Exhibit 10.8
SHARE PURCHASE AND SALE AGREEMENT
This Share Purchase and Sale Agreement (the "Agreement") is entered into
this ___ day of February, 2000 by and between:
- ASIA PROPERTIES, INC., a company incorporated under the laws of the State
of Nevada, who registered address is 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxx, and ASIA PROPERTIES INVESTMENTS, INC., a company incorporated under
the laws of the British Virgin Islands, whose registered address is
Xxxxxxxx Building, Wickhams Cay 1, P.O. Box 961, Road Town, Tortola,
British Virgin Islands (collectively referred to herein as "API");
- ASIA PROPERTIES (THAILAND) LIMITED, a company incorporated under the laws
of Thailand whose registered office is 86/14 Soi Sukhumvit 31, Sukhumvit
Road, Kwaeng North Klongton, Khet Wattana, Bangkok ("API(T)");
- XXXXXX X. XXXXXXXX, an individual, whose correspondence address is 00000
Xxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0; XXXXXXXX ST.
XXXXXXXX, an individual, whose residence address is 00/00 Xxxxxxxxx 00,
Xxxxxxx 00000 Xxxxxxxx; XXX XXXX-IM, an individual, whose residence address
is 00000 Xxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0;
CRESTVIEW ASSOCIATES LIMITED, a company incorporated under the laws of Hong
Kong; ("Crestview") and XXXXXXXX LIMITED, a company incorporated under the
laws of the British Virgin Islands ("Xxxxxxxx") (hereinafter collectively
referred to as the "API Majority Shareholders");
- NORTHBRIDGE COMMUNITIES LIMITED, a Thai limited company, whose registered
address is 7th Floor, XXXXX Xxxxx, 00 Xxxxx Xxxxxxx Xxxx, Xxxxxxx 00000
Xxxxxxxx ("NCL"); and
- THE SHAREHOLDERS OF NORTHBRIDGE COMMUNITIES LIMITED, a current list of
which is attached hereto as Schedule "A" (the shareholders and each of them
are hereinafter collectively referred to as the "NCL Shareholders").
(The above parties shall hereinafter be collectively referred to herein as
the "Parties" or "Party" where in the singular).
RECITALS
WHEREAS:
1. API wishes to acquire 399,999,990 of the issued and outstanding
shares of NCL as set forth in Schedule "A".
2. Those 399,999,990 shares of NCL shall be referred to herein as the
"Acquired Share Capital".
3. The "Listing Requirement" shall mean the acceptance of API's
application for listing on the American Stock Exchange ("AMEX").
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4. In furtherance of the acquisition by API of the Acquired Share
Capital, the respective Boards of Directors and Shareholders of API and
NCL, where required, shall have approved this Agreement as set forth below
on the terms and subject to the conditions set forth in this Agreement.
5. API, API(T) and NCL desire to make certain representations,
warranties, covenants and agreements in connection with the transactions
contemplated hereby and also to set forth various conditions to the
transactions contemplated hereby.
NOW THEREFORE, in consideration of the representations, warranties,
covenants, conditions and agreements set forth herein, and intending to be
legally bound hereby, the Parties hereto agree as follows:
ARTICLE I
THE SHARE EXCHANGE
Section 1.1 The Share Exchange.
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(1) Upon the terms and subject to the conditions set forth in this
Agreement, the NCL Shareholders shall sell or cause to be sold to API and API
shall purchase all of the Acquired Share Capital in exchange for shares of the
$.01 par value common stock of API ("Share Exchange") with an assigned value of
$4.40 per share ("API Shares").
(2) The number of API Shares is implicitly based on the net value
of the Acquired Share Capital as determined by a valuation by Xxxxxxx &
Xxxxxxxxx (Thailand) Limited (the "Asset Valuation"), with a date of valuation
within twelve (12) months prior to the date of the execution of this Agreement.
Said Asset Valuation takes into account the proportion of the shares in the
Subject Companies owned by NCL. The Asset Valuation is set forth in Schedule
1.1(2).
(3) The number of API Shares to be conveyed to the NCL
Shareholders in exchange for the Acquired Share Capital shall be 4.6 million
(4,600,000) (the "Share Consideration") and shall be allocated among the NCL
Shareholders in proportion to their respective shareholding interests in NCL as
per Schedule "A".
Section 1.2 Closing.
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(1) The closing of the purchase and sale of the Acquired Share
Capital (the "Closing") shall take place on a date within one hundred eighty
(180) days of the execution of this Agreement (the "Closing Date") at a location
mutually agreed to in writing by the Parties hereto. The Closing Date may be
further extended by agreement in writing by both API and NCL. The Parties agree
to use all reasonable efforts to close the Share Exchange as soon as
practicable, subject to Article V hereof.
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(2) On Closing, for the purposes of this Agreement, the company
representing the joinder of API and NCL under this Agreement shall be referred
to herein as "New API".
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Section 1.3 Deliveries at Closing.
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(1) At the Closing, the NCL Shareholders shall cause to be delivered
duly endorsed certificates representing the Acquired Share Capital, stock powers
for such shares and such other instruments and documents as API may require to
complete the transfer of the Acquired Share Capital.
(2) API shall deliver to the NCL Shareholders in accordance with
Section 1.1(3), the Share Consideration in such form and with such instruments
and documents as required by this Agreement, its Schedules or as the NCL
Shareholders may reasonably request. API shall deliver to NCL the items
described in Article V, which have not previously been delivered. Deliveries of
instruments and documents by API shall be in a form satisfactory to counsel for
NCL.
(3) API shall deliver the API Escrow Shares (as defined in Section 2.4
below) pursuant to the terms and conditions of Section 2.4.
Section 1.4 Directors. The management directors of API immediately after
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the Closing Date (the "Board of New API") shall be Xxxxxx X. XxXxxxxx, Xxxxxxxx
St. Xxxxxxxx, Xxxxxxx Pokachaiyapat and Xx. Xxxxxx Xxxxxxx, until the earlier of
their resignation or removal or until their respective successors are duly
elected and qualified, as the case may be. Two outside directors (the "Outside
Directors") will also be named pursuant to the rules of AMEX, with one Outside
Director to be named by Xxxxxx X. XxXxxxxx and Xxxxxxxx St. Xxxxxxxx and one
Outside Director to be named by Vorasit Pokachaiyapat and Xx. Xxxxxx Xxxxxxx.
ARTICLE II
ADDITIONAL FUND RAISING, ESCROW AND LISTING
Section 2.1 Additional Capital. API shall endeavor to raise a minimum of
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US$15 million in new cash at a price not less than $4.40 per share within 220
days of the date of the execution of this Agreement (the "New Cash Capital").
The New Cash Capital shall be deposited into a new bank account in API's name
(the "New Cash Account"), which bank and branch shall be mutually agreed upon in
writing by the Parties. Said account shall be controlled by the Board of New
API as defined under Section 1.4 above.
Section 2.2 API shall be deemed to have raised the New Cash Capital at such
time within 220 days of the date of execution of this Agreement as the New Cash
Account shows a minimum balance of US$15,000,000.
Section 2.3 All Parties to this Agreement acknowledge that the purpose of
raising the New Cash Capital is to: (i) finance new investments by NCL; (ii)
repay or reduce NCL's borrowings; and (iii) finance new projects in Asia
separate from those undertaken by NCL.
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Section 2.4 Escrow for API Shares. In the event API is unable to raise the
New Cash Capital within 220 days of the execution of this Agreement, the API
Majority Shareholders shall relinquish to the NCL Shareholders 3.5 Million API
Shares owned by them (the "API Escrow Shares"). On the date of execution of
this Agreement or as soon as practicable thereafter, the API Majority
Shareholders shall arrange for the deposit of the API Escrow Shares along with
duly executed stock powers as necessary to transfer the API Escrow Shares to the
NCL Shareholders into an escrow account as per NCL's instructions, and subject
to a written escrow agreement (the "API Escrow Agreement") attached hereto as
Schedule 2.4.
(1) In the event API is able to raise the New Cash Capital within
220 days of the date of the execution of this Agreement, said API Escrow Shares
shall be redelivered to the API Majority Shareholders who deposited the shares.
(2) If API fails to raise the New Cash Capital within 220 days of
the date of the execution of this Agreement, then one half of the API Escrow
Shares (1.75 million API Shares) shall be immediately distributed to the NCL
Shareholders without any further consideration being due, in proportion to the
shareholding interests of each NCL Shareholder in NCL as set forth in Schedule
"A". The remaining 1.75 million of the API Escrow Shares shall remain in escrow
subject to the conditions set forth in Section 2.5 below.
(3) If API fails to raise the New Cash Capital within 220 days
from the date of the execution of this Agreement, Xxxxxx X. XxXxxxxx shall
immediately, and without replacement, resign from the Board of New API.
(4) WAIVER OF LEGAL RIGHTS AND REMEDIES. API AND THE API MAJORITY
------------------------------------
SHAREHOLDERS HEREBY WAIVE ANY AND ALL CLAIMS OR ACTIONS UNDER SECTION 8
HEREINBELOW TO RESTRAIN OR PREVENT THE DISTRIBUTION OF THE API ESCROW SHARES TO
THE NCL SHAREHOLDERS PURSUANT TO SECTIONS 2.4 AND 2.5 OF THIS AGREEMENT.
