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Dated 6th September 2000
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SPIN KING LIMITED
NAM TAI ELECTRONICS, INC.
and
MR. CHAMBERS TOE YEUNG WONG (ooo)
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SALE AND PURCHASE AGREEMENT
relating to 5 bearer shares in
MATE FAIR GROUP LIMITED
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SWMP/YMEL/1767803/Sale & Purchase Agreement.EXE
2
CONTENTS
AGREEMENT
Clause Heading Page
------ ------- ----
1 Definitions and Interpretation 1
2 Sale and Purchase of the Sale Shares 3
3 Completion 3
4 Warranties and Undertakings 4
5 Remedies Cumulative 7
6 No Waiver 7
7 Confidentiality 7
8 Severability 8
9 Amendments 8
10 Further Assurance 8
11 Expenses 8
12 Notices 8
13 Law and Jurisdiction 10
Schedule - Details of the Company 11
EXECUTION 12
Appendix A - Audited Accounts of the HK Co.
Appendix B - Audited Accounts of the PRC Co.
Appendix C - Management Accounts of the Company
Appendix D - Management Accounts of the HK Co.
Appendix E - Management Accounts of the PRC Co.
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THIS AGREEMENT is dated 6th September 2000 and is made
BETWEEN
(1) SPIN KING LIMITED, a company incorporated under the laws of the British
Virgin Islands with its registered office at Sea Meadow House, Blackburne
Highway, Road Town, Tortola, British Virgin Islands (the "SELLER");
(2) NAM TAI ELECTRONICS, INC., a company incorporated under the laws of the
British Virgin Islands with its registered office at 2nd Floor, 116 Main
Street, Road Town, Tortola, British Virgin Islands s (the "PURCHASER");
and
(3) MR. CHAMBERS TOE YEUNG WONG (???) (Holder of Hong Kong Identity Card No.
A322103 (5)) of Room 1006, Tower 1, China Hong Kong City, 33 Canton Road,
Tsimshatsui, Kowloon, Hong Kong ("MR. WONG").
Background
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(A) The Seller is???? the sole beneficial owner of the Sale Shares (as
defined in Clause 1.1).
(B) The Seller and the Purchaser have reached agreement on the sale by the
Seller and the purchase by the Purchaser of the Sale Shares subject to
and on the terms and conditions set out in this Agreement.
(C) Mr. Wong, being the sole beneficial owner of the Seller, has agreed to
give the warranties and undertakings as stated in this Agreement.
BY WHICH IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 Defined Terms
In this Agreement, unless the context requires otherwise or expressly
provides, the following expressions shall have the following meanings
respectively:-
"COMPANY" means Mate Fair Group Limited, details of which are set out in
the Schedule;
"COMPLETION" means completion of the sale and purchase of the Sale Shares
by the performance by the Seller and Purchaser of their respective
obligations under Clause 3.1;
"COMPLETION DATE" means the date of this Agreement or such other date as
the Seller and the Purchaser may mutually agree, being the date upon
which Completion is to take place pursuant to Clause 3.1;
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"CONSIDERATION" is defined in Clause 2.4, being the consideration to be
paid by the Purchaser to the Seller for the Sale Shares;
"HK CO." means TCL - Telital Mobile Communication (HK) Company Limited
(oooo(oo)oooo), a company incorporated under the laws of Hong Kong with
registration No. 672845;
"PRC CO." means Huizhou TCL - Telital Mobile Communication Company
Limited (ooTCLooooooo), a sino-foreign equity joint venture established
in the People's Republic of China;
"SALE SHARES" means 5 fully paid bearer shares of US$1 each in the share
capital of the Company which are beneficially owned by the Seller; and
"US$" means United States Dollars.
1.2 Construction of References
In this Agreement, unless the context requires otherwise, any reference:-
(a) to a Clause is a reference to the Clause of this Agreement;
(b) to this Agreement, any other document or any provision of this
Agreement or that document is a reference to this Agreement, that
document or that provision as in force for the time being or from
time to time amended in accordance with the terms of this
Agreement or that document;
(c) to a time of day is a reference to the time in Hong Kong, unless
expressly indicated otherwise;
(d) to an enactment includes that enactment as it may be amended,
replaced or re-enacted at any time, whether before or after the
date of this Agreement, and any subordinate legislation made under
it;
(e) to a "PERSON" includes an individual, a body corporate, a
partnership, any other unincorporated body or association of
persons and any state or state agency; and
(f) to a "RIGHT" includes a power, remedy and discretion.
