Exhibit 4.53
DATED THE __________ DAY OF __________, 2007
XXXX XXXX MIU-XXX XXXXXX
and
FNG INTERNATIONAL HOLDINGS LIMITED
and
CHINA FINANCE ONLINE CO. LIMITED
----------
AGREEMENT
for the sale and purchase
of shares in
Daily Growth Investment Company Limited
(Chinese Characters)
----------
F. ZIMMERN & CO.
Solicitors & Notaries
Suites 1501-1503, 00xx Xxxxx, Xxxxxxxxxx Xxxxx,
Xxx Xxxxxxxx, 00 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx
Tel: (000) 0000-0000
Fax: (000) 0000-0000
Ref: AN/PC/S14/2007
THIS AGREEMENT is made on the __________ day of __________, 2007.
BETWEEN :-
1. XXXX XXXX MIU-XXX XXXXXX whose correspondence address is at Xxxxx 0,
Xxxxxxx Xxxxxx, Xxx 000, XX000, Ta Ku Ling San Chuer, Clear Water Bay,
Kowloon, Hong Kong (the "VENDOR");
2. FNG INTERNATIONAL HOLDINGS LIMITED, a company incorporated in the British
Virgin Islands whose registered address is at Trident Xxxxxxxx, P.O. Box
146, Road Town, Tortola, British Virgin Islands (the "PURCHASER"); and
3. CHINA FINANCE ONLINE CO. LIMITED, a company incorporated in Hong Kong whose
registered office is situate at Xxxx 000, 0xx Xxxxx, Xxxxxxxxx Xxxxx, 10
Harcourt Road, Central, Hong Kong (the "GUARANTOR").
(The Vendor and the Purchaser are collectively referred to as the "PARTIES"
and each as a "PARTY")
WHEREAS :-
(A) Daily Growth Investment Company Limited (Chinese Characters) (the
"COMPANY") is a private limited company incorporated under the laws of Hong
Kong on 6 October 1971 and has an authorised share capital of HK$10,000,000
divided into 100,000 ordinary shares of HK$100 each, of which 100,000
ordinary shares have been issued and are fully paid up. The Company is a
licensed corporation to engage in type 1 regulated activity (dealing in
securities) under the Securities and Futures Ordinance, Chapter 571 of the
laws of Hong Kong. Particulars of the Company are set out in Schedule 1.
(B) The Vendor is the legal and beneficial owner of 4,000 issued ordinary
shares of the Company, representing 4 per cent. of the entire issued share
capital of the Company (the "SALE SHARES").
(C) The Vendor has agreed to sell, and the Purchaser has agreed to purchase,
the
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Sale Shares on the terms and conditions hereinafter appearing.
(D) The Purchaser is a wholly owned subsidiary of the Guarantor.
(E) The Guarantor has agreed to guarantee as the primary obligor for the due
performance of the Purchaser under this Agreement.
AND NOW IT IS HEREBY AGREED as follows
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless otherwise expressed or required by context, the
following expressions shall have the respective meanings set opposite
thereto :-
Expression Meaning
---------- -------
"Accounts" means the audited profit and loss accounts for
the period ended on and the balance sheet as at
the Accounts Date of the Company;
"Accounts Date" means 31 December 2006;
"Approval" have the meaning ascribed to it in Clause
2.1(b) hereof;
"Business Day" means a day, other than a "general holiday" (as
defined in the General Holidays Ordinance
(Chapter 149 of the Laws of Hong Kong)),
Saturday and any day on which a tropical
cyclone warning No. 8 or above is hoisted or
remains hoisted between 9:00 a.m. and 12:00
noon and is not lowered at or before 12:00 noon
or on which a "black" rainstorm warning signal
is hoisted or remains in effect between 9:00
a.m. and 12:00 noon and is not discontinued at
or before 12:00 noon, on which commercial banks
are generally
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open for banking business in Hong Kong;
"Completion Accounts" means the profit and loss accounts for the
period ended on and the balance sheet as at the
Completion Date of the Company;
"Completion Date" means the date on which completion of the sale
and purchase of the Sale Shares takes place as
mentioned in Clause 4 hereof;
"Consideration" has the meaning ascribed to it in Clause 3
hereof;
"Deposit" has the meaning ascribed to it in Clause 3.2(a)
hereof;
"Disclosure Letter" means the disclosure letter from the Vendor to
the Purchaser to be delivered at Completion in
the form identical to that attached hereto as
Schedule 3 hereto or with lesser disclosures;
"Hong Kong" means the Hong Kong Special Administrative
Region of the People's Republic of China;
"Liabilities" means the total liabilities of the Company
whether actual or contingent as at Completion,
and for the avoidance of doubt, including all
provisions for taxation and bad debts;
"NAV" means the Tangible Assets less the Liabilities;
"Shares" means issued ordinary shares of HK$100 each in
the capital of the Company, and "Shareholders"
shall be construed accordingly;
"SFC" means the Securities and Futures Commission;
"SFO" means the Securities and Futures Ordinance
(Chapter 571 of the laws of Hong Kong);
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"Stock Exchange" The Stock Exchange of Hong Kong Limited;
"Tangible Assets" means the total tangible assets of the Company
as at Completion, including an amount of
HK$794,157.41 due from Xx. Xxxxxx Xxxx Xxxxxx
as at 1 August 2007 to the Company to be
accepted by the Parties as accounts receivable
without any provision for non-recovery;
"Vendor's Solicitors" means F. Zimmern & Co; and
"HK$" and "Cent" means Hong Kong Dollars and Cents respectively.
