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Exhibit 10.21
THIS ASSET PURCHASE AGREEMENT is made the 18 day of February one thousand
nine hundred ninety-eight (the "Agreement")
between:
XXXXXX-FIELD HEALTH PRODUCTS, INC., a limited company duly organized and
existing under the laws of the State of Delaware, having its registered office
at 000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000, Xxxxxx Xxxxxx of America, in this
matter duly represented by Xx. Xxxxx Xxxxxxxx in accordance with its Articles of
Association ("Xxxxxx-Field");
AND
PT. DHARMA POLIMETAL, a limited liability company duly organized and existing
under the laws of the Republic of Indonesia and having its principal place of
business at Xxxxx Xxxx Xxxxxx Xx. 00 Xxxxxxxx, Xxxxxxxxx, Xxxxxxxxx, in this
matter duly represented by Xx. Xxxxx Xxxxxxxx Negara, its President Director,
and Iwan Dewono Budiyuwono, a Director, in accordance with its Articles of
Association ("Dharma Polimetal")
AND
XXXXX XXXXXXXX NEGARA, a private person, Indonesian citizen, residing in
Jakarta, Billi & Xxxx Xxxxx XX0/00, XX.000/XX.0x0, Xxxxxxxxx Pondok Kelapa,
Kecamatan Xxxxx Sawit, Jakarta Timur, Indonesia, holder of DKI Jakarta Identity
Card Number 5707.11701/2305590238 ("Joppy")
AND
IWAN DEWONO BUDIYUWONO, a businessman, Indonesian citizen, residing in Jalan
Tulodong Bawah III/42, Senayan, Kebayoran Baru, Jakarta Selatan, Indonesia,
holder of DKI Jakarta Identity Card Number 09.5307.021260.0161 ("Iwan")
WHEREAS
A. It is the intention of the Parties that PT. Dharma Medipro (the
"Company"), a limited liability company duly established under the laws of
the Republic of Indonesia and having its domicile at Serang, shall own,
operate and manage the wheelchair assets of Dharma Polimetal as part of
its own health care related businesses and that Xxxxxx-Field will become a
direct shareholder in the Company, however the Parties acknowledge that
the corporate structure of the Company will have to be reorganized prior
to the transaction contemplated by this Agreement being completed.
B. All the issued capital in Dharma Polimetal is presently registered in the
following names:
Xxxxx Xxxxxxxx Negara 4896 shares
Iwan Dewono Budiyuwono 125 shares
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C. All the issued capital in the Company is presently registered in the
following names:
Xxxxx Xxxxxxxx Negara 1,053 shares
Dharma Polimetal 1,097 shares
X. Xxxxxx-Field, Dharma Polimetal, Joppy and Iwan (hereinafter collectively
referred to as the "Parties" and singly as a "Party") have agreed to
restructure the assets and various business of Dharma Polimetal and
corporate structure of the Company. Subsequent to the restructure of the
Company it shall own, operate and manage the Wheelchair Assets and foreign
entities shall be entitled to be shareholders therein (the "Everest and
Xxxxxxxx Company")
X. Xxxxx and Iwan have agreed that their rights as shareholders in Dharma
Polimetal and their indirect and direct interests in the Company, shall be
regulated by the provisions of this Asset Purchase Agreement, subject to
the prevailing laws of the Republic of Indonesia, and they will personally
use their best endeavours to ensure the spirit and intention of this
Agreement is fulfilled.
X. Xxxxxx-Field, or its nominee in writing has agreed to acquire, subject to
Dharma Polimetal and the Company obtaining all approvals required by law
in the Republic of Indonesia including without limitation approval from
the Relevant Authorities and the shareholders of Dharma Polimetal and the
Company, indirect ownership of the assets of the wheelchair related
business of Dharma Polimetal (the "Wheelchair Assets") via Xxxxxx-Field's
direct shareholding in the Everest and Xxxxxxxx Company.
G. Subject to the conditions herein contained, Dharma Polimetal has agreed to
assign to the Company and the Company has agreed to accept, the assignment
from Dharma Polimetal of the Wheelchair Assets, and Joppy and Iwan have
agreed to cause Dharma Polimetal to assign the Wheelchair Assets to the
Company, in consideration of the Purchase Price of which US$ 3,500,000
(three million and five hundred United States Dollars) is paid hereunder.
