Exhibit 10(a)2
THIS AGREEMENT is made on the 25th day of March 2008
BETWEEN:-
(1) Hanny Magnetics (B.V.I.) Limited , a company incorporated in British Virgin
Islands and having its registered office at P.O. Box 957, Offshore
Incorporations Centre, Road Town, Tortola, British Virgin Islands (the
"Vendor"); and
(2) China Enterprises Limited, a company incorporated in Bermuda and having its
registered office at Clarendon House, 2 Church Street, Xxxxxxxx HM11,
Bermuda (the "Purchaser").
WHEREAS:-
(A) Cosmos Regent Limited ("Cosmos") is a private company incorporated under
the laws of British Virgin Islands with limited liability and is validly
existing as at the date hereof, particulars of which are set forth in Part
I of Schedule 1 hereto.
(B) Cyber Generation Limited ("Cyber") is a private company incorporated under
the laws of British Virgin Islands with limited liability and is validly
existing as at the date hereof, particulars of which are set forth in Part
II of Schedule 1 hereto
(C) Whole Good Limited ("Whole Good") is a private company incorporated under
the laws of British Virgin Islands with limited liability and is validly
existing as at the date hereof, particulars of which are set forth in Part
III of Schedule 1 hereto.
(D) The Vendor is the registered and beneficial owner of the Sale Shares I,
Sale Shares H and Sale Shares III (as hereinafter defined).
(E) The Vendor agreed to sell and the Purchaser agreed to purchase the Sale
Shares I, Sale Shares II and Sale Shares III upon the terms and conditions
hereinafter mentioned.
AND NOW IT IS HEREBY AGREED as follows:-
1.1 In this Agreement, unless otherwise expressed or required by the context,
the following expressions shall have the respective meanings set opposite
thereto:-
Expression Meaning
---------- -------
"Completion" completion of the sale and purchase of
the Sale Shares I, Sale Shares II and
Sale Shares III in accordance with
Clause 5;
"HK$" Hong Kong Dollars;
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"Hong Kong" the Hong Kong Special Administrative
Region of the People's Republic of China;
"Sale Shares I" 1 share beneficially and legally owned by
the Vendor, representing the entire
issued share capital of Cosmos; ;
"Sale Shares II" 1 share beneficially and legally owned by
the Vendor, representing the entire
issued share capital of Cyber;
"Sale Shares III" 1 share beneficially and legally owned by
the Vendor, representing the entire
issued share capital of Whole Good
"Share Consideration" HK$38,000,000 being the aggregate
purchase price payable by the Purchaser
for the Sale Shares I, Sale Shares II and
Sale Shares III pursuant to Clause 3;
"Target Companies" Cosmos, Cyber and Whole Good and Target
Company shall mean any one of them;
"United States" The United States of America;
"USSEC" U.S. Securities and Exchange Commission;
"US$" United States Dollars
"Warranties" the warranties, representations and
undertakings set out in Clause 6 and
Schedule 2.
1.2 The headings to the Clauses of this Agreement are for ease of reference
only and shall be ignored in interpreting this Agreement.
1.3 Reference to Clauses, Schedules and Recitals are references to clauses,
schedules and recitals of or to this Agreement which shall form part of
this Agreement.
1.4 Unless the context otherwise requires, words and expressions in the
singular include the plural and vice versa.
1.5 Unless the context otherwise requires, references to a person include any
public body and any body of persons, corporate or unincorporate.
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1.6 Unless the context otherwise requires, references to Ordinances or
enactments shall be construed as a reference to such Ordinances or
enactments as they may be amended or re-enacted from time to time and for
the time being in force
2. SALE AND PURCHASE OF THE SALE SHARES
Subject to the terms and conditions contained in this Agreement, the Vendor
as legal and beneficial owner hereby agrees to sell and the Purchaser
hereby agrees to purchase the Sale Shares I, Sale Shares II and Sale Share
III at the Share Consideration free from all claims, charges, liens,
encumbrances, pre-emption rights, equities and other third party rights
whatsoever and together with all rights and benefits now attached or at any
time hereafter accruing thereto.