1.3 Interpretation
In this Agreement, unless the context otherwise requires:-
(a) words importing the plural include the singular and vice versa;
(b) words importing a gender include every gender;
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(c) the words "OTHER", "INCLUDING" and "IN PARTICULAR" do not limit
the generality of any preceding words and are not to be construed
as being limited to the same class as the preceding words where a
wider construction is possible; and
(d) an obligation not to do something will also be treated as an
obligation not to permit it to be done.
1.4 Headings and Contents
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The headings and the tables of contents in this Agreement do not affect
its interpretation.
2. SALE AND PURCHASE OF THE SALE SHARES
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2.1 Sale and Purchase
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Subject to the terms and conditions set out in this Agreement, the Seller
as beneficial owner shall sell and the Purchaser shall purchase, the Sale
Shares free from all liens, charges, encumbrances, equities and adverse
interests and together with all rights and benefits now or hereafter
attached or accruing thereto, including the right to receive all
dividends and other distributions declared, made or paid by the Company
on or after the date hereof.
2.2 Waiver of Pre-emption Rights
----------------------------
The Seller waives and agrees to procure the waiver of any restrictions on
transfer (including pre-emption rights) which may exist in relation to
the Sale Shares under the Memorandum and Articles of Association of the
Company or otherwise.
2.3 Completion Date
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The sale and purchase of the Sale Shares referred to in Clause 2.1 shall
take place on the Completion Date in the manner described in Clause 3.
2.4 Consideration
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The consideration for the sale of the Sale Shares shall be US$2,000,000
(the "CONSIDERATION").
3. COMPLETION
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3.1 Completion Activities
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Completion shall take place at the offices of the Purchaser in Hong Kong
on the Completion Date when all (but not part only) of the following
business shall be transacted:-
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(a) the Seller shall deliver to the Purchaser the bearer share
certificates or such other documents as may be required to give
good title to the Sale Shares;
(b) the Purchaser shall deliver to the Seller a bank draft in an
amount equal to the Consideration;
(c) the Purchaser shall, and the Seller shall procure Crystal Island
Investment Limited to, enter into an agreement in such form as the
parties thereto shall agree setting out, inter alia, the
relationship between the Purchaser and Crystal Island Investment
Limited as shareholders in the Company; and
(d) the Seller shall procure a board meeting of the Company to be held
at which resolutions shall be passed to appoint Mr. Chu Chia Chin,
Charles as an additional director of the Company.
3.2 Failure to Complete
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No party shall be obliged to complete this Agreement or perform any
obligations under this Clause unless the other party complies fully with
the requirements of Clause 3.1. Any defaulting party who fails to comply
with Clause 3.1 and effect Completion shall indemnify the other
non-defaulting party from and against any losses, liabilities, costs,
claims, actions, proceedings, demands and expenses which the
non-defaulting party may incur or suffer in relation to any breach of
Clause 3.1 by the defaulting party.
3.3 Stamp Duty
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The stamp duty (if any) payable in respect of the sale and purchase of
the Sale Shares effected pursuant to this Clause shall be borne equally
between the Seller and the Purchaser.
4. WARRANTIES AND UNDERTAKINGS
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4.1 Warranties
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The Seller and Mr. Wong hereby represent, warrant and undertake to the
Purchaser that:-
(a) the Seller is the sole beneficial owner of the Sale Shares and has
full power and authority to sell and transfer the full legal and
beneficial ownership of the Sale Shares to the Purchaser pursuant
to this Agreement;
(b) there is no option, right to acquire, mortgage, charge, pledge,
lien or other form of security or encumbrance on, over or
affecting any of the Sale Shares;
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(c) there is no consent, licence, permission, authority or similar
approval from any governmental or other official body in the
British Virgin Islands, the People's Republic of China or Hong
Kong necessary for the entering into and implementation of this
Agreement;
(d) the Seller shall following Completion have no further claims or
rights against or in respect of the Company in relation to the
Sale Shares;
(e) the Company is the beneficial shareholder of 20% in the HK Co. and
the beneficial owner of 20% of the registered capital in the PRC
Co.;
(f) the audited accounts of the HK Co. for the period from its date of
incorporation to 31st December 1999 attached hereto as Appendix
A:-
(i) were prepared in accordance with accounting practices and
standards generally accepted in Hong Kong at the time they
were prepared and commonly adopted by companies carrying on
business similar to that carried on by the HK Co.;
(ii) were prepared in compliance with all applicable
legislation; and
(iii) give a true and fair view of the HK Co.'s state of affairs
and of its assets and liabilities as at 31st December 1999
and of its trading results for the financial period then
ended and they have not been affected by any unusual,
extraordinary, exceptional or non-recurring items;
(g) the audited accounts of the PRC Co. for the period from its date
of incorporation to 31st December 1999 attached hereto as Appendix