The precise amount of the Purchase Price will be mutually agreed at a
later date by the Parties.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions: In this Agreement, unless the subject or context otherwise
requires, the following words and expressions shall have the meanings
respectively assigned below to each such word or expression:
"Auditors" such firm of internationally known Chartered
Accountants or Certified Public Accountants,
as the case may be, as shall be appointed the
auditors for the time being of Dharma
Polimetal, the Company and the Everest and
Xxxxxxxx Company respectively;
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"Articles of Association
of the Company" the Articles of Association of the Company as
set out in Appendix B, and as to be amended
pursuant hereto, as the context requires;
"Board" the Board of Directors of the Company, the
Everest and Xxxxxxxx Company and/or Dharma
Polimetal as the context requires;
"Directors" the directors for the time being composing the
Board of Directors of the Company, the Everest
and Xxxxxxxx Company or Dharma Polimetal as
the context requires;
"Relevant Authorities" any Indonesian government institutions or
agencies which have authority over the
establishment and operations of the Company,
the Everest and Xxxxxxxx Company and Dharma
Polimetal, respectively, and the matters
provided by this Agreement;
1.2 Interpretation:
(i) Any reference to statutory provisions shall include such provisions as
from time to time are modified or re-enacted so far as such modification
or re-enactment applies or is capable of applying to any transactions
entered into hereunder.
(ii) References to Clauses, paragraphs, Schedules and Appendices are to
Clauses, paragraphs, Schedules and Appendices of this Agreement.
(iii) The headings are for convenience only and shall not affect the
interpretation hereof.
(iv) Unless the context otherwise requires or permits, references to the
singular number shall include references to the plural number and vice
versa, and references to natural persons shall include bodies corporate
and there shall be no distinction as to gender.
(v) References to "US$" and "United States Dollars" are to the lawful
currency of the United States of America.
2. CONDITIONAL AGREEMENT
2.1 This Agreement is conditional upon:
(i) the restructuring of the Company and Dharma Polimetal in accordance
with the provisions of Clause 3; and
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(ii) the receipt by the Company, the Everest and Xxxxxxxx Company, Dharma
Polimetal and Xxxxxx-Field, respectively, of all material approvals,
permits and licences from the Relevant Authorities necessary for the
Company, the Everest and Xxxxxxxx Company, Dharma Polimetal and
Xxxxxx-Field each to carry on its business and perform the obligations as
contemplated herein;
(iii) the Board approval of the transaction contemplated herein;
(iv) the approval of the shareholders of each of Dharma Polimetal, the
Everest and Xxxxxxxx Company and/or the Company pursuant to the Articles
of Association of each and Law No. 1 of 1995 on Limited Liability
Companies; and
(v) the mutual written agreement of the Parties in regard to the level of
shareholding of each in the Everest and Xxxxxxxx Company after it has been
restructed and the Purchase Price to be paid by the Company, or the
Everest and Xxxxxxxx Company as the case may be, for the Wheelchair
Assets.
2.2 If the conditions specified in Clause 2.1 are not fulfilled or waived in
writing within six (6) months of the date hereof (or by such later date as
the Parties may agree in writing, in the event the Parties in good faith
agree on an alternative approach or approaches to the transactions
contemplated hereby which shall have essentially the same economic effect)
then this Agreement shall ipso facto cease and determine, and neither of
the Parties shall have any claim against the other for costs, damages,
compensation or otherwise, except that Xxxxxx-Field shall be entitled to
be reimbursed by Dharma Polimetal within 10 (ten) days from the date this
Agreement was determined by Xxxxxx-Field for all monies which it has
advanced, plus any outstanding interest thereon, to Dharma Polimetal
pursuant to this Agreement without any deduction or set off whatsoever.
2.3 On or before 20 February 1998, in advance of the conditions set out herein
being satisfied and the approval of the shareholders, Directors and
Commissioners of Dharma Polimetal and the Company respectively and the
Relevant Authorities, Xxxxxx-Field shall advance to Dharma Polimetal US$
3,500,000 (three million five hundred United States Dollars) against the
future assignment and transfer of the Wheelchair Assets by Dharma
Polimetal to the Company, by way of deposit for the Purchase Price of a
direct interest in the shareholding of the Company after that Company has
acquired the Wheelchair Assets (the "Advance").