(5) If API fails to raise the New Cash Capital within 220 days
from the date of the execution of this Agreement, any new cash capital deposited
into the New Cash Account before the expiration of the 220 day period in an
amount less than US$15,000,000 shall become the sole property of New API.
Section 2.5 Partial Clawback of Shares. If API fails to raise the New Cash
--------------------------
Capital within 220 days from the date of the execution of this Agreement, for a
period from 220 days until one (1) year from the date of the execution of this
Agreement (the "Discretionary Period"), subject to approval of the Board of New
API (such approval not to be unreasonably withheld), API shall be entitled to
continue its efforts to raise new cash capital, the conditions of which shall be
determined in the reasonable sole discretion of the Board of New API. At the
sole discretion of the Board of New API, the API Majority Shareholders who had
deposited their shares in escrow pursuant to Clause 2.5 shall be entitled to a
clawback of their proportional interest in the remaining 1.75 million API Escrow
Shares on monies raised during that Discretionary Period pursuant to the
following formula:
Cash Capital Raised ($) x 1.75 million Shares
----------------------
$15 Million
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After one (1) year from the date of execution of this Agreement, any API Escrow
Shares not redelivered to the API Majority Shareholders under this Section shall
be immediately distributed to the NCL Shareholders, without any further
consideration being due, in proportion to the shareholding interests of each NCL
Shareholder as set forth in Schedule "A".
Section 2.6 Listing Requirement. If New API fails to list on AMEX or any
--------------------
other market approved by the New API Board or within nine (9) months of the date
of the execution of this Agreement, Xxxxxx X. XxXxxxxx shall immediately, and
without replacement, resign from the Board of New API. For the avoidance of
doubt, New API must list on AMEX and API's current OTC listing on NASDAQ does
not satisfy this Listing Requirement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of NCL. NCL hereby acknowledges
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and agrees that API is relying upon the following representations and warranties
in connection with the purchase of the Acquired Share Capital.
(1) Organization and Standing. NCL is a corporation duly
---------------------------
organized, validly existing and in good standing under the laws of the Kingdom
of Thailand. It has all requisite corporate power and authority to carry on its
business as it is now being conducted, to own the share capital in the Subject
Companies and its properties, to enter into this Agreement and to carry out and
perform the terms and provisions of this Agreement. NCL is duly qualified to do
business and is in good standing in each jurisdiction in which the failure to be
so qualified would have a material adverse effect on the condition, financial or
otherwise, business, net worth, assets (including intangible assets), properties
or operations ("Material Adverse Effect") of NCL.
(2) NCL's shareholding interest in the below companies (the
"Subject Companies") consists of the following percentages (a complete
description of NCL's ownership of the Subject Companies is attached hereto as
Schedule 3.1(2):
COMPANY DOMICILE OWNERSHIP
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International School Cambodia Limited Cambodia 90%
("ISC")
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Khaou Chuly Land Company ("KC Land") Cambodia 49%
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Northbridge K-C Development Co., Ltd. Cambodia 90%
("NKDC")
-------------------------------------------------------------------------
International School Eastern Seaboard Thailand 25%
Limited ("ISE")
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Palanamai Limited Thailand 45%
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Northbridge Management Services Ltd. Hong Kong 100%
-------------------------------------------------------------------------
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The Subject Companies are all corporations duly organized, validly
existing and in good standing under the laws of the countries in which they were
formed. Each of the Subject Companies has all requisite corporate power and
authority to carry on its business as it is now being conducted and to own its
properties. Each of the Subject Companies is qualified to do business and is in
good standing in each jurisdiction in which the failure to be so qualified would
have a Material Adverse Effect on the condition, financial or otherwise,
business, net worth, assets (including intangible assets), properties or
operations of each such companies.
(3) Ownership of Acquired Share Capital. At Closing, NCL and the
------------------------------------
NCL Shareholders shall have the full power and authority to sell, transfer and
assign to API the Acquired Share Capital and vest in API good, valid and
merchantable title in and to the Acquired Share Capital free and clear of all
liens and encumbrances. The Acquired Share Capital represents all of the share
capital, shares or securities owned by NCL and the NCL Shareholders and neither
NCL, the NCL Shareholders nor any person or entity controlled by or in common
control with NCL has any agreement or option or any right or privilege (whether
by law, preemptive or contractual) capable of becoming an agreement or option
for: (i) the purchase, subscription, allotment or issuance of or conversion into
any of the unissued shares or other securities of any of the Subject Companies;
(ii) the purchase from NCL or the NCL Shareholders of any issued shares or other
securities other than API as contemplated herein; or (iii) the purchase or other
acquisition from any of the Subject Companies of any of their undertakings,
property or assets, other than in the ordinary course of business.
(4) Transfer of Shares. Upon the payment of the Share
--------------------
Consideration by API, the Acquired Share Capital will be duly exchanged and
transferred to API.
(5) NCL's Authority. The execution, delivery, and performance of
----------------
this Agreement has been duly authorized by all requisite corporate action,
subject to the approval of this Agreement by the NCL Shareholders as per Section
4.1 hereinbelow. This Agreement has been executed and delivered by NCL and the
NCL Shareholders and constitutes a valid and binding obligation of NCL and the
NCL Shareholders, enforceable in accordance with its terms (except as limited by
bankruptcy, insolvency, or other laws affecting the enforcement of creditors'
rights). The execution, delivery and performance of this Agreement will not
conflict with any provision of NCL's Memorandum or Articles of Association, or
as amended, or with any contract to which NCL is a party or otherwise bound.
(6) Assets of NCL. NCL has furnished API with a complete list of
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the assets owned by the Subject Companies as set forth in Schedule 3.1(6)
attached hereto and incorporated herein by reference.
(i) Subject Companies. NCL owns the share capital of the Subject
-----------------
Companies with good and marketable title thereto, free and clear of all liens
and encumbrances of any nature whatsoever.
(ii) Land Titles. Except as disclosed in Schedule 3.1(6)ii, all
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of the interests in real property owned by the Subject Companies are legally and
beneficially owned free and clear of all liens, encumbrances, restrictions,
reservations, covenants, easements and rights of way ("Title Exceptions") and
title to such properties and the absence of Title Exceptions is verifiable
through official governmental records.
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(iii) The terms of all leases to which the real property owned by
any of the Subject Companies are subject are summarized on Schedule 3.1(6) which
summary includes commencement and termination dates, options to renew or extend,
monthly rent, prepaid rent, security deposit, options to purchase, if any,
rights of first refusal and other material matters. Unless otherwise noted, all
of such leases are in full force and effect in accordance with their terms and
there are not uncured events of default by any Party to such leases. True and
correct copies of all leases will be delivered to API on or before the Closing
Date.
(iv) Chattels. All chattels are legally and beneficially owned
free and clear of all liens, encumbrances and claims.
(v) Permits. The Subject Companies possess all material permits
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necessary or required to own the land titles, chattels and any other property
owned by them and operated by their businesses as presently operated.
(7) Present Status. Subject to the provisions of Section 4.2,
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neither NCL nor any of the Subject Companies has, since September 30, 1999 and
will not have prior to the Closing Date without the prior written consent of
API, which consent shall not be unreasonably withheld or delayed:
(a) Incurred any obligations or liabilities, absolute,
accrued, contingent, or otherwise and whether due or to become due, except
liabilities incurred in the ordinary course of business;
(b) Entered into any agreement obligating it or them to issue
any equity securities except as required by the Agreement as extended between
NCL and API;
(c) Discharged or satisfied any liens or encumbrances, or
paid any obligation or liability, absolute, accrued, contingent, or otherwise
and whether due or to become due, other than current liabilities reflected in
financial statements and current liabilities incurred since September 30, 1999,
in each case, in the ordinary course of business;
(d) Declared or made any payment or distribution to its
stockholders or purchased or redeemed, or obligated itself to purchase or
redeem, any of its shares of common stock or other securities;
(e) Mortgaged, pledged, or subjected to lien, or any other
encumbrances or charges, any of its assets, tangible or intangible;
(f) Sold or transferred any of its material assets, or
canceled any material debt or claim;
(g) Suffered any material damage, destruction, or loss
(whether or not covered by insurance) affecting their properties or waived any
rights of substantial value; or
(h) Except with respect to this Agreement, entered into any
transaction regarding the sale, lease or encumbrance of any asset or the
settlement of any obligation, or entered into any other material transaction
other than in the ordinary course of business.
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(8) Litigation. Except as disclosed in Schedule 3.1(8), there are
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no legal actions, suits, arbitrations, or other legal or administrative
proceedings pending or threatened against NCL or the Subject Companies or their
properties which would reasonably be expected to have a Material Adverse Effect
upon them, their properties, assets, or business; and NCL is not aware of any
facts which to its knowledge would reasonably be expected to result in any
action, suit, arbitration, or other proceeding which in turn would reasonably be
expected to result in any material adverse change in the business or condition
(financial or otherwise) of NCL, the Subject Companies or their properties or
assets. NCL is not in default of any judgment, order, or decree of any court
or, in any material respect of, any requirements of a government agency or
instrumentality, except as set forth in Schedule 3.1(8).
