EXHIBIT 2.2
THIS AGREEMENT dated 10th September, 1999 is made
BETWEEN:-
(1) ASIA RESOURCES HOLDINGS LIMITED, a company incorporated in Delaware
whose registered office is at X.X. Xxx 0000 Xxxxxxxxx, XX 00000 (the
"Vendor"); and
(2) HORLER HOLDINGS LIMTED, a company incorporated in British Virgin
Islands whose registered office is at X.X. Xxx 00, Xxxxxxxxx Xxxxxxxx,
Xxxx Town, Tortola, British Virgin Islands (the "Purchaser")
WHEREAS the Vendor has agreed to sell and the Purchaser has agreed to purchase
the Sale Shares subject to the terms and conditions hereinafter set out.
IT IS HEREBY AGREED:-
1. INTERPRETATION
(A) In this Agreement and the Recitals hereto, unless the context otherwise
requires:-
"Acquisition Agreement" means the agreement of even date between the
Vendor, the Purchaser, Far Beyond Investments Limited ("Far Beyond")
and shareholders of Far Beyond;
"business day" means a day other than a Saturday on which banks are
open for business in Hong Kong;
"Company" means Westronix Limited, details of which are set out in
Schedule 1;
"Completion" means the time fixed for completion pursuant to Clause
3(B) and where the context requires also means the performance by the
parties of their respective obligations in accordance with the
provisions of Clause 3;
"Condition" means the condition set out in Clause 3(A);
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"Consideration" means an amount equivalent to the aggregate amount due
from the Vendor to the Purchaser as at Completion under the Secured
Convertible Promissory Note including any interest accrued thereon and
any late charges;
"Hong Kong" means the Hong Kong Special Administrative Region of the
People's Republic of China;
"Sale Shares" means the one share of US$1.00 of the Company which
represents the entire issued share capital of the Company;
"Secured Convertible Promissory Note" means the 9% Secured Convertible
Promissory Note of US$30,000,000 issued by the Vendor (formerly known
as Regal International, Inc.) to the Purchaser dated 10th September
1996;
"US$" means dollars of the United States of America.
(B) In this Agreement, words importing the singular include the plural and
vice versa, words importing gender or the neuter include both genders
and the neuter and references to persons include bodies corporate or
unincorporate.
(C) References in this Agreement to statutory provisions are references to
those provisions as respectively amended or re-enacted from time to
time (if and to the extent that the provisions as amended or re-enacted
are for the purposes hereof equivalent to those provisions before such
amendment or re-enactment) and shall include any provision of which
they are reenactments (if and to the extent aforesaid) and any
subordinate legislation made under such provisions.
(D) References herein to "Clauses" and "Schedules" are to clauses of and
schedules to this Agreement respectively and a reference to this
Agreement includes a reference to each Schedule hereto.
(E) The headings and table of contents in this Agreement are for
convenience only and shall not affect its interpretation.
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2. SALE AND PURCHASE OF THE SALE SHARES
Subject to satisfaction of the Condition, the Vendor as beneficial
owner shall sell and the Purchaser shall purchase or procure the
purchase of the Sale Shares at the Consideration (payable at Completion
pursuant to Clause 3) free from all rights of preemption, options,
liens, claims, equities, charges, encumbrances or third-party rights of
any nature and with all dividends, benefits and other rights now or
hereafter being attached or accruing thereto as from the date of this
Agreement.
3. COMPLETION
(A) Completion of this Agreement is conditional upon the shareholders of
the Vendor in general meetings having approved this Agreement which is
a related party transaction.
(B) Completion shall take place immediately before the closing pursuant to
the Acquisition Agreement provided that if closing of the Acquisition
Agreement does not take place, Completion shall be deemed not to have
taken place. Completion shall take place at the offices of 20/F., Asia
Pacific Finance Tower, Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxx, Xxxx Xxxx when
all (but not part only) of the following businesses set out in
subclauses, (C) and (D) shall be transacted.
(C) The Vendor shall procure that before Completion a board meeting of the
Company is held and that at such meeting resolutions are passed to
approve the registration of the transfer of the Sale Shares to the
Purchaser or its nominee upon presentation of duly executed transfers.
(D) At Completion:-
(a) the Vendor shall deliver or procure the delivery to the
Purchaser of:-
(i) instruments of transfer in respect of the Sale Shares
duly executed by the registered and beneficial owner
thereof in favor of the Purchaser and/or its nominee;
(ii) the share certificates in respect of the Sale Shares;
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(iii) certified true copies of any power of attorney or
other authority pursuant to which this Agreement and
any document referred to in (i) above may have been
executed;
(b) the Vendor shall deliver to the Purchaser in respect of the
Company:-
(i) the corporate seal, cheque books, chops and all
copies of the memorandum and articles of association
of the Company;
(ii) the statutory books of the Company duly made up to
date and any unissued share certificates and such
other records (including all title documents to the
assets including financial records) of the Company as
may exist;
(iii) all current insurance policies, books and records,
title documents of the Company, all contracts to
which the Company is a party and such licenses,
authorizations and registrations granted to or owned
by the Company.