1.2 The headings to the Clauses of this Agreement are for ease of reference
only and shall be ignored in interpreting this Agreement.
1.3 Reference to Clauses and Schedules are references to Clauses and Schedules
of or to this Agreement.
1.4 Words and expressions in the singular include the plural and vice versa.
1.5 Reference to person include any public body and any body of persons,
corporate or unincorporated.
1.6 Reference to ordinances, statutes, legislation or enactments shall be
construed as a reference to such Ordinances, statutes, legislation or
enactments as may be amended or re-enacted from time to time and for the
time being in force.
2. CONDITIONS PRECEDENT
2.1 Completion of this Agreement shall be conditional upon :-
(a) the Company remains a licensed corporation to engage in type 1
regulated activity (dealing in securities) under the SFO up to
Completion;
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(b) the SFC giving its written approval to approve the Purchaser to become
a substantial shareholder of the Company (the "APPROVAL"); and
(c) the Purchaser shall, in addition to the Sale Shares to be acquired
pursuant hereto, acquire on the Completion Date Shares from other
existing Shareholders which together with the Sale Shares, shall in
aggregate represent not less than 75% of the entire issued share
capital of the Company as at the Completion Date.
2.2 The Vendor will use her best endeavours to procure the fulfilment of the
condition set out in Clauses 2.1 (a) and 2.1(c) hereof and the Purchaser
will use its best endeavours to procure the fulfilment of the condition set
out in Clause 2.1(b) hereof.
2.3 If (i) the condition as set out in Clause 2.1(a) hereof cannot be fulfilled
on the Completion Date, the Vendor or the Purchaser may, or (ii) the
condition as set out in Clause 2.1(c) hereof cannot be fulfilled on the
Completion Date, the Purchaser may terminate this Agreement. In any of such
event, the Deposit shall be returned to the Purchaser in full together with
interest calculated at the rate of three (3) per cent. per annum from the
date of payment of the Deposit by the Purchaser up to the date of refund.
Upon the refund, this Agreement shall lapse and no Party shall have any
claim against the other Party except in respect of any antecedent breach.
2.4 If the condition as set out in Clause 2.1(b) hereof cannot be fulfilled on
or before 31 December 2007 (the "CONDITIONS DEADLINE"), the Vendor will
allow the Purchaser to extend the Conditions Deadline for a period up to
three (3) calendar months from 1 January 2008 (the "EXTENDED PERIOD")
provided that the Purchaser shall pay compensation (the "COMPENSATION") to
the Vendor, unless the delay is due to the proven default of the Vendor, to
be arrived at by the following formula :-
C = [(HK$3 * S) * 3] * D/91
C = the total Compensation payable by the Purchaser to the Vendor
S = the number of the Sale Shares
D = the number of days from 1 January 2008 up to and including (i)
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the Completion Date; or (ii) the day of the receipt of the Notice
(as defined below) by the Vendor; or (iii) 31 March 2008, as the
case may be, to be determined in the manner as provided in Clauses
2.5 (a) and (b)
The Purchaser may serve a written notice to the Vendor not to proceed with
the Completion (the "NOTICE") during the Extended Period.
2.5 (a) In the event that Completion takes place before the expiry of the
Extended Period, the Purchaser shall pay the Compensation calculated
up to the Completion Date to the Vendor on the Completion Date.
(b) In the event that the Purchaser shall fail to complete the purchase of
the Sale Shares in accordance with the terms of this Agreement
(including failure to complete by reason of the failure to obtain the
Approval) other than due to the proven default of the Vendor, half of
the Deposit shall be forfeited to the Vendor as liquidated damages
(the "FORFEITURE") and in addition, if the Conditions Deadline is
extended, the Vendor shall also be entitled to deduct the Compensation
(calculated up to the day of the receipt of the Notice by the Vendor
if the Notice is served by the Purchaser or calculated up to 31 March
2008 if no Notice is served by the Purchaser) from the balance of
the Deposit (the "DEDUCTION"). The remaining balance of the Deposit
(after the Forfeiture and any Deduction) shall be returned to the
Purchaser without interest within seven (7) days from the date of the
receipt of the Notice by the Vendor or 31 March 2008, as the case may
be. After the Forfeiture and any Deduction, the Vendor shall have no
claim whatsoever against the Purchaser under this Agreement.