(9) Compliance With the Law and Other Instruments. To the best of
---------------------------------------------
NCL's knowledge, the business operations of NCL and the Subject Companies have
been and are being conducted in substantial compliance with all applicable laws,
rules, and regulations of all authorities except as disclosed in Schedule
3.1(9). NCL and the Subject Companies are not in violation of, or in default
under, any term or provision of their certificates of incorporation, as amended,
or bylaws, as amended, or in any material respect of any lien, mortgage, lease,
agreement, instrument, order, judgment, or decree, or subject to any restriction
contained in any of the foregoing of any kind or character which materially
adversely affects the business, properties, assets, or prospects of NCL and the
Subject Companies, or which would prohibit NCL from entering into this
Agreement.
(10) Contracts and Other Obligations. Except as otherwise
----------------------------------
disclosed and described in Schedule 3.1(10), neither NCL or the Subject
Companies are parties to or otherwise bound by any material written or oral:
(a) Contract or agreement not made in the ordinary
course of business;
(b) Employment or consultant contract which is not terminable
at will without cost or other liability to NCL, the Subject Companies or any
successor;
(c) Contract with any labor union;
(d) Bonus, pension, profit-sharing, retirement, share
purchase, stock option, hospitalization, group insurance, or similar plan
providing employee benefits;
(e) Advertising contract or contract for public relations
services;
(f) Purchase, supply, or service contracts of a duration less
than one (1) year in excess of $100,000 each, or in the aggregate of $500,000
for all such contracts whether below or above $100,000;
(g) Deed of trust, mortgage, conditional sales contract,
security agreement, pledge agreement, trust receipt, or any other agreement or
arrangement whereby any of the assets or properties of NCL or the Subject
Companies are subjected to a lien, encumbrance, charge, or other restriction;
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(h) Material contract or other material commitment continuing
for a period of more than thirty days and which is not terminable without cost
or other liability to NCL, the Subject Companies or their successors; or
(i) Any material contract, agreement, lease or other binding
arrangement with which NCL or the Subject Companies are not in substantial
compliance therewith.
(11) Records. The books of account, minute books, stock
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certificate books, and stock transfer ledgers of the Subject Companies are
complete and correct, and there have been no transactions involving the business
of the Subject Companies which properly should have been set forth in said
respective books, other than those set forth therein.
(12) Vote Required. The affirmative vote of the NCL Shareholders
--------------
in an amount greater than seventy five percent (75%) of the outstanding shares
of NCL common stock to approve this Agreement (the "Required NCL Vote") is the
only vote of the NCL Shareholders of any class or series of NCL capital stock
necessary to adopt this Agreement and approve the transactions contemplated
hereby.
(13) Brokers or Finders. All negotiations on the part of NCL
--------------------
relative to this Agreement and the transactions contemplated hereby have been
carried on by NCL without the intervention of any person or as the result of any
act of NCL in such manner as to give rise to any valid claim for a brokerage
commission, finder's fee, or other like payment.
(14) Absence of Certain Changes or Events. Since September 30,
---------------------------------------
1999, there has not been any material adverse change in, or event or condition
materially and adversely affecting the condition (financial or otherwise),
properties, assets, liabilities or, to the knowledge of the Subject Companies in
the locales in which the Subject Companies conduct their business.
(15) Taxes. NCL and the Subject Companies have duly fulfilled all
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necessary tax filings required in their respective jurisdictions up to the date
hereof. All of the foregoing returns are true and correct in all material
respects and NCL and the Subject Companies have paid or provided for all taxes,
interest and penalties shown on such returns or reports as being due. NCL and
the Subject Companies have no liability for any material amount of taxes,
interest or penalties of any nature whatsoever, except for those taxes which may
have accrued up to the Closing Date in the ordinary course of business and are
properly accrued on the books of NCL or the Subject Companies as of the Closing
Date.
(16) Environmental Matters. NCL is aware of no actions,
----------------------
proceedings or investigations pending or, to the actual knowledge of NCL,
threatened before any environmental regulatory body alleging noncompliance by
NCL or the Subject Companies with any laws or regulations regulating the
discharge of materials into the environment ("Environmental Laws"). To the
knowledge of NCL: (i) there is no reasonable basis for the institution of any
action, proceeding or investigation against NCL or the Subject Companies under
any Environmental Law; (ii) NCL and the Subject Companies are not responsible
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under any Environmental Law for any release by any person at or in the vicinity
of real property of any hazardous substance caused by the spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping or disposing of any such hazardous substance into the
environment; (iii) NCL and the Subject Companies are not responsible for any
costs of any remedial action required by virtue of any release of any toxic or
hazardous substance, pollutant or contaminant into the environment including,
without limitation, costs arising from security fencing, alternative water
supplies, temporary evacuation and housing and other emergency assistance
undertaken by any environmental regulatory body; (iv) NCL and the Subject
Companies are in substantial compliance with all applicable Environmental Laws;
and (v) no real property used, owned, managed or controlled by NCL or the
Subject Companies contains any toxic or hazardous substance including, without
limitation, any asbestos, PCBs or petroleum products or byproducts in any form,
the presence, location or condition of which (a) violates any Environmental Law,
or (b) otherwise would pose any significant health or safety risk unless
remedial measures were taken.
(17) Full Disclosure. To NCL's knowledge and belief, this
----------------
Agreement and any Schedules and certificates delivered by NCL in connection
herewith or with the transactions contemplated hereby, taken as a whole, neither
contain any untrue statement of a material fact nor omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. To NCL's knowledge and belief, there are no facts which
(individually or in the aggregate) materially adversely affect the business,
assets, liabilities, financial condition or operations of NCL or the Subject
Companies that have not been set forth in this Agreement, the Schedules hereto
or in other documents delivered by NCL in connection herewith.
When used in this Agreement, the term "knowledge" and words of similar import
means knowledge actually possessed by an officer or director of NCL, whether by
personal discovery or communication received from a subordinate, but does not
include imputed or vicarious knowledge.
Section 3.2 Representations and Warranties by API. API is presently
-----------------------------------------
reorganizing under the laws of BVI and API hereby represents and warrants to NCL
that as of the Closing Date, except as set forth on Schedule 3.2 attached hereto
or as described in filings hereafter made by API pursuant to the informational
reporting requirements of the Securities Exchange Act of 1934 (the "Exchange
Act"):
(1) Organization and Standing of API. API is a corporation duly
----------------------------------
organized and validly existing and in good standing under the laws of the
British Virgin Islands. API is currently in the process of obtaining a listing
on the American Stock Exchange. API has all requisite corporate power and
authority to carry on its business as now being conducted, to enter into this
Agreement and to carry out and perform the terms and provisions of this
Agreement. API is duly qualified to do business and is in good standing in each
jurisdiction in which the failure to be so qualified would have a Material
Adverse Effect on the condition (financial or otherwise), business, net worth,
assets (including intangible assets), properties or operations of API. Except
with respect to API(T) which is a 35% owned subsidiary of API and BREF (as
hereinafter defined) which is (or will be) a 98.2% owned subsidiary of API, API
has no direct or indirect interest, either by way of stock ownership or
otherwise, in any other firm, corporation, association, or business.
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(2) Capitalization. API is duly and lawfully authorized by its
--------------
Articles of Association, as amended, to issue 500 million shares of API common
stock ("API Common Stock") $.01 par value per share of which as of the date
hereof, there are 5,921,434 issued and outstanding shares. API has granted
options to acquire 140,000 shares of its common stock at $5 per share. A list
of the current shareholders and option holders is attached hereto as Schedule
3.2(2). All of the outstanding shares of API Common Stock have been duly
authorized and validly issued and are fully paid and non-assessable and free of
preemptive rights. Except as may be required by this Agreement and as
specifically mentioned above, API will not issue and are not obligated to issue
any additional common or preferred stock as a result of any options, warrants,
rights, conversion rights, obligations upon default, subscription agreement or
other obligation of any kind other than as contemplated in Section 3.2(13). API
is not presently liable on account of any indebtedness for borrowed monies,
except as reflected in the API Financial Statements (as hereinafter defined).
(3) API's Authority. The execution, delivery, and
----------------
performance of this Agreement have been duly authorized by all requisite
corporate action. This Agreement has been executed and delivered by API and
constitutes a valid and binding obligation of API enforceable in accordance with
its terms (except as limited by bankruptcy, insolvency, or other laws affecting
the enforcement of creditors' rights). The execution, delivery and performance
of this Agreement will not conflict with any provision of API's Articles of
Association and any amendments thereto, Bylaws and any amendments thereto, or of
any contract to which API is a party or otherwise bound.
(4) API Financial Statements. API has furnished to NCL its
--------------------------
audited balance sheet as of December 31, 1998, its audited statements of
operations and cash flows for the period ended December 31, 1998, and its
unaudited balance sheet as of June 30, 1999. Prior to the execution of this
Agreement, API shall deliver its unaudited statements of operations and cash
flows for the year ending December 31, 1999 (collectively, the "API Financial
Statements"). Once available, API shall deliver the audited financial
statements for the year ending December 31, 1999. All of the API Financial
Statements present fairly the financial position of API as of the respective
balance sheet dates, and the results of its operations and cash flows for the
respective periods therein specified. The API Financial Statements were
prepared in accordance with generally accepted accounting principles applied
upon a basis consistent with prior accounting periods.