2.4 The Purchase Price of the Wheelchair Assets shall be calculated as soon as
practicable on terms and conditions to be agreed between the Parties in
writing, which shall include consideration of the net book value of the
Wheelchair Assets which shall be determined based on the latest December
1997 year-end audited balance sheet of Dharma Polimetal, subject to
adjustment based upon the audited balance sheet of Dharma Polimetal as at
31 June 1998 and subject to adjustment based upon such verification
procedures as Xxxxxx-Field may reasonably determine.
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2.5 Dharma Polimetal's obligation to sell all of the Wheelchair Assets and the
reimbursement of the Advance pursuant to this Clause 2, shall be secured
to Xxxxxx-Field by Joppy and Iwan's pledge to Xxxxxx-Field all of their
shares in Dharma Polimetal pursuant to a pledge agreement in customary
form and otherwise to be agreed by the Parties in substantially the same
form as attached as Exhibit A or such alternative security as Xxxxxx-Field
may reasonably require.
2.6 Dharma Polimetal shall pay to Xxxxxx-Field the sum of US$ 30,000 (thirty
thousand United States Dollars) each calendar month commencing from the
first monthly anniversary of the date of this Agreement being the 20th
(twentieth) day of each month in consideration of the Advance having been
made by Xxxxxx-Field (which sum shall be equal to an interest rate of
10.3% per annum of the Advance) until such time as the Advance and any
outstanding interest thereon has been repaid in full to Xxxxxx-Field
pursuant to Clause 2.2 or the advance has been applied against the
purchase contemplated in Clause 2.4. In the event less than the amount of
the Advance is required to match the Purchase Price pursuant to Clause 2.4
then Xxxxxx-Field shall be entitled to be reimbursed the balance and in
the event there is a shortfall Xxxxxx-Field shall be required to
contribute further funds, proportionate to the interest of Xxxxxx-Field in
the Everest and Xxxxxxxx Company.
2.7 Dharma Polimetal shall be required to deduct US$ 2.50 (two dollars and
fifty United States cents) from each wheelchair billed to Xxxxxx-Field
until such time as this Agreement either expires or is terminated
commencing from the date of this Agreement. The total reduction on the
unit price of each wheelchair shall therefore be US$ 6.50 six dollars and
fifty United States cents).
3. RESTRUCTURING OF DHARMA POLIMETAL AND THE COMPANY
3.1 Joppy and Iwan hereby warrant to Xxxxxx-Field that they will keep
Xxxxxx-Field fully informed of the financial condition of Dharma Polimetal and
the Company, or Everest and Xxxxxxxx Company as the case may be, in all material
respects at all times, and that Dharma Polimetal and the Company are duly
incorporated and existing, and that the issued capital of each is free from any
encumbrances except those encumbrances specifically listed in Appendix C.
3.2 As soon as practicable after the execution of this Agreement, Joppy and
Dharma Polimetal, shall cause the Company:
(a) seek approval from Badan Koordinasi Penanaman Modal to convert the
status of the Company to a foreign investment company;
(b) to amend its Articles of Association so as to restate same in a form
to be agreed by the Parties and which is consistent with the terms of this
Agreement and to insure that the Company conforms in all material aspects
with this Agreement including without limitation, approval from the
Relevant Authorities to enable Xxxxxx-Field to become a direct majority
shareholder in the Company;
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(c) take such steps as may be necessary to vary, transfer or otherwise
revise the Board of Directors and Commissioners of the Company to conform
with the respective provisions contained in this Agreement; and
(d) make such other changes as may be necessary or desirable to properly
reflect the provisions and intent of this Agreement and seek all necessary
material approvals from the Relevant Authorities.
4. COMPANY ACTIONS REQUIRING APPROVAL FROM XXXXXX-FIELD
The Parties agree and shall procure that the Company and Dharma Polimetal
each shall not, without the prior written approval of Xxxxxx-Field:
(i) to purchase, sell or by any other way relinquish rights to immovable
assets, or to encumber any assets, other than in the ordinary course of
business;
(ii) make any distribution of profits by way of dividend;
(iii) borrow money or make loans (but not including credit facilities
already obtained or granted) except in the ordinary course of business;
(iv) dispose of any asset with a book value in excess of US$1,000 (one
thousand United States Dollars), other than in the ordinary course of
business, except where such asset relates to the non-wheelchair business
of Dharma Polimetal;
(v) increase, reduce or cancel its authorized or issued share capital or
issue or grant any option over its unissued share capital;
(vi) amend its Articles of Association;
(vii) increase or reduce the number of members comprising its Board of
Directors or Board of Commissioners;
(viii) enter into a scheme of reconstruction or amalgamation or commence
voluntary liquidation; or
(ix) approve its annual budget (but if no approval of the annual budget is
reached within fourteen (14) days, then the annual budget shall be the
same as the budget for the previous financial year).