2.6 If the Vendor shall fail to complete the sale of the Sale Shares in
accordance with the terms of this Agreement due to the proven default of
the Vendor, the Deposit shall be returned to the Purchaser in full together
with interest calculated at the rate of three (3) per cent. per annum from
the date of payment of the Deposit by the Purchaser up to the date of
refund. Subject to the aforesaid payment, the Purchaser shall have no claim
whatsoever against the Vendor under this Agreement.
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3. SALE AND PURCHASE OF THE SALE SHARES AND THE CONSIDERATION
3.1 Subject to the terms and conditions of this Agreement, the Vendor as
beneficial owner hereby agrees to sell to the Purchaser and the Purchaser,
relying on the representations and warranties made or given by the Vendor
and subject to the terms and conditions contained in this Agreement, agree
to purchase from the Vendor the Sale Shares free from all claims, charges,
liens, encumbrances, equities and third party rights and together with all
rights attached thereto and all dividends and distributions declared, paid
or made in respect thereof after the Completion Date at a consideration
(the "CONSIDERATION") to be arrived at by the following formula :-
C = P * S
C = the total consideration payable by the Purchaser to the Vendor for the
Sale Shares
P = the price per Share based on the NAV as at the Completion Date plus a
premium of HK$15 per Share (which is to reflect the value of the
trading right held by the Company in the Stock Exchange)
S = the number of Sale Shares
3.2 Subject to Clause 3.3 hereof, the Consideration shall be paid by the
Purchaser to the Vendor as follows:-
(a) a sum of HK$200,000 (i.e. HK$50 per Sale Share) as deposit and part
payment of the Consideration (the "DEPOSIT") to be paid on the signing
of this Agreement by way of delivering a solicitor's cheque to the
Vendor's Solicitors as stakeholder to be held by it subject to the
provisions of this Agreement and the sum of HK$1,000,000 being the
xxxxxxx money already paid by the Purchaser to the Purchaser's
Solicitors as stakeholder under the term sheet dated 25 July 2007 be
released to the Purchaser after payment of the Deposit; and
(b) the balance of the Consideration to be paid on Completion by way of a
solicitor's cheque to the Vendor.
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3.3 (a) The Vendor shall procure that the draft pro-forma Completion Accounts
(the "DRAFT PRO-FORMA COMPLETION ACCOUNTS") be drawn up and delivered
to the Purchaser not less than six (6) days prior to the Completion
Date. Completion shall take place on the basis of the draft pro-forma
Completion Accounts.
(b) After Completion, the Vendor shall procure the final Completion
Accounts (the "FINAL COMPLETION ACCOUNTS") be drawn up and delivered
to the Purchaser within fourteen (14) days after the Completion Date.
Subject to Clause 3.3(d), if the final Completion Accounts shall show
that the NAV per Share is less than the NAV per Share as shown in the
draft pro-forma Completion Accounts, the Vendor shall pay the amount
of the difference of the NAV per Share multiplied by the number of the
Sale Shares to the Purchaser within ten (10) days from the date of
delivery of the final Completion Accounts by way of solicitor's
cheque. If the final Completion Accounts shall show that the NAV per
Share is more than the NAV per Share as shown in the draft pro-forma
Completion Accounts, the Purchaser shall pay the amount of the
difference of the NAV per Share multiplied by the number of the Sale
Shares to the Vendor within ten (10) days from the date of delivery of
the final Completion Accounts by way of solicitor's cheque. The
Purchaser shall provide with the Vendor full access to the books,
records and resources of the Company so as to enable the Vendor to
procure the final Completion Accounts to be drawn up.
(c) The basis and policy of accounting adopted in preparing the pro-forma
draft Completion Accounts and the final Completion Accounts shall be
in accordance with the generally accepted accounting practices in Hong
Kong.
(d) In the event of a dispute between the Parties as to the amount of the
NAV as shown in the final Completion Accounts, the Vendor or the
Purchaser may procure that the final Completion Accounts be audited by
the auditors of the Company within forty-five (45) days from the date
of delivery of the final Completion Accounts provided that the
procurement of the audited final Completion Accounts shall be made by
the relevant Party within seven (7) days from the date of delivery of
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the final Completion Accounts.
(e) If the audited Completion Accounts shall show that the NAV per Share
is less than the NAV per Share as shown in the draft pro-forma
Completion Accounts, the Vendor shall pay the amount of the difference
of the NAV per Share multiplied by the number of the Sale Shares to
the Purchaser within seven (7) days from the date of delivery of the
audited Completion Accounts by way of solicitor's cheque. If the
audited Completion Accounts shall show that the NAV per Share is more
than the NAV per Share as shown in the draft pro-forma Completion
Accounts, the Purchaser shall pay the amount of the difference of the
NAV per Share multiplied by the number of the Sale Shares to the
Vendor within seven (7) days from the date of delivery of the audited
Completion Accounts by way of solicitor's cheque. The Vendor together
with the other vendors of the one part and the Purchaser of the other
part shall each be responsible for payment of 50% of the cost and
expenses for the preparation and completion of the audited Completion
Accounts.