(5) Present Status. Neither API nor API(T) has, since September
---------------
30, 1999 and will not have prior to the Closing Date without the prior written
consent of NCL, which consent shall not be unreasonably withheld or delayed:
(a) Incurred any obligations or liabilities, absolute,
accrued, contingent, or otherwise and whether due or to become due,
except liabilities incurred in the ordinary course of business;
(b) Entered into any agreement obligating it or them to
issue any equity securities except as required by the Agreement as extended
between NCL and API;
11
(c) Discharged or satisfied any liens or encumbrances, or
paid any obligation or liability, absolute, accrued, contingent, or otherwise
and whether due or to become due, other than current liabilities reflected in
financial statements and current liabilities incurred since September 30, 1999,
in each case, in the ordinary course of business;
(d) Declared or made any payment or distribution to its
stockholders or purchased or redeemed, or obligated itself to purchase or
redeem, any of its shares of common stock or other securities;
(e) Mortgaged, pledged, or subjected to lien, or any
other encumbrances or charges, any of its assets, tangible or intangible;
(f) Sold or transferred any of its material assets, or
canceled any material debt or claim;
(g) Suffered any material damage, destruction, or loss
(whether or not covered by insurance) affecting their properties or waived any
rights of substantial value; or
(h) Except with respect to this Agreement, entered into any
transaction regarding the sale, lease or encumbrance of any asset or the
settlement of any obligation, or entered into any other material transaction
other than in the ordinary course of business.
(6) Litigation. Except as disclosed in Schedule 3.2(6), there are
----------
no legal actions, suits, arbitrations, or other legal or administrative
proceedings pending or threatened against API or API(T) or their properties
which would reasonably be expected to have a material adverse effect upon them,
their properties, assets, or business; and API is not aware of any facts which
to its knowledge would reasonably be expected to result in any action, suit,
arbitration, or other proceeding which in turn would reasonably be expected to
result in any material adverse change in the business or condition (financial or
otherwise) of API, API(T) or their properties or assets. API is not in default
of any judgment, order, or decree of any court or, in any material respect of,
any requirements of a government agency or instrumentality, except as set forth
in Schedule 3.2(6).
(7) Compliance With the Law and Other Instruments. To the
------------------------------------------------
best of API's knowledge, the business operations of API and the API(T) have been
and are being conducted in substantial compliance with all applicable laws,
rules, and regulations of all authorities except as disclosed in Schedule
3.2(7). API and the API(T) are not in violation of, or in default under, any
term or provision of their certificates of incorporation, as amended, or bylaws,
as amended, or in any material respect of any lien, mortgage, lease, agreement,
instrument, order, judgment, or decree, or subject to any restriction contained
in any of the foregoing of any kind or character which materially adversely
affects the business, properties, assets, or prospects of API and API(T), or
which would prohibit API from entering into this Agreement.
(8) Contracts and Other Obligations. Except as otherwise
----------------------------------
disclosed and described in Schedule 3.2(8), neither API or API(T) are parties to
or otherwise bound by any material written or oral:
(a) Contract or agreement not made in the ordinary
course of business;
12
(b) Employment or consultant contract which is not terminable
at will without cost or other liability to API, API(T) or any successor;
(c) Contract with any labor union;
(d) Bonus, pension, profit-sharing, retirement, share
purchase, stock option, hospitalization, group insurance, or similar plan
providing employee benefits;
(e) Advertising contract or contract for public
relations services;
(f) Purchase, supply, or service contracts of a duration less
than one (1) year in excess of $100,000 each, or in the aggregate of $500,000
for all such contracts whether below or above $100,000;
(g) Deed of trust, mortgage, conditional sales contract,
security agreement, pledge agreement, trust receipt, or any other agreement or
arrangement whereby any of the assets or properties of API or API(T) are
subjected to a lien, encumbrance, charge, or other restriction;
(h) Material contract or other material commitment continuing
for a period of more than thirty days and which is not terminable without cost
or other liability to API, API(T) or their successors; or
(i) Any material contract, agreement, lease or other binding
arrangement with which API or API(T) are not in substantial compliance
therewith.
(9) Records. The books of account, minute books, stock
-------
certificate books, and stock transfer ledgers of API are complete and correct,
and there have been no transactions involving the business of API which properly
should have been set forth in said respective books, other than those set forth
therein.
(10) Vote Required. The affirmative vote of the holders of a
--------------
majority of the outstanding shares of API common stock to approve this Agreement
(the "Required API Vote") is the only vote of the holders of any class or series
of API capital stock necessary to adopt this Agreement and approve the
transactions contemplated hereby.
(11) Taxes. API and API(T) have duly fulfilled all necessary tax
-----
filings required in their respective jurisdictions up to the date hereof. All
of the foregoing returns are true and correct in all material respects and API
and API(T) have paid or provided for all taxes, interest and penalties shown on
such returns or reports as being due. API and API(T) have no liability for any
material amount of taxes, interest or penalties of any nature whatsoever, except
for those taxes which may have accrued up to the Closing Date in the ordinary
course of business and are properly accrued on the books of API and API(T) as of
the Closing Date.
13
(12) Environmental Matters. API is aware of no actions,
----------------------
proceedings or investigations pending or, to the actual knowledge of API,
threatened before any environmental regulatory body alleging noncompliance by
API and API(T) with any Environmental Laws. To the knowledge of API: (i) there
is no reasonable basis for the institution of any action, proceeding or
investigation against API and API(T) under any Environmental Law; (ii) API and
API(T) are not responsible under any Environmental Law for any release by any
person at or in the vicinity of real property of any hazardous substance caused
by the spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing of any such hazardous
substance into the environment; (iii) API and API(T) are not responsible for any
costs of any remedial action required by virtue of any release of any toxic or
hazardous substance, pollutant or contaminant into the environment including,
without limitation, costs arising from security fencing, alternative water
supplies, temporary evacuation and housing and other emergency assistance
undertaken by any environmental regulatory body; (iv) API and API(T) are in
substantial compliance with all applicable Environmental Laws; and (v) no real
property used, owned, managed or controlled by API and API(T) contains any toxic
or hazardous substance including, without limitation, any asbestos, PCBs or
petroleum products or byproducts in any form, the presence, location or
condition of which (a) violates any Environmental Law, or (b) otherwise would
pose any significant health or safety risk unless remedial measures were taken.
(13) Brokers or Finders. API shall be entitled to employ the
--------------------
services of Brokers or Finders for the purpose of raising the New Cash Capital,
and shall be entitled to pay brokerage commissions on a cash basis, by API
shares or a combination thereof, however API shall only be entitled to issue up
to 100,000 API Shares for such commission payments. API hereby acknowledges
that any such brokerage commissions paid in cash shall be for API's account and
shall not be drawn from nor diminish the amount of the New Cash Capital raised.
(14) Absence of Certain Changes or Events. Except as set forth on
------------------------------------
Schedule 3.2(14), since September 30, 1999, there has not been any material
adverse change in, or event or condition materially and adversely affecting the,
condition (financial or otherwise), properties, assets, liabilities or, to the
knowledge of API, the business or prospects of API.
(15) Full Disclosure. To API's knowledge and belief, this
----------------
Agreement, and any schedules and certificates delivered by API in connection
herewith or with the transactions contemplated hereby, taken as a whole, neither
contain any untrue statement of a material fact nor omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. To API's knowledge and belief, there are no facts which
(individually or in the aggregate) materially adversely affect the business,
assets, liabilities, financial condition or operations of API that have not been
set forth in this Agreement, the Schedules hereto or in other documents
delivered by API in connection herewith.
(16) No Business Activities by BREF. API has obtained approval
--------------------------------
from Thailand to register a real estate fund, known as the Bangkok Real Estate
Fund ("BREF"), but has not actually formed BREF.
14
(17) API Shares. The Shares of API, $.01 par value common stock to
----------
be issued to the NCL Shareholders hereunder, will be validly issued, fully paid
and non-assessable and will be registered for trading over the counter under the
symbol "ASPZ" or on such other basis or exchange upon which such Shares may be
traded in the future.
ARTICLE IV
ADDITIONAL AGREEMENTS
Section 4.1 Shareholder Meetings. As a condition precedent to the execution
--------------------
of this Agreement, the NCL Shareholders shall have approved the transactions
described in this Agreement and provided NCL with a Shareholders' Resolution
(attached hereto as Schedule 4.1(1)). NCL shall have duly called, noticed,
convened and held a meeting of the NCL Shareholders (the "NCL Shareholders'
Meeting") for the purpose of obtaining the Required NCL Vote with respect to
this Agreement, and shall have taken all lawful action to obtain the approval of
this Agreement by the Required NCL Vote. Prior to the execution of this
Agreement, the Board of Directors of NCL shall have resolved to ratify this
Agreement and shall have recommended approval of this Agreement to the NCL
Shareholders (this resolution of the Board of Directors of NCL is attached
hereto as Schedule 4.1(2)).