B:-
(i) were prepared in accordance with accounting practices and
standards generally accepted in the People's Republic of
China at the time they were prepared and commonly adopted
by companies carrying on business similar to that carried
on by the PRC Co.;
(ii) were prepared in compliance with all applicable
legislation; and
(iii) give a true and fair view of the PRC Co.'s state of affairs
and of its assets and liabilities as at 31st December 1999
and of its trading results for the financial period then
ended and they have not been affected by any unusual,
extraordinary, exceptional or non-recurring items;
(h) the management accounts of the Company for the period from its
date of incorporation to 9th August 2000 attached hereto as
Appendix C:-
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(i) were prepared in accordance with accounting practices and
standards generally accepted in Hong Kong at the time they
were prepared and commonly adopted by companies carrying on
business similar to that carried on by the Company;
(ii) were prepared in compliance with all applicable
legislation; and
(iii) give a true and fair view of the Company's state of affairs
as at 9th August 2000 and they have not been affected by
any unusual, extraordinary, exceptional or non-recurring
items;
(i) the management accounts of the HK Co. for the month of July 2000
attached hereto as Appendix D:-
(i) were prepared in accordance with accounting practices and
standards generally accepted in Hong Kong at the time they
were prepared and commonly adopted by companies carrying on
business similar to that carried on by the HK Co.;
(ii) were prepared in compliance with all applicable
legislation; and
(iii) give a true and fair view of the HK Co.'s state of affairs
and of its assets and liabilities as at 31st July 2000 and
of its trading results for the financial period then ended
and they have not been affected by any unusual,
extraordinary, exceptional or non-recurring items; and
(j) the management accounts of the PRC Co. for the month of July 2000
attached hereto as Appendix E:-
(i) were prepared in accordance with accounting practices and
standards generally accepted in the People's Republic of
China at the time they were prepared and commonly adopted
by companies carrying on business similar to that carried
on by the PRC Co.;
(ii) were prepared in compliance with all applicable
legislation; and
(iii) give a true and fair view of the PRC Co.'s state of affairs
and of its assets and liabilities as at 31st July 2000 and
of its trading results for the financial period then ended
and they have not been affected by any unusual,
extraordinary, exceptional or non-recurring items.
4.2 Repetition
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The warranties contained in Clause 4.1 shall be deemed to be repeated on
the Completion Date.
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4.3 Notification
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Each of the Seller and Mr. Wong shall promptly notify the Purchaser upon
the Seller or Mr. Wong (as the case may be) becoming aware of any event
which could reasonably be expected to cause any of the warranties
contained in Clause 4.1 to be incorrect, misleading or breached in any
respect.
4.4 Joint and Several
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The liabilities and obligations of the Seller and Mr. Wong under this
Clause 4 shall be joint and several.
5. REMEDIES CUMULATIVE
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The rights of the parties under this Agreement are cumulative and do not
exclude or restrict any other rights.
6. NO WAIVER
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No failure or delay by a party to exercise any right under this Agreement
or otherwise will operate as a waiver of that right or any other right
nor will any single or partial exercise of any such right preclude any
other or further exercise of that right or the exercise of any other
right.
7. CONFIDENTIALITY
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No party shall disclose (and shall ensure that none of its directors,
officers, employees or agents discloses) any confidential information
belonging to any of the other parties except where:-
(a) disclosure is necessary for the performance of that party's
obligations under this Agreement in which case the other party
will be informed of such disclosure and that party shall procure
that such disclosure is limited to the extent of such necessity;
or
(b) the information has entered into the public domain but not because
of a breach or default by that party; or
(c) disclosure is to that party's legal advisers or accountants or
their respective legal advisers and such party has advised the
recipient of the restrictions on disclosure contained in this
Clause and will be responsible for any breach of the provisions of
this Clause by the recipient; or
(d) disclosure is required by law or any governmental body.
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8. SEVERABILITY
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If any provision of this Agreement is not or ceases to be legal, valid,
binding and enforceable under the law of any jurisdiction, neither the
legality, validity, binding effect or enforceability of the remaining
provisions under that law nor the legality, validity, binding effect or
enforceability of that provision under the law of any other jurisdiction
shall be affected.
9. AMENDMENTS
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No amendment to this Agreement will be effective unless in writing and
executed by or on behalf of each of the parties.
10. FURTHER ASSURANCE
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Each party shall do and shall use reasonable endeavours to procure any
other person to do whatever is necessary to give effect to this
Agreement.
11. EXPENSES
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Each of the parties is responsible for that party's own legal and other
expenses incurred in the negotiation, preparation and completion of this
Agreement.