4. COMPLETION
4.1 Subject to the provisions in Clause 2 hereof, completion of the sale and
purchase of the Sale Shares shall take place at the offices of Arculli Fong
& Ng (the "PURCHASER'S SOLICITORS"), the Solicitors for the Purchaser, at
000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxx Xxxx or any other place as the Parties
may agree at 5:00 p.m. on a Friday of the week immediately following the
week when the Approval is granted by the SFC, when the following business
shall simultaneously be transacted :-
(a) the Purchaser shall deliver to the Vendor the following :-
(i) a solicitor's cheque for payment of the balance of the
Consideration and the Vendor's Solicitors will release the
Deposit to the Vendor; and
(ii) a certified copy of each of the minutes of the board of directors
of the Purchaser and the Guarantor approving this
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Agreement and authorizing/confirming the authorization of an
authorised person for signing of this Agreement and (for the
Purchaser) the bought note and the instrument of transfer and any
other incidental documents hereof;
(b) the Vendor shall deliver to the Purchaser the following :-
(i) sold notes and instrument of transfer in favour of the Purchaser
in respect of the Sale Shares all executed by the Vendor in
accordance with the Stamp Duty Ordinance;
(ii) original share certificate(s) or re-issued share certificate(s)
in respect of the Sale Shares;
(iii)such other documents as may be reasonably required to give a good
and effective transfer of title to the Sale Shares to the
Purchaser and to enable them to become the registered holders
thereof;
(iv) a cheque drawn in favour of the Government of the Hong Kong
Special Administrative Region for an amount equivalent to the
stamp duty payable under the Stamp Duty Ordinance in respect of
the sold notes in respect of the Sale Shares;
(v) a certified copy of the minutes of the board of directors of the
Vendor (if the Vendor is a corporate) approving the sale of the
Sale Shares and authorizing/confirming the authorization of an
authorised person for signing of this Agreement and the sold note
and the instrument of transfer and any other incidental documents
hereof;
(vi) to the extent that the same are not already in the possession of
the Company or its agents, the certificate of incorporation,
business registration certificate, common seal of the Company,
all copies of memorandum and articles of association of the
Company, the statutory books of the Company duly made up to date,
any unissued share
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certificates, all current insurance policies, books and accounts
and other records, cheque books, title deeds and evidence of
ownership to all assets of the Company and all current contracts;
(vii) an original of the Disclosure Letter duly executed by the Vendor
in the form identical to that attached as Schedule 3 hereto or
with lesser disclosures;
(c) the Vendor shall cause a meeting of the board of directors of the
Company to be held at which resolutions shall be passed to :-
(i) approve the transfer of the Sale Shares;
(ii) register (subject to stamping) the transfer of the Sale Shares
referred to above and to issue new certificate(s) for the Sale
Shares in the name(s) of the Purchaser;
(iii) appoint one person as the Purchaser may nominate as the Chairman
of the Company and such person(s) as the Purchaser may nominate
as director(s) of the Company and (subject to the approval of the
SFC) one person as the Purchaser may nominate as the Responsible
Officer of the Company all to take effect from the close of
business of the said meeting if so required by the Purchaser; and
(iv) amend all banking authorisations, instructions and mandates of
the Company in such manner as the Purchaser may direct; and
(d) the Purchaser shall :-
(i) produce for inspection by the Vendor the bought notes in respect of
the Sale Shares executed by the Purchaser in compliance with the Stamp
Duty Ordinance; and
(ii) procure the stamping of the bought and sold notes and the instrument
of transfer in respect of the Sale Shares as soon
11
as practicable thereafter and present the said instrument of transfer
together with the share certificate(s) in respect of the Sale Shares
to the Company for registration of the transfer.
4.2 The transactions described in Clause 4.1 hereof shall take place at the
same time, so that in default of the performance of any such transactions
by a Party, the other Party shall not be obliged to complete the sale and
purchase aforesaid.
5. REPRESENTATIONS AND WARRANTIES AND GUARANTEE
5.1 Save as disclosed in the Disclosure Letter and documents and information
provided to the Purchaser and/or its advisors, the Vendor hereby represents
and warrants to the Purchaser that each of the matters set out in Schedule
2 are as at the date hereof and will be for all times up to and including
the Completion Date, true and correct in all material respects.
5.2 From the date of this Agreement until the Completion Date the Vendor shall
use her best endeavours to procure that (save with the prior consent in
writing or of the Purchaser, such consent not to be unreasonably withheld
or delayed) the Company shall not :-
(a) issue or agree to issue any of its share or loan capital or grant or
agree to grant any option over or right to acquire any of its share or
loan capital;
(b) enter into any contract (otherwise than in the ordinary course of
business) or any capital commitment;
(c) create or permit to arise any lien, charge, pledge, mortgage or other
security interest on or in respect of any of its undertaking, property
or assets;
(d) appoint any directors other than as provided in this Agreement; or
(e) increase the remuneration of its employees (save as payment of
discretionary bonus and save that the increase is made pursuant to the
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relevant employment contract)
and the Vendor shall use her best endeavours to procure that the Purchaser
be kept regularly informed of the affairs of the Company until the
Completion Date.