(x) bind the Company or Dharma Polimetal as guarantor; and
(xi) establish new businesses, except where such new business relates to
the non-wheelchair business of Dharma Polimetal.
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5. TRANSFER RESTRICTIONS ON DHARMA POLIMETAL AND COMPANY SHARES
Neither Dharma Polimetal nor Joppy shall not transfer any of its or his
shares or other securities in the Company and neither Joppy nor Iwan shall
transfer their shares in Dharma Polimetal, otherwise than in accordance with
the provisions hereof and neither shall otherwise sell, charge, encumber or
dispose of all or any part of their interest in their shares of Dharma Polimetal
or the Company unless the written consent of Xxxxxx-Field is first had and
obtained.
6. DURATION AND TERMINATION
This Agreement shall take effect without limit in point of time but, upon
the transfer by Dharma Polimetal of the entirety of its shares in the Company to
Xxxxxx-Field, or its nominee, and the acquisition by Xxxxxx-Field, or its
nominee, of the Wheelchair Assets, each Party shall be released from all its
obligations hereunder (unless otherwise provided herein). The Parties each waive
any provision of applicable law which may be construed to require judicial
intervention or approval for the termination of this Agreement under any
circumstances, including Articles 1266 and 1267 of the Civil Code of Indonesia.
7. CONFIDENTIALITY
7.1 All communications between the Parties and the Company or any of them, and
all information and other material supplied to or received by any of them from
the others, which is either marked "confidential" or is by its nature intended
to be exclusively for the knowledge of the recipient alone, and any information
concerning the business transactions or the financial arrangements of the
Parties and the Company or of any person with whom any of them has a
confidential relationship with regard to the matter in question, which comes to
the knowledge of the recipient shall be held in strict confidence unless or
until the recipient can reasonably determine (i) that it is or part of it is, in
the public domain, whereupon, to the extent that it is public, this obligation
shall cease or (ii) it is required to be furnished to the bankers or investors
or potential investors of or in any of the Parties or to any regulatory agencies
involving any of the Parties, and in such cases, this obligation shall cease
only to the extent required under the respective circumstances.
7.2 Joppy and Iwan shall procure the observance of the abovementioned
restrictions by Dharma Polimetal and the Company and shall take all reasonable
steps to minimize the risk of disclosure of confidential information, by
ensuring that only their employees, directors, managers and those employees of
Dharma Polimetal and the Company whose duties require them to possess any of
such information shall have access thereto, and that they shall be instructed to
treat the same as confidential.
7.3 The obligations contained in this Clause shall endure, even after the
termination of this Agreement, without limit in point of time except and until
any confidential information enters the public domain as set out above.
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8. NOTICE AND GENERAL MATTERS
A11 notices, demands or other communications required or permitted to be
given or made hereunder shall be in writing and delivered personally or sent by
fax addressed to the intended recipient thereof at its address set out below or
at its fax number set out below (or to such other address or fax number as any
Party may from time to time duly notify the others). Any such notice, demand or
communication shall be deemed to have been duly served immediately. The
addresses and fax numbers of the Parties for the purposes of this Agreement are:
(i) Xxxxxx-Field Health Products, Inc.
Attn: Xx. Xxxxx Xxxxxxxx
Address: 000 Xxxxx Xxxxx
Xxxx Xxxxxxxx, XX 1788
United States of America
Tel. No.: (000) 000 0000
Fax No.: (000) 000 0000
(ii) PT. Dharma Polimetal
Address: Xx. Xxxx Xxxxxx Xx. 00
Xxxxxxxx, Xxxxxxxxx
Xxxx Xxxxx
Tel. No.: (00) 0000000
Fax No.: (00)0000000
(iii) Xxxxx Xxxxxxxx Negara
Address: Billi & Moon Block CH4/14,
RT.006/RW.010.