3. CONSIDERATION
3.1 The Share Consideration for the purchase of the Sale Shares I, Sale Shares
II and Sale Shares III shall be paid by the Purchaser to the Vendor in the
following manner : -
a) the sum of HK$10,000,000.00 as deposit to be paid by the Purchaser to
the Vendor upon signing of this Agreement; and
b) the balance of the Share Consideration for the sum of HK$28,000,000 to
be paid by the Purchaser to the Vendor upon Completion.
3.2 The Purchaser shall remit to the Vendor the Share Consideration in clear
fund pursuant to Clause 3.1 upon Completion by telegraphic transfer to the
following bank account as designated by the Vendor or such other method as
the Vendor and the Purchaser shall agree in writing:-
Name of Bank : Hang Seng Bank Limited
Address of Bank: 000 Xxxxxx Xxxx Xxxx, Xxxxxx Sha Wan
Bank Account Number : 000-000000-000
Name of Bank Account Holder : Hanny Magnetics Limited
4. CONDITIONS PRECEDENT
4.1 Completion shall be conditional upon the satisfaction of the following
conditions : -
a) the compliance and fulfillment by the Purchaser of all the
requirements under the relevant laws and/or rules or regulations in
the United States and/or the USSEC in relation to the transactions
contemplated under this Agreement (if required); and
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b) the Purchaser having completed its legal, financial, tax and other due
diligence investigation of the Target Companies and the results of
such due diligence investigation being satisfactory to the Purchaser.
4.2 If any of the conditions in Clause 4.1 above has not been satisfied (or
Clause 4.1(b) not being waived by the Purchaser) by 18 April 2008 or such
later date as may be agreed by the parties hereto : -
a) the Vendor shall within 7 days refund the deposit in the sum of
HK$10,000,000 paid under Clause 3.1(a) to the Purchaser without
interest; and
b) this Agreement shall automatically lapse and be of no further effect
(save for 1, 4, 10, 11, 12, 13, 14 and 15 which shall continue in full
force and effect), whereupon no Party to this Agreement shall have any
claim against, or liability or obligation (save for any antecedent
breaches of this Agreement) to the other Party.
5. COMPLETION
5.1 Subject to the fulfillment of the conditions under Clause 4 above,
Completion shall take place within 7 days from the date of fulfillment of
Clause 4 at the offices of the Vendor or at such other time and place as
may be agreed in writing by the parties.
5.2 The Purchaser hereby agrees to pay the Share Consideration to the Vendor in
accordance with the provisions of Clause 3.1 and 3.2 against which the
Vendor will deliver and/or cause to be delivered to the Purchaser all of
the following upon Completion:-
(a) instrument(s) of transfer in favour of the Purchaser in respect of the
Sale Shares I, Sale Shares II and Sale Shares III duly executed by the
Vendor;
(b) original share certificate(s) in respect of the Sale Shares I, Sale
Shares II and Sale Shares III ;
(c) resignation letters signed by the directors and the company
secretaries of each of the Target Companies , such letters of
resignation to state that they have no claim for compensation for loss
of office or any other claims against each of the Target Companies;
(d) the certificates of incorporation, the current business registration
certificates (if any), the minutes books, all other statutory books
and registers (duly written up to date), the chops, common seals and
all securities seals of the Target
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Companies together with all other papers and documents relating to the
Target Companies which are in the possession of or under the control
of the Vendor;
(e) certified copy of board resolutions of each of the Target
Companies : -
(i) accepting the resignation(s) of the current directors and/or
company secretary;
(ii) approving the appointment of new directors and/or company
secretary as designated by the Purchaser; and
(iii) approving the transfer of Sale Shares I, Sale Shares II and Sale
Shares III to the Purchaser and the transactions contemplated
under this Agreement.