5.3 The liability of the Vendor in respect of any breach of the warranties or
representations as set out in Schedule 2 shall be limited as follows:-
(a) the maximum liability of the Vendor, if any, under this Agreement
shall be 25% of the Consideration;
(b) no claims may be brought against the Vendor in respect of any claim of
damages for breach of warranty(ies) or representation(s) as set out in
Schedule 2 after the expiry of six months from the Completion Date.
5.4 In consideration of the Vendor agreeing to enter into this Agreement, the
Guarantor (as principal obligor and not merely as surety) unconditionally
and irrevocably guarantees performance by the Purchaser of all its
obligations and liabilities under or arising out of or in connection with
this Agreement (referred to herein as the "GUARANTEED OBLIGATIONS") and
undertakes to the Vendor that if and whenever the Purchaser is in default,
the Guarantor shall duly and promptly perform or procure such performance
of the Guaranteed Obligations and indemnify the Vendor against any loss,
damage, costs, expenses and liabilities that she may suffer in connection
with or arising out of any such failure on the part of the Purchaser.
6. SEVERABILITY
If at any time any one or more provisions hereof is or becomes invalid,
illegal, unenforceable or incapable of performance in any respect, the
validity, legality, enforceability or performance of the remaining
provisions hereof shall not thereby in any way be affected or impaired.
7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between
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the Parties in connection with the subject-matter of this Agreement and
supersedes all previous proposals, representations, warranties, agreements
or undertakings relating thereto whether oral, written or otherwise and
none of the Parties has relied on any such proposals, representations,
warranties, agreements or undertakings.
8. TIME
8.1 Time shall be of the essence of this Agreement.
8.2 No time or indulgence given by any Party to the other Party shall be deemed
or in any way be construed as a waiver of any of her/its rights and
remedies hereunder.
9. CONFIDENTIALITY
Other than such disclosure as may be required by law, the SFC, the Stock
Exchange or other competent authority, neither of the parties hereto shall
make any announcement or release or disclose any information concerning
this Agreement or the transactions herein referred to or disclose the
identity of the other party(ies) hereto (save disclosure to their
respective professional advisers under a duty of confidentiality) without
the written consent of the other parties hereto.
10. ASSIGNMENT
This Agreement shall be binding on and shall enure for the benefits of the
successors and assigns of the Parties but shall not be assigned by any
party hereto without the prior written consent of the other parties hereto.
11. NOTICES AND OTHER COMMUNICATION
11.1 Any notice or other communication to be given under this Agreement shall be
in writing and may be given by hand, by post or facsimile to the following
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address/number of the party hereto to be served or to such other
address/number as shall be notified by such party to the other in writing
:-
The Vendor
Address : Xxxxx 0, Xxxxxxx Xxxxxx, Xxx 000, XX000,
Xx Xx Ling San Chuer, Clear Water Bay,
Kowloon, Hong Kong
Facsimile no. : 000-0000 0000
The Purchaser
Address : Xxxx 000, 0xx xxxxx, Xxxxxxxxx Xxxxx,
00 Xxxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
Attention : Mr. Xxx Xxxx
Facsimile no. : 8610-5832 5200
The Guarantor
Address : Xxxx 000, 0xx xxxxx, Xxxxxxxxx Xxxxx,
00 Xxxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
Attention : Mr. Xxx Xxxx
Facsimile no. : 8610-5832 5200
11.2 Any such notice or communication shall be sent to the party hereto to whom
it is addressed and must contain sufficient reference and/or particulars to
render it readily identifiable with the subject-matter of this Agreement.
If so given by hand or facsimile, such notice or communication shall be
deemed received on the date of despatch and if so sent by post (or, if sent
to an address outside of Hong Kong, so sent by first class air-mail) shall
be deemed received two (2) Business Days after the date of despatch (in
case to an address in Hong Kong) or five (5) Business Days after the date
of despatch (in case to an address outside of Hong Kong).
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12. COSTS AND EXPENSES
Each party hereto shall bear her/its own legal and professional fees, costs
and expenses incurred in the negotiation, preparation and execution of this
Agreement. The stamp duty in respect of the Sale Shares shall be borne by
the Vendor and the Purchaser in equal shares.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which
when executed and delivered is an original, but all the counterparts
together constitute the same document.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and the parties hereto agree to submit to the
non-exclusive jurisdiction of the courts of Hong Kong.