Section 4.2 Interim Budget. API acknowledges that NCL is and shall
---------------
continue to incur debts as a result of ongoing capital expenditures and
operating costs for the Subject Companies which borrowings shall be repaid from
the New Cash Capital. Prior to the execution of this Agreement, the Parties
hereto shall have executed a written budget (the "Budget") with respect to the
operating budget of API for the six (6) months following the execution of this
Agreement. Under this Budget, it is shall be understood that NCL may borrow
money to pay any and all expenses comprising ongoing capital expenditures and
operating costs for the Subject Companies during that six month period, however,
when and if API raises the New Cash Capital pursuant to Section 2.1 herein, NCL
shall be entitled to reimbursement of all monies advanced to the Subject
Companies plus interest in an amount equal to LIBOR plus 1.5% payable upon
receipt of the New Cash Capital in the New Cash Account. Expenditures in
excess of the Budget shall be subject to prior approval of the Board of New API.
A copy of the Budget is attached hereto Schedule 4.2.
Section 4.3 Access to Information. Upon reasonable notice, each Party shall
---------------------
(and shall cause its subsidiaries to) afford to the officers, employees,
accountants, counsel, financial advisors and other representatives of the other
Party reasonable access during normal business hours, during the period prior to
the Closing Date, to all its properties, books, contracts, commitments and
records and, during such period, such Party shall (and shall cause its
subsidiaries to) furnish promptly to the other Party (a) a copy of each report,
schedule and documents filed, published, announced or received by it during such
period pursuant to the requirements of federal or state securities laws, as
applicable (other than documents which such Party is not permitted to disclose
under applicable law), and (b) consistent with its legal obligations, all other
information concerning its business, properties and personnel as such other
Party may reasonably request; provided, however, that either Party may restrict
the foregoing access to the extent that (i) a governmental entity requires such
Party or any of its subsidiaries to restrict access to any properties or
15
information reasonably related to any such contract on the basis of applicable
laws and regulations with respect to national security matters or (ii) any law,
treaty, rule or regulation of any governmental entity applicable to such Party
requires such Party or its subsidiaries to restrict access to any properties or
information. The Parties will hold any such information which is non-public in
strict confidence.
Section 4.4 Best Efforts.
-------------
(1) Subject to the terms and conditions of this Agreement,
each Party will use its best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate this Agreement and the other
transactions contemplated by this Agreement as soon as practicable after the
date hereof. Nothing in this Section 4.4(1) shall require NCL and its
subsidiaries to sell or otherwise dispose of, or permit the sale or other
disposition of, any assets of NCL or its respective subsidiaries, whether as a
condition to obtaining any approval from a governmental entity or any other
person or for any other reason, if NCL and API reasonably determine that such
sale or other disposition would have or is likely to have a Material Adverse
Effect on NCL and its subsidiaries, taken together, after giving effect to this
Agreement.
(2) In furtherance and not in limitation of the covenants of
the Parties contained in Section 4.4(1), if any administrative or judicial
action or proceeding, including any proceeding by a private party, is instituted
(or threatened to be instituted) challenging any transaction contemplated by
this Agreement, each of API and NCL shall cooperate in all respects with each
other and use its respective best efforts to contest and resist any such action
or proceeding and to have vacated, lifted, reversed or overturned any decree,
judgment, injunction or other order, whether temporary, preliminary or
permanent, that is in effect and that prohibits, prevents or restricts
consummation of the transactions contemplated by this Agreement. However,
neither Party is obligated to expend funds with respect to any actions or
proceedings for which the other Party is solely liable or culpable.
ARTICLE V
CONDITIONS TO CLOSING
Section 5.1 Conditions to Each Party's Obligation to Effect the Share
---------------------------------------------------------------
Exchange. Except as may be waived in writing by the Parties, all of the
obligations of the Parties under this Agreement are subject to the fulfillment,
prior to the date of execution of this Agreement, of each of the following
conditions:
(1) Shareholder Approval. Both NCL and API shall have
---------------------
obtained the required shareholder vote in connection with the adoption of this
Agreement.
16
(2) No Injunctions, Restraints or Illegality. No laws shall
-----------------------------------------
have been adopted or promulgated, and no temporary restraining order,
preliminary or permanent injunction or other order issued by a court or other
governmental entity of competent jurisdiction shall be in effect, having the
effect of making this Agreement illegal or otherwise prohibiting consummation of
the Agreement, provided however, that the provisions of this Section 5.1(2)
shall not be available to any Party whose failure to fulfill its obligations
pursuant to Section 4.3 shall have been the cause of, or shall have resulted in,
such order or injunction.
Section 5.2 Additional Conditions to Obligations of API. The obligations of
-------------------------------------------
API to close this Agreement are subject to the satisfaction of, or waiver by
API, on the date of execution of the Agreement of the following conditions:
(1) Representations and Warranties. The representations and
--------------------------------
warranties of NCL set forth in Section 3.1 shall be true and correct in all
material respects as of the date of execution of the Agreement, subject to any
changes contemplated by this Agreement.
(2) Performance of Obligations of NCL. NCL shall have
-------------------------------------
performed or complied in all material respects with all agreements and covenants
required to be performed by it under this Agreement at or prior to the date of
execution of the Agreement.
(3) No Adverse Change. In accordance with Section 3.1(13),
-------------------
NCL shall not have suffered any adverse change, adversely affecting the
condition (financial or otherwise) at the time of entering into this Agreement
that cannot be satisfied through legally available funds of NCL.
(4) Certificate of Managing Director. NCL shall have
-----------------------------------
delivered to API a certificate executed in its corporate name by, and verified
by, the oath of its Managing Director certifying the fulfillment of the
conditions specified in this Section 5.2. This certificate is attached hereto as
Schedule 5.2(4).
Section 5.3 Additional Conditions to Obligations of NCL. The obligations of
-------------------------------------------
NCL to effect the Share Exchange are subject to the satisfaction of, or waiver
by NCL, on or prior to the date of execution of the Agreement of the following
conditions:
(1) Representations and Warranties. The representations and
--------------------------------
warranties of API set forth in Section 3.2 shall be true and correct in all
material respects as of the date of execution of the Agreement, subject to any
changes contemplated by this Agreement.
(2) Performance of Obligations of API. API shall have
-------------------------------------
performed or complied in all material respects with all agreements and covenants
required to be performed by it under this Agreement at or prior to date of
execution of the Agreement.
17
(3) No Adverse Change. In accordance with Section 3.2(14),
-------------------
API shall not have suffered any adverse change, adversely affecting the
condition (financial or otherwise) at the time of entering into this Agreement
that cannot be satisfied through legally available funds of API.
(4) Certificate of Chief Executive Officer. API shall have
-----------------------------------------
delivered to NCL a certificate executed in its corporate name by, and verified
by, of its chief executive officer certifying the fulfillment of the conditions
specified in this Section 5.3. This certificate is attached hereto as Schedule
5.3(4).
ARTICLE VI
NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Section 6.1 All statements of fact contained herein, any certificate or
schedule delivered by or on behalf of NCL or API pursuant to the terms hereof,
shall be deemed representations and warranties made by NCL and API,
respectively, to each other under this Agreement. The representations and
warranties of the Parties shall survive the Closing Date for a period of one
year.
Section 6.2 NCL shall indemnify and hold API harmless against, from and in
respect to (and shall on demand reimburse API for) any and all damages, losses,
obligations, liabilities, claims, encumbrances, liens, deficiencies, costs and
expenses (including, without limitation, reasonable attorneys' fees and other
costs and expenses incident to any suit, action, investigation, claim or
proceeding) in excess of $10,000.00 in the aggregate, suffered, sustained,
incurred or required to be paid from:
(1) Any and all losses, liabilities or damages suffered or
incurred by API by reason of any untrue representation or the breach of any
warranty or covenant of NCL contained herein or in any certificate, document or
instrument delivered to API pursuant hereto or in connection herewith; and
(2) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including, without limitation, legal
fees, expenses and costs, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
Section 6.3 API shall indemnify and hold NCL harmless against, from and in
respect to (and shall on demand reimburse NCL for) any and all damages, losses,
obligations, liabilities, claims, encumbrances, liens, deficiencies, costs and
expenses (including, without limitation, reasonable attorneys' fees and other
costs and expenses incident to any suit, action, investigation, claim or
proceeding) in excess of $10,000.00 in the aggregate, suffered, sustained,
incurred or required to be paid from:
(1) Any and all losses, liabilities or damages suffered or
incurred by NCL by reason of any untrue representation or the breach of any
warranty or covenant of API contained herein or in any certificate, document or
instrument delivered to NCL pursuant hereto or in connection herewith; and
(2) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including, without limitation, legal
fees, expenses and costs, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
18
ARTICLE VII
TERMINATION AND AMENDMENT
Section 7.1 Termination. This Agreement may be terminated at any time prior
-----------
to the Closing Date, by action taken or authorized by the boards of directors of
the terminating Party or Parties, whether before or after approval of the
matters presented in connection with this Agreement by the shareholders of NCL
or API:
(1) By mutual written consent of API and NCL, by action of their
respective boards of directors;
(2) By either NCL or API if the Closing Date shall not have
occurred as provided in section 1.2 above and no agreement for extension of the
Closing Date has been made (the "Termination Date"); provided, however, that the
right to terminate this Agreement under this Section 7.1 shall not be available
to any Party whose failure to fulfill any obligation under this Agreement
(including without limitation Section 4.3) has to any extent been the cause of,
or resulted in, the failure of the Closing Date to occur on or before the
Termination Date; or
(3) By either NCL or API if the approval by the NCL Shareholders
required for the consummation of the Share Exchange shall not have been obtained
by reason
of the failure to obtain the Required NCL Vote at a duly held meeting of the NCL
Shareholders or at any reconvened meeting after any adjournment or postponement
thereof.