Kelurahan Pondok Kelapa,
Kecamatan Xxxxx Sawit, Jakarta Timur
(iv) Iwan Dewono Budiyuwono
Address: Jl. Tulodong Bawah III/43
Senayan, Kebayoran Barn
Jakarta Selatan
8.2 No remedy conferred by any of the provisions of this Agreement is intended
to be exclusive of any other remedy which is otherwise available at law, in
equity, by statute or otherwise, and each and every other remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law, in equity, by statute or
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otherwise. The election of any one or more of such remedies by any of the
Parties hereto shall not constitute a waiver by such Party of the right to
pursue any other available remedies.
8.3 In the event of any inconsistency between the provisions of this Agreement
and the Articles of Association of Dharma Polimetal or the Company, the
provisions of this Agreement shall, as between the Parties, prevail and the
Parties shall cause the Articles of Association of Dharma Polimetal or the
Company to be amended to conform herewith to the extent permitted by law and
practice. Any other matters not specifically provided for in this Agreement
shall be mutually agreed in writing by the Parties and this Agreement shall
prevail over the terms of any previous discussions or written agreements to the
extent they conflict with terms of this Agreement or any written amendment
hereto.
8.4 Save as expressly provided in this Agreement, the respective rights and
obligations of the Parties hereto shall not be assignable or transferable except
to a statutory successor in interest of a Party to this Agreement or otherwise
with the consent of the other Party, with the express exception that
Xxxxxx-Field shall be entitled to assign or transfer any of its rights and
obligations hereunder.
8.5 The Parties shall bear their own costs and expenses in respect of the
preparation and negotiation of this Agreement, but the Parties shall take such
steps as may be in their power to procure that Dharma Polimetal and the Company,
to the extent permitted by law, reimburses them for any costs and expenses
incurred by them in connection with the reorganization of Dharma Polimetal and
the Company.
8.6 The Parties shall execute and do and take such steps as may be in their
power to procure that all other necessary persons, if any, execute all such
further documents, agreements, deeds, acts and things as may be required so that
the full extent may be given to the provisions of this Agreement.
8.7 If any provision of this Agreement or part thereof is rendered void, illegal
or unenforceable by any legislation to which it is subject, it shall be rendered
void, illegal or unenforceable to that extent and no further unless the part
rendered void, illegal or unenforceable goes to the essence of this Agreement
and the Parties are unable to agree on any adequate substitute provision which
is not void, illegal or unenforceable.
8.8 Nothing contained in or relating to this Agreement shall constitute or be
deemed to constitute a partnership between the Parties hereto.
8.9 Both parties will try to amicably settle any dispute that may arise. The
Parties agree that any dispute arising out of or in connection of this
Agreement, including without limitation any question regarding its existence,
validity, termination, or the rights or obligations of either of them that
cannot be settled amicably within sixty (60) days after it has been first raised
in writing (unless further extended by Parties) shall be settled by arbitration
under the Arbitration Rules of UNCITRAL (the "Rules"). The arbitration shall be
conducted in Singapore by 3 (three) arbitrators appointed in accordance with the
Rules. In the absence of agreement on the third arbitrator, he or she shall be
appointed by the International Chamber of Commerce, Singapore. Any notice of
arbitration, response or other communications given to or by a Party to the
arbitration shall be given and deemed received
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as provided in the Rules. The costs of the arbitration shall be determined and
paid by the Parties to the arbitration as provided in the Rules. In order to
further ensure the final and binding nature of the arbitral award, the Parties
expressly agree to waive to the extent permitted by applicable law the following
to the extent otherwise applicable: Section 641 of the Reglement op de
Rechtsvordering ("R.V.") and any rights they may have under Article V.(I) and
Article VI of the 1958 New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, so that there will be no appeal to any court from the
decision of the arbitral tribunal. No Party, as against the other, shall be
entitled to commence or maintain any action in a court of law upon any matter in
dispute arising from or in relation to this Agreement except for the enforcement
of an arbitral award made in accordance with this Clause. During the period of
the submission to arbitration and thereafter until the publication of the
arbitral award, the Parties shall, except in the event of termination, continue
to perform all their obligations hereunder. The provisions contained in this
Article shall survive the termination and/or expiration of this Agreement.
8.10 This Agreement shall be governed by and construed in accordance with the
laws in force in the Republic of Indonesia;
8.11 This Agreement may consist of a number of counterparts which taken together
constitute one and the same instrument.