15. PROCESS AGENT
The Purchaser hereby irrevocably authorizes and appoints the Purchaser's
Solicitors (or such other person(s), being resident in Hong Kong, as it may
from time to time appoint as its agent(s) and notify to the Vendor) to
accept service of all legal process arising out or in connection with this
Agreement and service on the Purchaser's Solicitors (or such substitute(s))
shall be deemed to be service on the Purchaser.
[Remainder of this page intentionally left blank]
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IN WITNESS whereof the Parties have executed this Agreement the day and
year first above written.
SIGNED by Xxx. Xxxx )
Chan Miu-xxx, Xxxxxx )
in the presence of :- )
)
)
SIGNED by Mr. Xxx Xxxx )
(Chinese Characters), the lawful attorney )
for and on behalf of FNG )
International Holdings )
Limited in the presence of :- )
SIGNED by Mr. Xxx Xxxx )
(Chinese Characters), the lawful attorney )
for and on behalf of China )
Finance Online Co. Limited )
in the presence of :- )
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SCHEDULE 1
PARTICULARS OF THE COMPANY
1. Name : Daily Growth Investment Company Limited
(Chinese Characters)
2. Registered office : Room 000, Xxxxx Xxxxxxxx, 00-00 Xxxxx'x Xxxx,
Xxxxxxx, Xxxx Kong.
3. Company Number : 025436
4. Date of Incorporation : 6 October 1971
5. Place of Incorporation : Hong Kong
6. Authorised share capital : HK$10,000,000 divided into 100,000 ordinary
shares of HK$100 each
7. Issued and paid up capital : HK$10,000,000 divided into 100,000 ordinary
shares of HK$100 each
8. Directors : XXXX XXXX Wan-sun, Xxxxx
XXX XXXX Ye, Kannie
XXX Xxxxx-wah, Xxxxxx
YEH XXXX Xxxx-sing, Xxxxx
XXXX Long-xxx, Xxxx
9. Secretary : Hang Xxxxx Secretaries Limited
10 Auditors : J Kong & Co.
11. Financial year end : 31 December
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SCHEDULE 2
REPRESENTATIONS AND WARRANTIES
General; Corporate Status
1.1 All information regarding the Company provided by or on behalf of the
Vendor and/or the Company to the Purchaser is complete, correct and true in
a material respect.
1.2 The Company has been duly incorporated and constituted, and is legally
subsisting under the laws of its place of incorporation, and there has been
no resolution, petition or order for the winding-up of the Company and no
receiver has been appointed in respect thereof, nor are any such
resolutions, orders and appointments imminent or likely.
Shareholdings and Share Capital etc.
2.1 The Sale Shares comprise a percentage (as referred to in Recital (B)) of
the issued share capital of the Company, and there are not in issue any
other shares, debentures, warrants, options or securities.
2.2 The Company is not under any contract, options, warrants or any other
obligations regarding any part of its capital, issued or unissued, or for
the issue of any shares, debentures, warrants, options, or other similar
securities.
2.3 Save as disclosed in the Disclosure Letter, the Vendor has acquired the
Shares in compliance with the articles of association of the Company and
the laws under the Companies Ordinance and is the beneficial owner of the
Sale Shares free from all liens, charges, pledges, options, contracts,
preemption rights, third party rights and equities, and incumbrances of
whatever nature and the same are freely transferable by the Vendor without
the consent, approval, permission, licence or concurrence of any third
party.
2.4 The Vendor is fully capable of entering into this Agreement and to perform
all
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obligations and duties hereunder without the consent, approval, permission,
licence or concurrence of any third party.
Business etc.
3.1 The principal business activity of the Company is security trading.
3.2 In respect of the said business being carried on, all qualifications,
registrations, licences or other approvals necessary for the proper conduct
of business have been obtained and maintained and to the knowledge of the
Vendor, all the relevant rules and regulations of the SFC and the Stock
Exchange applicable to the Company have been observed and complied with in
a material respect and no event has occurred whereby any of the same or the
renewal thereof is or likely to be thereby adversely affected, suspended or
revoked.
Accounts
4.1 The Accounts have been prepared in accordance with generally accepted
accounting practice in Hong Kong and comply with the Companies Ordinance,
and show a true and fair view of the affairs and financial position of the
Company as at, and the profits and loss of the Company for the period ended
on, the Accounts Date.
4.2 All accounting records of the Company for the past seven (7) years are in
the possession of the Company and have been properly written up, kept and
maintained in accordance with generally accepted accounting practice and
together shows a true and fair view of the affairs and financial position
of the Company.
Taxation
5.1 The Company has paid all taxes, duties and levies as the same became due
and payable and to the knowledge of the Vendor, the Company is not nor is
likely to be subject to any tax penalties.
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5.2 The Company has complied with the Inland Revenue Ordinance and has kept
proper records for tax purposes for the past seven (7) years and have filed
all tax returns, and to the knowledge of the Vendor, there is no pending
dispute with the Inland Revenue Department.
Dispute, Claims and Litigation
6. There is no claim, arbitration or litigation to which the Company is a
party or which, to the knowledge of the Vendor, is pending or threatened.