(4) By either NCL or API if any condition precedent contained in
Article V has failed to occur and such failure has not been waived by the other
Party or cured in time to comply with Section 7.1(2).
(5) By either Party in the event of any material breach,
non-performance or non-observance of the other Party of the terms and conditions
herein contained, and where the breaching Party does not remedy such breach
within seven (7) days after receipt of written notice of any such breach,
non-performance or non-observance of such terms and conditions.
Section 7.2 Effect of Termination. In the event of termination
---------------------
of this Agreement by either NCL or API as provided in Section 7.1, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of API or NCL or their respective officers or directors.
Section 7.3 Amendment. This Agreement may be amended in writing by the
---------
Parties hereto, by action taken or authorized by their respective boards of
directors, at any time before or after approval of the matters presented in
connection with this Agreement by the NCL Shareholders, but after any such
approval, no amendment shall be made which by law or in accordance with the
rules of any relevant stock exchange requires further approval by such
shareholders without such further approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the Parties
hereto.
19
Section 7.4 Extension; Waiver. At any time prior to the Closing Date, the
------------------
Parties hereto by action taken or authorized by their respective boards of
directors may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other Parties hereto,
(ii) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto and (iii) waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a Party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such Party. The failure
of any Party to this Agreement to assert any of its rights under this Agreement
or otherwise shall not constitute a waiver of those rights.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Announcement. The Parties agree to draft an announcement
------------
relating to this Agreement within twenty four (24) hours of the execution
hereof, which announcement shall be released through the Business News Wire
services.
Section 8.2 Counterparts and Facsimile Signatures. In order to facilitate
--------------------------------------
the execution of this Agreement, the same may be executed in any number of
counterparts and signature pages may be delivered by telefax.
Section 8.3 Assignment. Neither this Agreement nor any right created hereby
----------
shall be assignable without the prior written consent of the other Party.
Nothing in this Agreement, express or implied, is intended to confer upon any
person, other than the Parties hereby and their respective successors, assigns,
heirs, executors, administrators, or personal representatives, any rights or
remedies under or by reason of this Agreement.
Section 8.4 Entire Agreement. This Agreement, the schedules hereto, and the
----------------
other documents delivered pursuant hereby constitute the full and entire
understanding and agreement between the Parties with regard to the subject
hereof and no Party shall be liable or bound to any other in any manner by any
representations, warranties, covenants, conditions or agreements except as
specifically set forth herein. All prior agreements and understandings are
superseded by this Agreement and the schedules hereto.
Section 8.5 Dispute Resolution/Governing Law.
----------------------------------
(1) Mediation. Should any dispute arise among the parties to this
----------
Agreement, notice of that dispute shall be delivered by overnight mail
international courier service to all other parties to this Agreement setting
forth the date, time and place for a meeting to attempt to mediate and resolve
the dispute prior to the filing of a demand for arbitration. The parties will
use good faith and best efforts to accommodate one another in establishing a
meeting within two weeks from the date of the notice. If the parties cannot
agree on a time and place for a mediation conference within 30 days from the
date of the original notice of dispute, then the party submitting the notice of
dispute shall be permitted to instigate arbitration pursuant to the following
terms and conditions.
20
(2) Arbitration. Any dispute which cannot be resolved pursuant to
-----------
Section 8.5(1) shall be submitted to Arbitration before a panel of one (1)
arbitrator to be mutually agreed upon by the parties, in Los Angeles, California
in accordance with the rules of the Judicial Arbitration and Mediation Services
then pertaining and judgment upon the award entered by the arbitrator may be
entered in any court of competent jurisdiction to enforce same pursuant to the
rules of the Uniform Enforcement of Arbitration Act or applicable international
rules. Any award may include an award of costs of the arbitration including
reasonable attorneys fees.
(3) Governing Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of California, United States
of America. The parties hereto agree that all disputes are subject to binding
arbitration set forth hereinabove and submit to the jurisdiction of the Judicial
Arbitration and Mediation Services ("JAMS"), in the County of Los Angeles, State
of California, for all proceedings, including enforcement of any award and/or
judgment rendered pursuant to said award.
Section 8.6 Severability. In case any provision of this Agreement shall be
------------
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 8.7 Notices. Any notice, communication, request, reply, or advice,
-------
hereinafter severally and collectively called "notice," in this Agreement
provided or permitted to be given, made or accepted by either Party to the other
must be in writing and may be given by personal delivery or mail, or confirmed
telefax. If given by mail, such notice must be sent by registered or certified
mail, postage prepaid, mailed to the Party at the respective address set forth
below, and shall be effective only if and when received by the Party to be
notified. For purposes of notice, the addresses of the Parties shall, until
changed as hereinafter provided, be as follows:
(1) If to API or API(T):
ASIA PROPERTIES, INC., ASIA PROPERTIES INVESTMENTS, LTD. OR
ASIA PROPERTIES (THAILAND) LTD.
Attn: Xx. Xxxxxxxx St. Xxxxxxxx
Chief Executive Officer
86/14 Xxxxxxxxx 00
Xxxxxxx 00000 Xxxxxxxx
Telefax: (000) 000-0000
With a copy to:
XXXXXXX XXXXX XXXXXXX & INGERSOLL, LLP
Attn: Xxxxx X. Xxxxxxxx, Esq.
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Telefax: (000) 000-0000
21
(2) If to NCL or the NCL Shareholders:
NORTHBRIDGE COMMUNITIES LTD.
Attn: Xxxxxx X. Xxxxxxx or Vorasit Pokachaiyapat
7th Floor, XXXXX Xxxxx
00 Xxxxx Xxxxxxx Xxxx
Xxxxxxx 00000 Xxxxxxxx
Telefax (000) 000-0000
With a copy to:
KING, XXXXXXX & XXXXX LLP
Attn: Xxxxx X. Xxxx, Esq.
000 Xx. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telefax: (000) 000-0000
or at such other address or telefax number as either Party may have advised the
other in writing.
Section 8.8 Attorneys' Fees. If any action at law or in equity, including
----------------
an action for declaratory relief, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party in any such action shall be
entitled to recover reasonable attorney fees and costs from the other Party or
Parties, which fees and costs shall be in addition to any other relief which may
be awarded.
IN WITNESS WHEREOF, this Agreement is hereby duly executed by each Party
hereto in duplicate as of the date first written above.
ASIA PROPERTIES, INC.,
ASIA PROPERTIES INVESTMENTS, INC. AND
ASIA PROPERTIES (THAILAND) LIMITED
By: /s/ Xxxxxxxx St. Xxxxxxxx
----------------------------
Xxxxxxxx St. Xxxxxxxx
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------
Xxxxxx X. XxXxxxxx
NORTHBRIDGE COMMUNITIES LIMITED
By: /s/ Xx. Xxxxxx Xxxxxxx
-------------------------
Xx. Xxxxxx Xxxxxxx
Director
NORTHBRIDGE COMMUNITIES LIMITED
By: /s/ Vorasit Pokachaiyapat
---------------------------
Vorasit Pokachaiyapat
Director
22
SHAREHOLDERS OF NORTHBRIDGE COMMUNITIES LIMITED
By: /s/ Xx. Xxxxxx Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxx
By: /s/ Xx. Xxxxxx Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxx
By: /s/ Xx. Xxxxxx Xxxxxxx
-------------------------
Xxxxxxxx X. Xxxxx
By: /s/ Vorasit Pokachaiyapat
---------------------------
Asian Frontier Holdings Limited
By: /s/ Vorasit Pokachaiyapat
---------------------------
Xxxxxx Xxxxxxxxxx
By: /s/ Xx. Xxxxxx Xxxxxxx
-------------------------
NBC Holdings Limited
By:
---------------------------
Siam Investment Fund
By: /s/ Xx. Xxxxxx Xxxxxxx
-------------------------
Loadhall Investments A.V.V.
By: /s/ Vorasit Pokachaiyapat
---------------------------
Finansa Investment Advisors Ltd.
AS TO ARTICLE II:
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------
Xxxxxx X. XxXxxxxx
By: /s/ Xxxxxxxx St. Xxxxxxxx
---------------------------
Xxxxxxxx St. Xxxxxxxx
23
By: /s/ Xxx Xxxx-Im
-----------------
Xxx Xxxx-Im
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------
Crestview Associates Limited
By: /s/ Xxxxxxxx St. Xxxxxxxx
----------------------------
Xxxxxxxx Limited
SCHEDULE A
Current Shareholders of NCL and Shareholding Interest
SHAREHOLDER NO. OF COMMON SHARES PERCENT
N.B.C. HOLDINGS 2,040,000 51.00%
XX. XXXXXX XXXXXXXXXX 800,000 20.00%
ASIAN FRONTIER HOLDINGS 565,990 14.15%
SIAM INVESTMENT FUND 250,000 6.25%
FINANSA INVESTMENT ADVISORS 175,204 4.38%
LTD.