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IN WITNESS WHEREOF this Agreement has been entered into on the date stated
at the beginning.
XXXXXX-FIELD HEALTH PRODUCTS, INC.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xx. Xxxxx Xxxxxxxx
Title:
/s/ Xxxx Xxxxx Xxxxx
-----------------------------------
Witness
PT. DHARMA POLIMETAL
[SEAL]
By: /s/ Xxxxx Xxxxxxxx Negara
--------------------------------
Name: Xxxxx Xxxxxxxx Negara
Title: President Director
By: /s/ Iwan Dewono Budiyuwono
--------------------------------
Name: Iwan Dewono Budiyuwono
Title: Director
XXXXX XXXXXXXX NEGARA
/s/ XXXXX XXXXXXXX NEGARA
-----------------------------------
00
XXXX XXXXXX XXXXXXXXXX
/s/ IWAN DEWONO BUDIYUWONO
-----------------------------------
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EXHIBIT A
PLEDGE OF SHARES AGREEMENT
THIS PLEDGE OF SHARES AGREEMENT (the "Agreement") is entered into this 18 day of
February, 1998
BETWEEN:
(1) XXXXXX-FIELD HEALTH PRODUCTS INC., a limited liability company duly
organized and existing under the laws of the State of Delaware, with its
registered office at 000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000 (the
"Pledgee"); and
(2) XX. XXXXX XXXXXXXX NEGARA, a private person, Indonesian citizen, residing
in Jakarta, Billi & Xxxx Xxxxx XX0/00, XX.000/XX.000, Xxxxxxxxx Pondok
Kelapa, Kecamatan Xxxxx Sawit, Jakarta Timur, Indonesia, holder of DKI
Jakarta Idenity Card Number 5707.11701/2305590238, and
XX. XXXX DEWONO BUDIYUWONO, a private person, Indonesian citizen, residing
in Jalan Tulodong Bawab III/42, Senayan, Kebayoran Baru, Jakarta Selatan,
Indonesia, holder of DKI Jakarta Identity Card Number 09.5307.021260.0161
(collectively known as the "Pledgors");
WHEREAS:
A. PT. DHARMA POLIMETAL is a limited liability company duly organized and
existing under the laws of the Republic of Indonesia and having its
principal place of business at Xxxxx Xxxx Xxxxxx Xx. 00 Xxxxxxxx,
Xxxxxxxxx, Xxxxxxxxx ("Company").
B. The Pledgors are the registered holders of all issued shares in the total
issued capital of the Company.
C. PT. Dharma Medipro is a limited liability company duly organized and
existing under the laws of the Republic of Indonesia and having its
domicile at Serang ("Medipro"), the issued share capital of which is held
entirely by the Company and Xx. Xxxxx Kurniadi Negara.
D. The Pledgors wish to approve the transfer the wheelchair assets of the
Company to Medipro, subject to the terms and conditions of the Asset
Purchase Agreement.
E. The Pledgors and the Pledgee have entered into an Asset Purchase Agreement
on 18 February 1998 whereby the Pledgee has agreed with the Pledgors that
in consideration of the advance payment of US$ 3,500,000 (three million
five hundred United States Dollars), to the Company being part of the
purchase price
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for direct equity in Medipro after Medipro has been restructured in
accordance with the said Asset Purchase Agreement, the Company will
transfer its wheelchair assets to Medipro and the Pledgee will become a
direct equity shareholder in Medipro.
F. The Pledgee would not have advanced moneys to the Company under the Asset
Purchase Agreement without security being given by the Pledgors, including
but not limited to the security established by this Agreement.
G. Pursuant to the Asset Purchase Agreement, the Pledgors agreed to pledge to
the Pledgee all of the shares held by them, and to be held by them, in the
Company, in order to secure repayment of all amounts advanced by the
Pledgee to the Company under the Asset Purchase Agreement and any
agreements supplemental or ancillary thereto (such amounts, whether now or
hereafter existing, including but not limited to the principal hereinafter
collectively referred to as the "Debt").