Repetition at Completion
7. All warranties and representations contained in the foregoing provisions of
this Schedule shall be deemed to be repeated immediately before completion
of this Agreement and to relate to the facts then existing.
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SCHEDULE 3
FORM OF DISCLOSURE LETTER
[DATE]
FNG INTERNATIONAL HOLDINGS LIMITED
Trident Xxxxxxxx, P.O. Box 146,
Road Town, Tortola, British Virgin Islands
Dear Sirs,
DISCLOSURE LETTER
This is the Disclosure Letter referred to in the Sale and Purchase Agreement
dated [DATE] and entered into by and between Xxxx Xxxx Miu-xxx, Xxxxxx, FNG
International Holdings Limited and China Finance Online Co. Limited (the
"Agreement"). Capitalized terms appearing in this letter shall adopt the same
meaning as defined in the Agreement.
A. GENERAL DISCLOSURES
The following matters are deemed to be disclosed by this letter:
1. AGREEMENT: All matters set out or referred to in the Agreement, including,
without limitation, all schedules and documents annexed thereto and any
other agreements entered into pursuant to, or contemplated by, the
Agreement.
2. COMPANIES REGISTRY: All matters registered against, or which would be
disclosed by a search made in respect of the Company at the Companies
Registry in Hong Kong.
3. ACCOUNTS: All matters disclosed, provided for, noted or referred to in the
audited accounts of the Company which have been provided to the Purchaser.
4. INSPECTION: All matters which have or ought reasonably to have, been
disclosed by inspection of the statutory books, books of account and
business records of
22
the Company, all of which have been made available to the Purchaser and/or
its advisers for inspection.
5. OTHERS MATTERS DISCLOSED: All matters set out or referred to in any letter,
note, schedule or other document from or provided by the Vendor, the
Company and/or their advisers and/or agents to the Purchaser and/or its
advisers and/or agents in connection with the sale and purchase of the Sale
Shares. Where any such letter, note, schedule or other document includes an
expression of opinion, no representation or warranty is given as to its
accuracy.
B. SPECIFIC DISCLOSURE
We write to disclose the following and the paragraph numbers used below
correspond to the representations and warranties as set out in Schedule 2 to the
Agreement:
Paragraphs 1.1 and 2.3
The following documents cannot be found in the company kit of the Company or
located by the Vendor or are incomplete. As such, no representation and warranty
will be made on these missing or incomplete documents :-
1. Original corporate documents from the date of incorporation to the year of
1987;
2. Original transfer documents (including instrument of transfer and bought
and sold notes) in respect of the transfer of 1 share from Xxxxx Xxxx Sing
Yeh to Shun Kin Enterprises Limited on 20th February 1987;
3. Original cancelled share certificate in the names of Xxxxx Xxxx Sing Yeh
and Shun Kin Enterprises Limited;
4. Original Application for 42,300 shares made on 24th February 1987 - 8 sets;
5. Original share certificates in respect of the allotment made on 24th
February 1987;
6. Original transfer documents (including instrument of transfer and bought
and sold notes) in respect of the transfer of 5,000 shares from Mr. Basil
X.X. Xxxx to Xxx. Xxxxx Xxxx on 26th April 1988;
7. Original share certificates in respect of the transfer made on 26th April
1988;
8. Original transfer documents (including instruments of transfer and bought
and sold notes) in respect of the transfer of 20,525 shares in respect of
the following transfer:
Mr. Basil X.X. Xxxx to Midopa Enterprises Limited - 7,610 shares on
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21.7.1988
Mrs. Xxxxx Xxxx to Midopa Enterprises Limited - 1,694 shares on 21.7.1988
Xx. Xxx Zing Ping to Midopa Enterprises Limited - 3,196 shares on 21.7.1988
Xx. Xxx Zing Ping to Billion System Co., Limited - 2,500 shares on
21.7.1988
Xx. Xxx Zing Ping to Xxx. Xxxx Zau Xxxx Xxx - 240 shares on 21.7.1988
Xx. Xxx Zing Ping to Eternal Growth Investment Ltd. - 525 shares on
21.7.1988
Xx. Xxx Xxx Xxxx to Eternal Growth Investment Ltd. - 4,760 shares on
21.7.1988
9. Original share certificates in respect of the transfer made on 21.7.1988;
10. Original transfer documents (including instruments of transfer and bought
and sold notes) in respect of the transfer of 7,715 shares in respect of
the following transfer:
Xx. Xxxxx Xxxx to Ho Chi Xxxx Xxxxxxx - 2,000 shares on 29.7.1988