(c) The Purchaser shall (i) deliver to the Vendor the original
Secured Convertible Promissory Note marked cancelled and (ii)
pursuant to Clause 4, pay to the Vendor the Consideration.
(E) The Purchaser shall not be obliged to complete the purchase of the Sale
Shares or perform any obligations hereunder unless the Vendor complies
fully with its obligations under Sub-Clauses (C) and (D).
(F) For avoidance of doubt, this Agreement shall automatically terminate if
the Acquisition Agreement is terminated and the parties shall in such
event be released from all their obligations hereunder and shall have
no claims against each other for such termination.
4. SET-OFF
The parties agree that the Purchaser shall with effect from Completion
set-off the sum of the Consideration which is otherwise payable on
Completion against the indebtedness due from the Vendor to the
Purchaser as at Completion under the Secured Convertible
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Promissory Note. Upon Completion, the Vendor shall be deemed to be
released from all liabilities and obligations under the Secured
Convertible Promissory Note and the Consideration shall be deemed to
be fully paid and satisfied by the Purchaser.
5. CLAIMS
(A) The Vendor hereby waives and agrees to waive all claims which it may
have against the Company or in respect of any assets of the Company.
(B) For the purpose hereof "Claims" means any and all rights and claims,
contingent or otherwise and whether or not known to the parties or any
of them, which the Vendor and may have against the Company subsisting
at or before Completion, together with any such rights or claims
arising out of any events or omissions at or before Completion.
6. THE PURCHASER INDEMNITY
It is being understood that the Purchaser is fully familiar with the
operation of the Company. The Purchaser shall indemnify and hold
harmless the Vendor (i) from any obligation and liabilities arising
from this transaction, and (ii) any claim by or any obligation or
liability to any third party arising out of or in relation to the
Company or any assets of the Company, whether known or unknown, actual
or contingent, to the extent the same are arisen on or before the
closing under the Acquisition Agreement, provided that notice of any
claim under this Clause 6 by the Vendor must be delivered by the Vendor
to the Purchaser within 2 years from Completion.
7. TAX INDEMNITY
(A) Subject to other provisions of this clause, the Purchaser hereby
covenants with and undertakes to indemnify and keep indemnified the
Vendor against any loss and liability suffered by the Vendor and costs
and expenses reasonably incurred as a result of or in connection with
any claim by any fiscal authorities falling on the Vendor resulting
from or by reference to or arising out of the sale and purchase of the
Sale Shares herein.
(B) If the Vendor shall become aware of a claim relevant for the purpose of
this clause, the Vendor shall forthwith give written notice thereof to
the Purchaser at the address given in
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this Agreement (or such other address or addresses as the Purchaser
may from time to time notify the Vendor for the purpose of this
Agreement) and shall take such action as the Purchaser may reasonably
request and at the costs of the Purchaser to avoid, resist or
compromise any such claim.
(C) The liabilities of the Purchaser under this clause shall cease after 24
months from Completion except in respect of matters which have been the
subject of a bona fide written claim made within the said period by the
Vendor to the Purchaser.
8. ANNOUNCEMENTS AND CONFIDENTIALITY
(A) Each of the parties hereby undertakes to the other that it will not, at
any time after the date of this Agreement, divulge or communicate to
any person other than to their respective professional advisers, or
when required by law, or to their respective officers or employees
whose province it is to know the contents of this Agreement or the
negotiations in respect thereof and that it will not, at any time after
Completion, divulge or communicate to any person other than to their
respective professional advisers, or when required by law or to their
respective officers or employees whose province it is to know, any
confidential information concerning the business, accounts, finance or
contractual arrangements or other dealings, transactions or affairs of
the Company which may be within or may come to its knowledge and that
it shall prevent the publication or disclosure of any such confidential
information concerning such matters provided that the parties'
obligations under this Sub-Clause (A) shall cease and determine upon
Completion.
(B) No public announcement or communication of any kindshall be made in
respect of the subject matter of this Agreement unless specifically
agreed between the parties or unless an announcement is required
pursuant to relevant law or statutory requirements. Any announcement
by either party required to be made pursuant to any relevant law or
statutory requirements shall be issued only after such prior
consultation with the other party as is reasonably practicable in the
circumstances.