OPERATIVE TERMS AND CONDITIONS:
Article 1
PLEDGE OF SHARES AND SECURITY
1.1 The Pledgors hereby irrevocably and unconditionally agree with the Pledgee
that effective from the date hereof, the Pledgors pledge and surrender to
the Pledgee all of the shares owned by the Pledgors in the Company, being
the total issued share capital of the Company and the Pledgors further
irrevocably and unconditionally covenant and agree to immediately pledge
and surrender to the Pledgee any additional shares, rights or entitlements
which they may acquire in the Company at any time in the future by way of
further security for repayment of the entire Debt (the "Shares").
1.2 The Pledgors undertake and agree to cause all share certificates issued to
the name of the Pledgors in respect of any shareholding or other financial
interests in the Company which they may each hereafter acquire to be
delivered by the Board of Directors of the Company to the Pledgee, or a
custodian nominated by the Pledgee, for safekeeping and security purposes.
1.3 This Agreement forms an integral part of the Asset Purchase Agreement and
any other agreements supplemental or ancillary thereto. Such agreements
would not have been entered into, nor monies advanced by the Pledgee to
the Company under the Asset Purchase Agreement without the Pledgors having
entered into this Agreement with the Pledgee. Therefore the pledge made
hereunder and the power of attorney hereunder referred to shall be
irrevocable for so long as and any part of the Debt remains outstanding
under the terms of the Asset Purchase Agreement.
1.4 The Pledgors shall immediately notify the Company and the directors and
responsible officers thereof of this Agreement, and shall instruct such of
its
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directors and officers to furnish the Pledgee with copies of all notices
or other correspondence which may be sent or given to any shareholder
including without limitation all notices of general and extraordinary
shareholders' meetings, notices of dividends, calls for subscription
payments, annual or other periodic reports and financial statements or any
other notice with respect to any shareholder of the Company.
1.5 This Agreement shall have immediate force and effect from the date of
execution by the Parties.
Article 2
SUBSCRIPTION RIGHTS
The Pledgors shall make all subscription payments or other payments to the
Company or any other party as the Company's Board of Directors shall direct and
shall hold the Pledgee harmless from liability caused by the Pledgors' failure
to do so.
Article 3
REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 The Pledgors hereby represent and warrant to the Pledgee that the Shares
shall not be subject to any other pledge, lien, charge or encumbrance of
any kind whatsoever and that they are each the true and rightful owner of
the Shares and now have and shall at all times hereafter have full power
and authority over the Shares and to surrender and deliver share
certificates for the Shares to the Pledgee.
3.2 During the term of this Agreement the Pledgors shall not without prior
written consent of the Pledgee (i) sell or otherwise transfer the Shares,
(ii) grant or allow to be created any lien, charge or other encumbrance of
any kind over or in respect of the Shares, (iii) subject, or attempt to
subject, the Shares to any other pledge, or (iv) cause any further shares
to be issued in the Company.
3.3 The Pledgors shall cause the pledge hereby created over the Shares to be
recorded in the special register of charges, pledges and other
encumbrances over share capital which is kept and maintained by each of
the Company.
Article 4
UNCONDITIONAL AGREEMENT
The pledge created by this Agreement, the delivery of share certificates
covering the Shares at the appropriate time, and the obligations of the Pledgors
hereunder, are unconditional and shall not be affected by any invalidity or
unenforceability of this Agreement or any provision hereof, or any agreement
supplemental or ancillary thereto. The liability, responsibilities and rights
and obligations of each Pledgor are joint and several.
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Article 5
ENFORCEMENT SALE
5.1 In the event that:
(a) any of the Pledgors default upon their responsibilities and
obligations as defined in the Asset Purchase Agreement or any
agreement executed by the Pledgors pursuant to the Asset Purchase
Agreement; or
(b) any event occurs which, upon the giving of notice or the lapse of
time or both, would constitute an event of default as described in
paragraph (a).
the Pledgee may take whatever action it, in its sole and absolute
discretion, deems necessary to protect its rights hereunder including, but
not by way of limitation, selling or otherwise transferring the Shares to
any person or entity (including itself) by private in good faith
transaction, after due solicitations of interest from prospective buyers,
public sale, or by any other type of sale pursuant to the laws of the
Republic of Indonesia at whatever time, location and price, on such terms
and conditions as the Pledgee may in its reasonable opinion deem to be
appropriate.
5.2 If the Pledgee takes any action pursuant to Article 5.1, then the Pledgors
unconditionally and irrevocably undertakes, promises and covenants to
cooperate fully with the Pledgee and any third parties in respect of such
action and that it will not take any action to challenge the validity of
the Pledgee's actions or to limit or diminish the rights of the Pledgee in
respect of such matters.