LOADHALL INVESTMENTS A.V.V. 144,796 3.62%
XX. XXXXXXXX XXXXX 12,000 0.30%
MR. XXXXXXX XXXXXX 6,000 0.15%
MR. XXXXXXX XXXXX 6,000 0.15%
XXXX XXXXX INTARAKLY 1 0.00%
XX. XXXXXXX XXXXXXXXXXXXX 1 0.00%
MRS. CHANPEN LAOHARAWEE 1 0.00%
MISS SUJIN JUTTAWANICH 1 0.00%
MISS YUPADEE THEPRUENGCHAI 1 0.00%
XXXX XXXXXXXX XXXXXXXXXXX 1 0.00%
MISS PRAPAIPIS PRADITVEKIN 1 0.00%
MR. PICHAYAN TATANAPOL 1 0.00%
MR. VORATORN POKACHAIYAPAT 1 0.00%
MR. THANATHIP VIDHAYASIRINUN 1 0.00%
TOTAL SHARES 4,000,000 100.00%
24
SCHEDULE 1.1(2)
Asset Valuation
NORTHBRIDGE COMMUNITIES LTD.
ADJUSTED BALANCE SHEET (AS AT SEPTEMBER 30, 1999)
Exchange rate - Baht:US$ 37.31
ASSETS
------
US$
-----
CURRENT ASSETS
Cash in hand and at banks 18,729
Advance to director 4,071
Amt. Due from subsidiaries & related co.
-Advance to NBC Holdings 7,336
-Advance to Keltic (573) 6,763
Other current assets 28,746
-----------
TOTAL CURRENT ASSETS 58,310
NBC PROJECTS :
1) GM Projects - 100% 6,081,479
2) Palanamai - 45% 2,618,467
MCC Loan - 45% (843,660)
Phatra Loan -45% (597,412) 1,177,395 23,521,418
3) ISE - 25% 2,674,886
TFB - 25% (462,343) 2,212,554
4) Cambodia Project 14,050,000
Fixed assets - Office
Office equipment 5,804
Vehicles 4,366 10,170
Other assets 192
-----------
TOTAL ASSETS 23,590,090
-----------
LIABILITIES & SHAREHOLDER'S EQUITY
----------------------------------
US$
----
CURRENT LIABILITIES
Post dated cheques 545,849
Accrued interest expense 487,640
Account payable - GM Project 818,319
Accrued expense 34,933
Accrued withholding income tax 187
-----------
TOTAL CURRENT LIABILITIES 1,886,929
Rental income received in advance 1,443,109
Amounts due to related companies
Advance from Finansa 3,538.47
Advance from AFH 395,764.89 399,303
Loan from related co.
Loan from AFH 9,289,107 9,289,107
-----------
TOTAL LIABILITIES 13,018,448
-----------
NCL'S NET WORTH 10,471,642
-----------
25
SCHEDULE 2.4
API Escrow Agreement
ESCROW AGREEMENT
This ESCROW AGREEMENT (the "Agreement") is made and entered into on the
____ day of February, 2000, among ASIA PROPERTIES, INC., a company incorporated
under the laws of the State of Nevada, ASIA PROPERTIES INVESTMENTS, INC., a
company incorporated under the laws of the British Virgin Islands and ASIA
PROPERTIES (THAILAND) LIMITED, a company incorporated under the laws of Thailand
(collectively referred to herein as "API"), NORTHBRIDGE COMMUNITIES LIMITED, a
Thai limited company ("NCL"), the SHAREHOLDERS OF NCL (the "NCL Shareholders")
certain shareholders of API, XXXXXX X. XXXXXXXX, XXXXXXXX ST. XXXXXXXX, XXX
XXXX-IM, CRESTVIEW ASSOCIATES LIMITED, a company incorporated under the laws of
Hong Kong ("Crestview") and XXXXXXXX LIMITED, a company incorporated under the
laws of the British Virgin Islands ("Xxxxxxxx"), (hereinafter collectively
referred to as the "API Shareholders") and KING, XXXXXXX & XXXXX, L.L.P., a
Louisiana Limited Liability Partnership ("Escrow Agent").
RECITALS
A. API, the API Shareholders, NCL and the NCL Shareholders are parties
to a Share Purchase and Sale Agreement dated February ___, 2000, (the "Purchase
Agreement"), pursuant to which API acquired from NCL the share capital of NCL as
set forth in the Purchase Agreement. As applicable, unless otherwise defined
herein, capitalized terms used herein have the meanings accorded to such terms
in the Purchase Agreement.
B. Pursuant to the Purchase Agreement, the API Shareholders have agreed
to deposit 3,500,000 shares of the common stock of API in escrow to be paid to
the NCL Shareholders in the event API fails to raise a minimum of US$15 million
in new cash capital at a price of at least US$4.40 per Share ("New Cash
Capital") within 220 days of the date of execution of the Purchase Agreement, in
accordance with the terms of the Purchase Agreement.
C. The Escrow Agent is willing to act as the escrow agent under this
Agreement.
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein, and for good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
1. DEPOSITS
1.1 Establishment of Escrow.
-------------------------
The API Shareholders hereby deliver to and deposit in escrow with the
Escrow Agent the following numbers of shares of common capital stock of API (the
"API Shares"), issued in the names of the API Shareholders listed below,
together with share transfers executed in blank. The API Shares shall be held
and released by the Escrow Agent in accordance with the terms and conditions of
this Agreement. In addition, API, NCL and the NCL and API Shareholders hereby
deliver to the Escrow Agent a fully executed original copy of the Purchase
Agreement:
26
API Shareholders Number of API Shares Shares
----------------- ----------------------- ------
Xxxxxx X. XxXxxxxx 800,000
Xxxxxxxx St. Xxxxxxxx 900,000
Xxx Xxxx-Im 600,000
Crestview Associates Limited 700,000
Xxxxxxxx Limited 500,000
----------------- -----------------------
TOTAL 3,500,000
The API Shares deposited pursuant hereto are collectively referred to as
the "Escrow Shares".
2. DELIVERIES AND DRAWS
2.1 Additional Capital.
-------------------
A. In the event API is successful in raising US$15 million in New Cash
Capital within 220 days of the date of execution of the Purchase Agreement in
accordance with the terms of the Purchase Agreement, it shall deliver a copy of
a written notice of the terms and conditions upon which the New Cash Capital has
been raised (the "Notice"). The Notice shall contain specific information
relating to the New Cash Capital, including the amount of New Cash Capital, a
written confirmation from the Bank where the New Cash Account is located, the
number of shares issued in connection therewith and the names of the
shareholder(s) to whom such shares have been issued. If said New Cash Capital
has been raised in compliance with the terms and conditions set forth in the
Purchase Agreement, the Escrow Shares shall be redelivered to the API
Shareholders.
B. In the event API fails to raise a minimum of US$15,000,000 within 220
days of the date of execution of the Purchase Agreement in accordance with the
terms of the Purchase Agreement, the Escrow Agent shall deliver one half
(1,750,000) of the Escrow Shares to the NCL Shareholders in accordance with the
Purchase Agreement. In such case, the Escrow Agent shall submit to the transfer
agent for API the Escrow Shares for reissuance as follows. One-half of the
number of API Shares of each API Shareholder listed in Section 1.1 hereof shall
be reissued in the name of the Escrow Agent as Escrow Agent for the benefit of
each said API Shareholder. 1,750,000 Escrow Shares shall be reissued in the
names of the NCL Shareholders in proportion to the shareholding interest of each
NCL Shareholder in NCL as set forth on Schedule "A" to the Purchase Agreement.
The remaining 1,750,000 Escrow Shares shall remain in escrow pursuant to the
terms and conditions of Section 2.6 of the Purchase Agreement.
C. Any remaining Escrow Shares being held in escrow pursuant to Section 2.6
of the Purchase Agreement shall be delivered in accordance with Section 2.6 of
the Purchase Agreement as follows. Any Escrow Shares which are to be delivered
to the API Shareholders shall be delivered to the transfer agent for API for
reissuance in the names of the API Shareholders in proportion to the ratio of
the number of API Shares deposited in escrow by each API Shareholder over
3,500,000 and shall be delivered to the said API Shareholders immediately upon
such reissuance and receipt by the Escrow Agent. Any Escrow Shares to be
delivered to the NCL Shareholders shall be delivered to the transfer agent for
API for reissuance to the NCL Shareholders in proportion to the shareholding
interest of each NCL Shareholder in NCL as set forth on Schedule "A" to the
Purchase Agreement.
27
2.2 Release of Escrow Shares.
---------------------------
The Escrow Shares shall be delivered to the NCL Shareholders or to the API
Shareholders pursuant to Section 2.1 hereof upon the dates set forth therein.
If any dispute, arbitration, suit or other proceeding or action that has not
been expressly waived pursuant to the Purchase Agreement is commenced by any
party hereto restraining or preventing the release of the Escrow Shares, the
Escrow Shares shall be held, and the time period for release shall be extended,
until such matter is fully and finally resolved and all time periods for appeal
have expired.
2.3 Termination of Escrow.
-----------------------
The escrow shall terminate upon release of all the Escrow Shares in
accordance with the terms and conditions of this Agreement. Upon release by the
Escrow Agent of all the Escrow Shares as provided herein, the duties of the
Escrow Agent shall be completed and the Escrow Agent shall have no further
obligations under this Agreement to any other party.
