deemed
equitable, just and within the scope of this Agreement; (iii)
may not include special, incidental, consequential or punitive
damages; (iv) may in appropriate circumstances include
injunctive relief; and (v) may be entered in court in
accordance with the United States Arbitration Act.
(e) Arbitration shall not be deemed a waiver of any right of
termination under this Agreement, and the arbitrator is not
empowered to act or make any award other than based solely on
the rights and obligations of the parties prior to termination
in accordance with this Agreement.
(f) The arbitrator may not limit, expand or otherwise modify the
terms of this Agreement.
(g) The laws of Malaysia shall apply to any mediation,
arbitration, or litigation arising under this Agreement.
(h) Each party shall bear its own expenses incurred in any
mediation, arbitration or litigation, but any expenses related
to the compensation and the costs of any mediator or
arbitrator shall be borne equally by the parties to the
dispute.
(i) A request by a party to a court for interim measures necessary
to preserve a party's rights and remedies for resolution
pursuant to this Article 10.2 shall not be deemed a waiver of
the obligation to mediate or of the agreement to arbitrate.
(j) The parties, their representatives, other participants and the
mediator or arbitrator shall hold the existence, content and
result of mediation or arbitration in confidence.
10. Amendment
10.1 No variation of this Agreement shall be valid unless it is in writing
and signed by or on behalf of each of the parties to it.
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11. Successors Bound
11.1 This Agreement shall be binding upon the parties hereto and their
respective successors in title and permitted assigns.
12. Notices
Unless otherwise specified herein, all notices, requests or other
communications to or upon each of the parties hereto or their
solicitors, shall be deemed to have been received it:
(a) in the case of notice delivered personally, on the date of
delivery; or
(b) in the case of notice by letter, three (3) Business Days after
the same is sent by prepaid registered post; or
(c) in the case of transmission by facsimile when the recipient's
facsimile number is shown on the sender's receipt of a
confirmed log print-out for the transmission regarding the
date, time and transmission of all pages;
and shall be addressed to the addresses of the parties hereto
hereinbefore mentioned or such other address any of the parties may
designate from time to time by written notice to the other party hereto
or the addresses of their solicitors.
13. Severability
13.1 In the event that any one or more of the provisions contained in this
Agreement shall for any reason be held to be unenforceable, illegal or
otherwise invalid in any respect under the law governing this Agreement
or its performance, such unenforceability, illegality or invalidity
shall not affect any other provisions of this Agreement and this
Agreement shall then be construed as if such unenforceable, illegal or
invalid provisions had never been contained herein.
14. Counterparts
14.1 This Agreement may be executed in one or more counterparts, each of
which shall be an original, but all of which shall constitute one
instrument.
15. Headings
15.1 The headings in this Agreement are for convenience only and shall have
no effect on the interpretation hereof.
16. Entire Agreement
16.1 The terms and conditions herein shall contain and constitute the entire
agreement between the parties, and shall supersede all previous
communications, either oral or written, between the parties with
respect to the subject matter hereof, and no agreement or
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understanding, varying, or modifying the same shall be binding upon any
other party unless in writing and signed by a duly authorized officer
or representative of each party.
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IN WITNESS WHEREOF this Agreement has been entered into by the parties
hereto on the day and year first above written.
Signed by Xxxxx X. Xxxx
/s/ Xxxxx X. Xxxx
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for and on behalf of
XXXXXX AIRPORT SYSTEMS (M) SDN BHD
in the presence of Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
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Witness
Signed by Xxxxx X. Xxxx
/s/ Xxxxx X. Xxxx
-------------------------------------
for and on behalf of
XXXXXX SOLID STATE (MALAYSIA) SDN BHD
in the presence of Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
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Witness
Signed by Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
for and on behalf of
SAPPHIRE WORLDWIDE INVESTMENTS, INC.
in the presence of:
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Witness