Xx. Xxxxx Xxxx to Billion System Co., Ltd. - 2,500 shares on 29.7.1988
Xx. Xxxxx Xxxx to Xxxxxx Xxxx - 545 shares on 29.7.1988
Shun Kin Ent. Ltd. to Xxxxxx Xxxx - 195 shares on 29.7.1988
Xxxxxx Xxx to Xxxxxx Xxxx - 260 shares on 29.7.1988
Xx. Xxxxx Xxxx to Eternal Growth Inv. Ltd. - 2,215 shares on 29.7.1988
11. Original share certificates in respect of the transfer made on 29.7.1988
12. Original transfer documents (including instrument of transfer and bought
and sold notes) in respect of the transfer of 2,000 shares in respect of
the transfer from Xxxxxx Xxx to Xxxx Oi Xxx, Xxxxx on 17.3.1989;
13. Original share certificates in respect of the transfer made on 17.3.1989;
14. Form X(ii) or Form (IXA) showing the resignation of Xx. Xxxxxx Xxxx as the
director of the Company made on 1.4.1989;
15. Original transfer documents (including instruments of transfer and bought
and sold notes) in respect of the transfer of 2,000 shares in respect of
the following transfer:
Xxxx Oi Xxx Xxxxx to Xxxxxx Xxxx - 1,000 shares on 31.5.1990
Xxxx Oi Xxx Xxxxx to Xxxxx Xxx Xxx - 500 shares on 31.5.1990
Xxxx Oi Xxx Xxxxx to Xxx Xxxx Im - 500 shares on 31.5.1990
16. Original share certificates in respect of the transfer made on 31.5.1990
17. Original transfer documents (including instrument of transfer and bought
and sold notes) in respect of the transfer of 2,000 shares in respect of
the following transfer:
Xxxxxxx Xx to Zone Bo Ltd. - 2,000 shares on 19.7.1990
18. Original share certificates in respect of the transfer made on 19.7.1990
19. Copy of Consent to act as director of the Company by Xx. Xxx X. Xxxx on
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9.12.1992
20. A letter dated 10th October 1994, from King Cause Limited and Asian Capital
Partners (HK) Limited reporting that 10 share certificates for 50,000
shares have been mislaid and requesting 2 share certificates be issued to
them
21. Original transfer documents (including instrument of transfer and bought
and sold notes) in respect of the transfer of 50,000 shares in respect of
the following transfer:
King Cause Xxx.xx Billion System Co. Ltd.- 5,000 shares on 12.12.1994;
King Cause Ltd. to Eternal Growth Investment Ltd.- 7,500 shares on
12.12.1994;
King Cause Ltd. to Midpoa Enterprises Limited- 12,500 shares on 12.12.1994;
King Cause Ltd. to Shun Kin Ent. Limited- 17,500 shares on 12.12.1994;
King Cause Ltd. to Wang Zau Xxxx Xxx- 2,500 shares on 12.12.1994;
King Cause Ltd. to Xxxxx Xxx Xxx- 499 shares on 12.12.1994;
King Cause Ltd. to Chu Ping Im - 500 shares on 12.12.1994
King Cause Ltd. to Xxxxxx Xxxx- 2,000 shares on 12.12.1994;
King Cause Ltd. to Zone Bo Limited- 2,000 shares on 12.12.1994;
King Cause Ltd. and Asian Capital Partners (HK) Limited to Xxxxx Xxx Xxx- 1
share on 12.12.1994;
22. Original share certificates in respect of the transfer made on 12.12.1994;
23. Original Declaration of Trust given by King Cause Limited and Asian Capital
Partners (HK) Limited on 9.12.1992;
24. Copy of Form D2 and Consent to act reporting the appointment of Xx. Xx Xxx
Xxxx as the director of the company;
25. Original transfer documents (including instrument of transfer and bought
and sold notes) in respect of the transfer of 5,000 shares in respect of
the following transfer:
Billion System Co. Ltd. to Zone Bo Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Eternal Growth Inv. Ltd.- 500 shares on
15.12.2000;
Billion System Co. Ltd. to Midopa Enterprises Ltd.- 1,250 shares on
15.12.2000;
Billion System Co. Ltd. to Shun Kin Enterprises Ltd.- 1,750 shares on
15.12.2000;
Billion System Co. Ltd. to Xxxxx Xxx Xxx- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Chu Ping Im- 500 shares on 15.12.2000;
26. Original share certificates in respect of the transfer made on 15.12.2000;
27. Original Share Certificate of Xxxx Xxxxxxx;
28. Original Board Minutes for approving the share transfer from Zone Bo
Limited to Xxxx Xxxx made on 22.06.2007;
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29. Share Certificate of Xxxx Xxxx in respect of 5,000 shares;
30. Original Consent to Short Notice dated 16.03.1987 - Xxxxxx Xxx Wang Vung
Sing (with the signature of Xxxxxx missing); and
31. Original Consent to Short Notice for 2005 AGM dated 30.05.2005 (missing
signatures from Midopa Enterprises Limited, Xxxx Xxxx Miu Xxx Xxxxxx, Xxx
Xxxx Im, Xxxxx Xxx Xxx).
Yours sincerely,
------------------------------------
Xxxx Xxxx Miu-xxx, Xxxxxx
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