3. THE ESCROW AGENT
3.1 Performance.
-----------
Escrow Agent undertakes to perform the duties only as are specifically set
forth in this Agreement and may conclusively rely and shall be protected in
acting or refraining from acting, on any written notice, instruction, waiver,
consent, receipt or other paper or document which the Escrow Agent, in good
faith, believes to be genuine and what it purports to be. The Escrow Agent shall
in no event be liable for any damage caused by the performance of its duties as
Escrow Agent, except to the extent that the damages result from gross
negligence, willful misconduct or willful breach of this Agreement by the Escrow
Agent. The Escrow Agent is neither a party to or bound by, or charged with
notice of the terms, provisions, legalities, validity, or sufficiency of the
documents delivered to it (other than this Agreement and any notices delivered
pursuant to this Agreement) and it shall not be liable or responsible for its
failure to ascertain the terms or conditions or to comply with any other
provisions, of any such document.
3.2 Delivery.
--------
Upon making such delivery, and performance of any other services included
above, the Escrow Agent will thereupon be released and acquitted from any
further liabilities concerning this Agreement or the Escrow Shares, it being
expressly understood that such liability in any event is limited by the terms
and conditions set forth herein. By acceptance of this agency, the Escrow Agent
in no way assumes responsibility for the validity or authenticity of the subject
matter of the deposit. In the event that the Escrow Agent's duties under this
Agreement shall conflict with any provision of the Purchase Agreement or this
Escrow Agreement, this Agreement shall control.
28
3.3 Indemnification.
---------------
API, NCL, and the NCL and API Shareholders shall, jointly and severally,
indemnify and hold the Escrow Agent, and each partner, employee, attorney, agent
and affiliate of the Escrow Agent (collectively the "Indemnified Parties")
harmless from any cost, damages, expenses, or claims, including reasonable
attorney's fees which Indemnified Parties may incur or sustain as a result of or
arising out of this Agreement or the Indemnified Parties' duties relating
thereto and will pay them upon demand, except as a result of or arising out of
Indemnified Parties' gross negligence, willful misconduct or willful breach of
this Agreement.
3.4 Resignation and Removal.
-------------------------
The Escrow Agent may resign and be discharged from its duties hereunder at any
time by giving notice of such resignation to API, NCL, the NCL Shareholders and
the API Shareholders specifying a date not less than thirty (30) days after the
giving of such notice when such resignation shall take effect. Promptly after
such notice, a successor escrow agent shall be appointed by mutual agreement of
API, NCL, the NCL Shareholders and the API Shareholders, such successor agent to
become escrow agent hereunder upon the resignation date specified in such
notice. If NCL, API, the NCL Shareholders and the API Shareholders are unable
to agree upon a successor escrow agent within thirty (30) days after such
notice, the Escrow Agent shall be entitled to appoint its successor. The Escrow
Agent shall continue to serve until its successor accepts the escrow and
receives the Escrow Shares. API, NCL, the NCL Shareholders and the API
Shareholders may agree at any time to substitute a successor escrow agent by
giving notice thereof to the escrow agent then acting.
4. MISCELLANEOUS
4.1 Notices.
-------
All notices, requests, demands and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given on the date of service if served personally on the party to whom
notice is to be given, or on the fifth day after mailing if mailed to the party
to whom notice is to be given, via first class mail, registered or certified,
postage paid and properly addressed as follows:
IF TO API:
00/00 Xxxxxxxxx 00
Xxxxxxx 00000 Xxxxxxxx
Telefax: (000) 000-0000
Attn: Xx. Xxxxxxxx St. Xxxxxxxx
Chief Executive Officer
With a copy to:
Ballard, Spahr, Xxxxxxx & Ingersoll, LLP
Attn: Xxxxxxx X. Xxxxxx
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
29
IF TO NCL or the NCL Shareholders:
Northbridge Communities Limited
XXXXX Xxxxx
00 Xxxxx Xxxxxxx Xxxx, 0/X
Xxxxxxx 00000 Xxxxxxxx
Attention: Xxxxxxx X. Xxxxxx
IF TO THE API SHAREHOLDERS:
Xxxxxx X. XxXxxxxx
908 Universal Commercial Xxxxxxxx
00 Xxxxxx Xxxx XXX
XXXX XXXX
Xxxxxxxx St. Xxxxxxxx
c/o BDNSJ Limited
00/00 Xxxxxxxxx 00
Xxxxxxx 00000
XXXXXXXX
Xxx Xxxx-Im
X.X. Xxx 00000 XXX
XXXX XXXX
Xxxxxxxxx Associates Limited
908 Universal Commercial Xxxxxxxx
00 Xxxxxx Xxxx XXX
XXXX XXXX
Xxxxxxxx Limited
Akara Xxxxxxxx
00 XxXxxxxx Xxxxxx
Wickhamscay 1
Roadtown, Tortola
BRITISH VIRGIN ISLANDS
Any party may change its address for purposes of this paragraph by giving
the other parties written notice of the new address in the manner set forth
above.
4.3 Effect of Headings.
--------------------
The subject headings of the sections in paragraphs of this agreement are
included for purposes of convenience only, and shall not affect the construction
or interpretation of any of the provisions hereof.
4.4 Entire Agreement; Modification; Waiver.
-----------------------------------------
This Agreement constitutes the sole and entire agreement between the
parties pertaining to the subject matter contained herein, and supersedes all
prior and contemporaneous agreements, representations and undertakings of the
parties. No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by all parties.
30
4.5 Counterparts.
------------
This Agreement may be executed simultaneously in any one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.6 Binding Effect.
---------------
This Agreement shall be binding upon, and shall inure to the benefit of,
the parties hereto and their respective heirs, legal representatives, successors
and assigns.
4.7 Governing Law.
--------------
This Agreement shall be governed by, and construed in accordance with the
laws of the State of Louisiana.
THIS AGREEMENT was executed as of the date and year first set forth above.
ASIA PROPERTIES, INC., ASIA
PROPERTIES INVESTMENTS, INC., ASIA
PROPERTIES (THAILAND) LIMITED
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------------------
President
NORTHBRIDGE COMMUNITIES LIMITED
By: /s/ Xx. Xxxxxx Xxxxxxx
----------------------------------------
By: /s/ Vorasit Pokachaiyapat
----------------------------------------
Directors
API SHAREHOLDERS:
/s/ Xxxxxx X. XxXxxxxx
----------------------------------------
Xxxxxx X. XxXxxxxx
/s/ Xxxxxxxx St. Xxxxxxxx
----------------------------------------
Xxxxxxxx St. Xxxxxxxx
/s/ Xxxxxx X. XxXxxxxx
----------------------------------------
Xxx Xxxx-Im
31
CRESTVIEW ASSOCIATES LIMITED
By: s/ Xxxxxx X. XxXxxxxx
----------------------------------------
XXXXXXXX LIMITED
By: /s/ Xxxxxxxx St. Xxxxxxxx
----------------------------------------
NCL SHAREHOLDERS
By: /s/ Xx. Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
By: /s/ Xx. Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
By: /s/ Xx. Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxxxx X. Xxxxx
By: /s/ Vorasit Pokachaiyapat
----------------------------------------
Asian Frontier Holdings Limited
By: /s/ Vorasit Pokachaiyapat
----------------------------------------
Xxxxxx Xxxxxxxxxx
By: /s/ Xx. Xxxxxx Xxxxxxx
----------------------------------------
NBC Holdings Limited
By: ________________________________
Siam Investment Fund
By: /s/ Xx. Xxxxxx Xxxxxxx
----------------------------------------
Loadhall Investments A.V.V.
By: /s/ Vorasit Pokachaiyapat
----------------------------------------
Finansa Investment Advisors Ltd.
32
ESCROW AGENT:
KING, XXXXXXX & XXXXX, L.L.P.
By /s/ Xxxxxx XXXx
Its Partner
LIST OF OTHER SCHEDULES TO THE SHARE PURCHASE AND SALE AGREEMENT
Schedule 3.1(2) NCL's Shareholding Interest in the Subject Companies
Schedule 3.1(6) Complete List of All Assets Owned By the Subject
Companies and Leases and the Terms
Schedule 3.1(6)ii Title Exception
Schedule 3.1(8) Legal Actions, Suits, Arbitrations, Etc.
Schedule 3.1(9) Non-Compliance Matters
Schedule 3.1(10) Contracts and Obligations of NCL and the Subject Companies
(Other than Leases and Loans Shown in Schedule 3.1(6))
Schedule 3.2 API's Exceptions To Representations and Warranties
Schedule 3.2(2) Current Shareholders and Option Holders of API
Schedule 3.2(6) Legal Actions For API
Schedule 3.2(7) Unlawful Business Operations of API and API(T)
Schedule 3.2(8) Contracts and Obligation of API
Schedule 3.2(14) Changes and Events Since September 30, 1999
Schedule 4.1(1) Resolution of Shareholders of NCL
Schedule 4.1(2) Resolution of Directors of NCL
Schedule 4.2 Interim Budget
Schedule 5.2(4) Certificate of Managing Director of Northbridge Communities
Limited
Schedule 5.3(4) Certificate of Chief Executive officer of Asia Properties,
inc., Asia Properties Investments, inc. and Asia Properties
(Thailand) Limited