(f) certified copy of board resolutions of the vendor approving the sale
of Sale Shares I, Sale Shares II and Sale Shares III and the
transactions contemplated under this agreement; and
(g) Certificate of Incumbency of each of the Target Companies with issue
date not earlier than five (5) days before Completion.
5.3 The transactions described in Clause 5.2 shall take place at the same time
so that in default of performance of any such transactions or any part
thereof by a party, the other party shall not be obliged to complete the
sale and purchase as aforesaid (without prejudice to any other rights and
remedies in respect of such default).
6. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
6.1 The Vendor hereby represents and warrants to and undertakes with the
Purchaser that each of the Warranties is as at the date hereof true and
correct in all respects.
6.2 The Warranties shall be deemed to be repeated at Completion.
6.3 Nothing herein contained shall prejudice either of the parties' right to
specific performance of this Agreement.
6.4 Each party hereby undertakes to execute and do and cause or procure to be
executed and done all such other documents, instruments, acts and things as
the other party may reasonably require in order to give effect to this
Agreement.
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6.5 Each party hereto hereby unconditionally and irrevocably represents to and
warrants with the other that its entry into and performance of this
Agreement will not be contrary to any applicable law.
7. SEVERABILITY
If at any time any one or more provisions hereof is or becomes invalid,
illegal, unenforceable or incapable of performance in any respect, the
validity, legality, enforceability or performance of the remaining
provisions hereof shall not thereby in any way be affected or impaired.
8. ENTIRE AGREEMENT
This Agreement (together with the Schedule(s) hereto) constitutes the
entire agreement and understanding between the parties hereto in connection
with the subject-matter of this Agreement and supersedes all previous
proposals, representations, warranties, agreements or undertakings relating
thereto whether oral, written or otherwise and neither party has relied on
any such proposals, representations, warranties, agreements or
undertakings.
9. TIME
9.1 Time shall be of the essence of this Agreement.
9.2 No time or indulgence given by any party to the other shall be deemed or in
any way be construed as a waiver of any of its rights and remedies
hereunder.
10. CONFIDENTIALITY
Save as may be required by law or by any regulatory authority, neither of
the parties hereto nor their ultimate shareholders shall make any
announcement or release or disclose any information concerning this
Agreement or the transactions herein referred to or disclose the identity
of the other party (save disclosure to their respective professional
advisers under a duty of confidentiality or for giving effect to the
provisions herein contained) without the written consent of the other
party, such consent not to be unreasonably withheld or delayed.
11. ASSIGNMENT
This Agreement shall be binding on and shall enure for the benefits of the
successors and assigns of the parties hereto but shall not be assigned by
any party without the prior written consent of the other party.
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12. NOTICES AND OTHER COMMUNICATIONS
All notices, requests, reports, submissions and other communications
permitted or required to be given under this Agreement shall be deemed to
have been duly given if such notice or communication shall be in writing
and delivered by personal delivery or by registered mail, facsimile
transmission or other commercial means of prepaid delivery, postage or
costs of transmission and delivery prepaid, to the parties at the following
addresses until such time as either party shall give the other party hereto
not less than ten (10) days prior written notice of a change of address in
accordance with the provisions hereof.
To Vendor : 31st Floor, Bank of America Tower, 00 Xxxxxxxx Xxxx,
Xxxxxxx, Xxxx Xxxx
Xx. Xxx Xxx Tsuen, Xxxxxxx
Fax No.: (000) 0000 0000
To Purchaser : 31st Floor, Bank of America Tower, 00 Xxxxxxxx Xxxx,
Xxxxxxx, Xxxx Xxxx
Dr. Xxx Xxxxx
Fax No.: (000) 0000 0000
13. COSTS AND EXPENSES
Each party shall pay for its own costs and expenses incidental to this
Agreement and all transactions in connection therewith, and all stamp duty
(if any) on the transfer of the Sale Shares I and Sale Shares II shall be
borne by the Vendor and the Purchaser in equal shares.