12. NOTICES
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12.1 In Writing and Methods of Delivery
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Every notice or communication under this Agreement must be in writing and
may, without prejudice to any other form of delivery, be delivered
personally or sent by post or transmitted by fax.
12.2 Authorised Addresses and Numbers
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(a) In the case of posting, the envelope containing the notice or
communication must be addressed to the intended recipient at the
authorised address of that party and must be properly stamped or
have the proper postage prepaid for delivery by the most
expeditious service available (which will be airmail if that
service is available) and, in the case of a fax, the transmission
must be sent to the intended recipient at the authorised number of
that party.
(b) Subject to Clause 12.3, the authorised address and fax number of
each party, for the purpose of Clause 12, are as follows:-
Spin King Limited
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Address : Room 2402, 24th Floor, Sing Pao Building, 101 King's
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Road, Fortress Hill, Hong Kong
Fax : 2838 4966
Attention : ACCA Secretarial Limited
Nam Tai Electronics, Inc.
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Address : Unit 4, 9th Floor, Tower 1, China Hong Kong City,
33 Canton Road, Tsim Sha Tsui, Kowloon, Hong Kong
Fax : 2263 1222
Attention : Mr. Koo Ming Kown
Mr. Chambers Toe Yeung Wong
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Address : Room 1006, Tower 1, China Hong Kong City,
33 Canton Road, Tsim Sha Tsui, Kowloon, Hong Kong
Fax : 2302 0996
12.3 Notification of Changes
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No change in any of the particulars set out in Clause 12.2(b) will be
effective against a party until it has been notified to that party.
12.4 Deemed Giving of Notice and Receipt
-----------------------------------
A notice or communication will be deemed to have been duly given and
received:-
(a) on personal delivery to any director or the company secretary of
an addressee or on a business day to a place for the receipt of
letters at that addressee's authorised address;
(b) in the case of posting, where the addressee's authorised address
is in the same country as the country of posting, at 10 a.m.
(local time at the place where the address is located) on the
second business day after the day of posting;
(c) in the case of posting, where the addressee's authorised address
is not in the same country as the country of posting, at 10 a.m.
(local time at the place where that address is located) on the
fifth business day after the day of posting;
(d) in the case of a fax, on issue to the sender of an O.K. result
confirmation report or, if the day of issue is not a business day,
at 10 a.m. (local time where the authorised fax number of the
intended recipient is located) on the next business day.
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12.5 Business Days
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For the purpose of Clause 12.4, a "BUSINESS DAY" means a day which is not
a Saturday or a Sunday or a public holiday in the country of posting or
transmission or in the country where the authorised address or fax number
of the intended recipient is located and, where a notice is posted, which
is not a day when there is a disruption of postal services in either
country which prevents collection or delivery.
13. LAW AND JURISDICTION
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13.1 Governing Law
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This Agreement is governed by and will be construed in accordance with
Hong Kong law.
13.2 Hong Kong Jurisdiction
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The parties submit to the non-exclusive jurisdiction of the Hong Kong
courts and each party waives any objection to proceedings in Hong Kong on
the grounds of venue or inconvenient forum.
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Schedule
Details of the Company
Name : Mate Fair Group Limited (......)
Registration No : I.B.C. No. 370066
Place of Incorporation : British Virgin Islands
Date of Incorporation : 18th February 2000
Registered Office : Sea Meadow House, Blackburne Highway, Road Town,
Tortola, British Virgin Islands
Correspondence Address : Room 2402, 24th Floor, Sing Pao Building,
101 King's Road, Fortress Hill, Hong Kong
Authorised Share Capital : USS$50,000 divided into 50,000 shares of US$1 each
Issued Share Capital : US$20 comprising of 20 bearer shares of US$1 each
Shareholders : Name of shareholder No. of shares
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Crystal Island Investment 9
Limited
ePan Asset Inc. 6
Spin King Limited 5
--
Total: 20
==
Director : ACCA Secretarial Limited
Registered Agent : CCS Management Limited
Sea Meadow House, Blackburne Highway, Road Town,
Tortola, British Virgin Islands
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EXECUTED by the parties
For and on behalf of )
SPIN KING LIMITED )
By Alice Lau ) /s/ Alice Lau
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Witnessed by:-
David Ellis
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For and on behalf of )
NAM TAI ELECTRONICS, INC. )
By Tadao Murakamia ) /s/ Tadao Murakami
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Witnessed by:-
David Ellis
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SIGNED, SEALED and DELIVERED )
by MR. CHAMBERS TOE YEUNG )
WONG (...) ) /s/ Chambers Wong
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Witnessed by:-
David Ellis
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