The Pledgors hereby irrevocably and unconditionally agree to forego and
waive all rights to assert any interest, claim or right of redemption with
respect to the Shares against any purchaser or other transferee, whether
or not such interest, claim, or right may exist under the laws or
regulations of the jurisdiction where the Shares are situated or any other
jurisdiction.
5.3 Upon the occurrence of such sale and transfer, the Pledgors shall be
entitled to receive the balance of any net proceeds from the sale of the
Shares in excess of the Debt and conversely in the event there is a
shortfall in the said net proceeds then the Pledgors shall be obligated to
make good the deficiency and interest shall accrue on the outstanding
amount at the rate of 10.3% (ten point three percent) per annum until such
time as the Pledgee receives full satisfaction of the Debt.
Article 6
POWER OF ATTORNEY
In order to ensure and protect the Pledgee's rights pursuant to the Asset
Purchase Agreement, including without limitation, the Pledgee's rights under
Article 5 of this Agreement, the Pledgors hereby irrevocably and
unconditionally appoint each of the directors of the Pledgee and / or its
attorneys to be its lawful attorney, with full right of
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9.2 Variation
The terms of this Agreement may only be amended, waived, discharged or
terminated by instrument in writing signed by each of the Pledgors and the
Pledgee.
9.3 Non-waiver
Failure by the Pledgee to exercise any and all of its rights hereunder, or
any partial exercise thereof, shall not act as a waiver of such rights,
granted hereunder or by general law.
9.4. Severability
If one or more of the provisions hereof shall be invalid, illegal or
unenforceable in any respect under any applicable law or decision, the
validity, legality and enforceability of the remaining provisions
contained herein shall not be effected or impaired in any way. The
Pledgors shall in any such event execute such additional documents as the
Pledgee may request in order to give effect to any provision hereof which
is determined to be invalid, illegal or unenforceable.
9.5 Governing Law
This Agreement and the performance hereof will be governed by the laws of
the Republic of Indonesia, without regard to its conflict of laws rules
and the forum for the resolution of any dispute in respect of this
Agreement shall be Singapore pursuant to arbitration as provided under the
UNCITRAL rules as set out in the Asset Purchase Agreement.
9.6 Language
This Agreement is executed in a text using the English language which
shall be the governing language despite translation into any other
language. If another language translation of this Agreement be required
for any purpose whatsoever, the parties agree that the Pledgee shall
provide such translation prepared by a sworn translator at the Pledgors's
cost, which shall not be contested by the Pledgors save for manifest
error.
9.7 Assignment
The Pledgee may assign or transfer any of its rights or obligations
hereunder, or any part thereof, to any party, provided, that upon such
assignment or transfer it shall thereafter give written notice thereof to
the Pledgors and to the Company, to be registered in the Company's
register of shareholders and special register of shares.
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The Pledgors shall not assign or transfer any of their rights or
obligations hereunder, or any part thereof to any party without the prior
written consent of the Pledgee.
9.8 Headings
The headings of the Sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof or
affect in any way the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF the parties hereto have executed and entered into this
Agreement on the date set out above.
XXXXX XXXXXXXX NEGARA
[Graphic omitted]
/s/ XXXXX XXXXXXXX NEGARA
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/s/ Lara Xxxxxxxxxx Xxxxx
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Signature of Witness
Lara Xxxxxxxxxx Xxxxx
c/ Makarim & Tacra S.
Summitmasi
Ji. Jend. Sudirman, Jakarta.
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Full name and address of Witness
IWAN DEWONO BUDIYUWONO
/s/ IWAN DEWONO BUDIYUWONO
----------------------------------
/s/ Lara Xxxxxxxxxx Xxxxx
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Signature of Witness
Lara Xxxxxxxxxx Xxxxx
c/ Makarim & Tacra S.
Summitmasi
Ji. Jend. Sudirman, Jakarta.
----------------------------------
Full name and address of Witness
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SIGNED for and on behalf of )
XXXXXX-FIELD HEALTH, INC. )
in accordance with its articles of association )
in accordance by its duly authorised officer )
/s/ Xxxx Xxxxx Xxxxxx
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Signature of Witness
Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx Xxxxxx, 00 XXXXXXX XX., XXXXXXX, XX 00000
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Full name and address of Witness