14. COUNTERPARTS
This Agreement may be entered into in any number of counterparts and by the
parties to it on separate counterparts, each of which when so executed and
delivered shall be the original, but all the counterparts shall together
constitute one and the same instrument.
15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and the parties hereto agree to submit to the
non-exclusive jurisdiction of the courts of Hong Kong.
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IN WITNESS whereof the parties hereto have executed this Agreement the day and
year first above written.
SIGNED by )
) /s/ Xx. Xxx Siu Tsuen, Xxxxxxx
duly authorized for and on behalf of ) -------------------------------
Hanny Magnetics (B.V.I.) Limited ) Authorized Signature
in the presence of : )
SIGNED by )
) /s/ Xx. Xxxxx Xxx
duly authorized for and on behalf of ) --------------------------------
China Enterprises Limited ) Authorized Signature
in the presence of :- )
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SCHEDULE 1
Part I
Particulars of Cosmos
1. Name of the Company : Cosmos Regent Limited
2. Registered Office : Tropic Isle Building, P.O. Box 438, Road
Town, Tortola, British Virgin Island
3. Date of Incorporation : 28th August 2000
I.B.C. No. : 403185
4. Directors : Xxx, Xxxxx
Xxx Xxx Tsuen, Xxxxxxx
5. Secretary : Hanny Management Limited
6. Authorised Share Capital : US$50,000.00 divided into 50,000 shares of
US$1.00 each
Issued Share Capital : US$1.00 divided into 1 share of US$1.00
7. Shareholder : Hanny Magnetics (B.V.I.) Limited holds 1 share
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Part II
Particulars of Cyber
1. Name of the Company : Cyber Generation Limited
2. Registered Office : X.X. Xxx 000, Xxxxxxxx Incorporations Centre,
Road Town, Tortola, British Virgin Islands
3. Date of Incorporation : 26th July 2000
I.B.C. No. : 395717
4. Directors : Xxx, Xxxxx
Xxx Xxx Tsuen, Xxxxxxx
5. Secretary : Hanny Management Limited
6. Authorised Share Capital : US$50,000.00 divided into 50,000 shares of
US$1.00 each
Issued Share Capital : US$1.00 divided into 1 share of US$1.00 each
7. Shareholder : Hanny Magnetics (B.V.I.) Limited holds 1 share
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Part III
Particulars of Whole Good
1. Name of the Company : Whole Good Limited
2. Registered Office : X.X. Xxx 000, Xxxxxxxx Incorporations Centre,
Road Town, Tortola, British Virgin Islands
3. Date of Incorporation : 12th May 2006
I.B.C. No. : 1027415
4. Directors : Xxx, Xxxxx
Xxx Xxx Tsuen, Xxxxxxx
5. Secretary : Hanny Management Limited
6. Authorised Share Capital : Maximum 50,000 shares with a par value of
US$1.00 each
Issued Share Capital : US$1.00 divided into 1 share of US$1.00
7. Shareholder : Hanny Magnetics (B.V.I.) Limited holds 1 share
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SCHEDULE 2
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
1. Sale Shares I comprise the entire issued share capital of Cosmos.
2. Sale Shares II comprise the entire issued share capital of Cyber.
3. Sale Shares III comprise the entire issued share capital of Whole Good.
3. The Vendor is the legal and beneficial owner of Sale Shares I, Sale Shares
II and Sale Shares III free from all liens, charges, encumbrances, claims,
equities or pre-emptive or third party rights of whatsoever nature.
4. This Agreement will, when executed by the Vendor, be a legal, valid and
binding agreement on it and enforceable in accordance with the terms
hereof.
5. The information set out in Recitals (A) to (E) and the Schedule 1 are true
and accurate in all respects.
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