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9. NOTICES
Each notice, demand or other communication given or made under this
Agreement shall be in writing and delivered or sent by post or airmail
or by facsimile transmission to the relevant party at its address or
fax number set out below (or such other address or fax number as the
addressee has by five (5) days' prior written notice specified to the
other parties):-
To the Purchaser:
52/F., Bank of Xxxxx Xxxxx,
0 Xxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Fax Number 2537 6591
Attention Ms. Xxxxxxxxx Ma
To the Vendor:
Rm 2005, 20/F., Xxxxxxxxx Xxxxx Xxxxxx,
0-0X Xxxxxxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Fax Number: 2757 7535
Attention: Xx. Xxxxx Xxxxx
Any notice, demand or other communication so addressed to the relevant
party shall be deemed to have been delivered (a) if given or made by
letter, 3 business days after the date of dispatch; and (b) if given or
made by fax, when dispatched.
10. MISCELLANEOUS
(A) All provisions of this Agreement shall, so far as they are capable of
being performed or observed, continue in full force and effect
notwithstanding Completion except in respect of those matters then
already performed.
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(B) If at any time one or more provisions hereof is or becomes invalid,
illegal, unenforceable or incapable of performance in any respect under
the laws of any relevant jurisdiction, the validity, legality,
enforceability or performance in that jurisdiction of the remaining
provisions hereof or the validity, legality, enforceability or
performance under the laws of any other relevant jurisdiction of these
or any other provisions hereof shall not thereby in any way be affected
or impaired.
(C) Time shall be of the essence of this Agreement.
(D) Each party shall bear its own legal and professional fees, costs and
expenses incurred in connection with this Agreement.
(E) This Agreement shall be binding on and shall enure for the benefit of
the successors and assigns of the parties hereto but shall not be
capable of being assigned by any party without the written consent of
the other party.
(F) This Agreement sets forth the entire agreement and understanding
between the parties or any of them in relation to the sale and purchase
of the Sale Shares the other transactions contemplated by this
Agreement and supersedes and cancels in all respects all previous
agreements, letters of intent, correspondence, understandings,
agreements and undertakings (if any) between the parties hereto with
respect to the subject matter hereof, whether such be written or oral.
(G) This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and
each of which shall be binding on and enforceable against the party who
shall have executed it.
(H) No variation or amendment to or waiver of any of the provisions of this
Agreement shall be valid or effective unless in writing and signed by
or on behalf of each party.
(I) Each of the parties to this Agreement shall cooperate with the other
and shall execute and deliver to the other such other instruments and
documents and take such other action as may reasonably be requested
from time to time by that other party in order to carry out, evidence
and confirm their respective rights and the intended purpose of this
Agreement.
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11. GOVERNING LAW AND JURISDICTION
(A) This Agreement is governed by and shall be construed in accordance with
the laws of Hong Kong and the parties hereto hereby submit to the
non-exclusive jurisdiction of Hong Kong in connection herewith.
(B) The submission to the jurisdiction of the courts of Hong Kong shall not
(and shall not be construed so as to) limit the right of either of the
parties hereto to take proceedings against the other in any court of
competent jurisdiction, nor shall the taking of proceedings by either
of the parties hereto in any one or more jurisdictions preclude it from
taking proceedings in any other jurisdiction (whether concurrently or
not) if and to the extent permitted by applicable law.
IN WITNESS whereof the parties hereto have executed this Agreement the day and
year first before written.
Signed by /s/Lien Kait Long )
For and on behalf of )
ASIA RESOURCES HOLDINGS LIMITED )
in the presence of:- )
/s/ Xxxxxx X.X. Xxx
Solicitor, Hong Kong
Signed by /s/Ma Wai Man, Xxxxxxxxx )
For and on behalf of )
HORLER HOLDINGS LIMITED )
in the presence of:- )
/s/ Xxxxxx X.X. Xxx
Solicitor, Hong Kong
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SCHEDULE 1
1. COMPANY NAME : Westronix Limited
2. PLACE OF INCORPORATION : British Virgin Islands
3. DATE OF INCORPORATION : 3rd July 1996
& CERTIFICATE NUMBER : 190869
4. REGISTERED OFFICE : X.X. Xxx 000, Xxxxxxxx Incorporations
Centre, Road Town, Tortola, British Virgin Islands
5. DIRECTORS : Oei Hong Xxxxx
(ALTERNATE DIRECTORS) : Li Ling Xxx
Xxxx Kait Long
Ma Wai Man, Xxxxxxxxx
6. SECRETARY : Treasure Way Services Limited
7. SHARE CAPITAL : Authorized :- US$50,000 (50,000 shares
of US$1.00 each)
Issued :- 1 share of US$1.00
8. SHAREHOLDERS : Asia Resources Holdings Limited
9. AUDITORS : Xxxxxx Xxxxxxxx
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