EXHIBIT 2.1
DATED THIS 20TH DAY OF DECEMBER 2005
------------------------------------
BETWEEN
M2B WORLD PTE LTD
(AS THE VENDOR)
AND
AUSTON INTERNATIONAL GROUP LIMITED
(AS THE PURCHASER)
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SALE AND PURCHASE AGREEMENT
RELATING TO 81 PER CENT OF THE ENTIRE ISSUED SHARE CAPITAL OF
M2B GAME WORLD PTE LTD
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[STAMFORD LAW CORPORATION LOGO]
(incorporated with limited liability)
9 Raffles Place #32-00
Republic Plaza Singapore 048619
Main: (65) 6389-3000
Fax: (65) 6389-3099
WEBSITE: WWW.STAMFORDLAW.COM.SG
TABLE OF CONTENTS
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CLAUSE NO HEADING PAGE
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1. Interpretation ..................................................1
2. Sale and Purchase of Shares .....................................3
3. Transfer of Sale Shares .........................................4
4. Consideration ...................................................4
5. Issue of Consideration Shares ...................................5
6. Covenants and Undertakings ......................................7
7. Vendor's Warranties .............................................8
8. Guaranteed Profit ...............................................9
9. Indemnification by Vendor .......................................10
10. Confidentiality .................................................10
11. Restriction on Announcements ....................................10
12. Costs and Stamp Duty ............................................I1
13. General .........................................................11
14. Notices .........................................................12
15. Remedies and Waivers ............................................12
16. Time of Essence .................................................12
17. Third Party Rights ..............................................13
18. Counterparts ....................................................13
19. Governing Law and Submission to Jurisdiction ....................13
Appendix A -- Share Transfer Form ............................................15
Appendix B - Letter of Resignation ...........................................16
THIS AGREEMENT is made on the 20th day of December 2005
BETWEEN
(1) M2B WORLD PTE LTD (Company Registration No. 20003654C), a company
incorporated in Singapore and having its registered office at 112
Middle Road #08-01, Midland House, Singapore 188970 (the "VENDOR"); and
(2) AUSTON INTERNATIONAL GROUP LEVIITED (Company Registration No.
199801660M), a company incorporated in Singapore and having its
registered office at 45 Middle Road #05-00 Auston Unicentre, Singapore
188954 (the "PURCHASER" or "AIG").
WHEREAS:
(A) M2B GAME WORLD PTE LTD (Certificate of Incorporation No. 200501084W), a
company incorporated in Singapore and having its registered office at
Registered Office: 112 Middle Road #08-01, Midland House, Singapore
188970 (the "COMPANY").
(B) The Company has at the date of this Agreement an authorised and issued
share capital of S$1,000,000 divided into 10,000,000 ordinary shares of
S$0.10 each.
(C) The Vendor is at the date of this Agreement the legal and beneficial
owner of all of the Sale Shares (as hereinafter defined).
(D) The Vendor has offered to sell to the Purchaser and the Purchaser has
agreed to purchase from the Vendor the Sale Shares (as hereinafter
defined) on the terms and subject to the conditions contained in this
Agreement.
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
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1.1 In this Agreement and the Schedules unless the context otherwise
requires, the following words and expressions shall have the following
meanings:
"AIG SHARES" means the ordinary shares in the issued and paid up
capital of AIG at the date hereof;
"BUSINESS DAY'" means a day (other than a Saturday or Sunday or a
gazetted public holiday) in Singapore;
"COMPANIES ACT" means the Companies Act, Chapter 50 of Singapore;
"CONFIDENTIAL INFORMATION" means this Agreement and all oral, written
and other confidential and proprietary information owned or furnished
by or on behalf of the Vendor without limitation, financial, technical
and business information, data, know-how, market reports, technological
designs, computer programmes and related documentation;
"CONSIDERATION" means the consideration for the Sale Shares as
specified in Clause 3;
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"CONSIDERATION SHARES" means the 71,428,571 AIG Shares to be issued by
the Purchaser in satisfaction of the Consideration;
"DAMAGES" means any and all losses, claims, causes of action, damages,
and liabilities of any kind or nature whatsoever, including but not
limited to, shortages, obligations, liabilities, payments, judgements,
suits, litigation, proceedings, equitable relief granted, consents,
agreed orders, settlements, awards, demands, offsets, defences,
counterclaims, actions or proceedings, assessments, deficiencies,
fines, penalties, assessments, costs, fees, disbursements, including
without limitation, fees, disbursements and expenses of attorneys
(including fees, disbursements and expenses of attorneys incurred in
connection with the cost of defence of any claims or causes of action
on a solicitor-client basis), accountants and other professional
advisors and of expert witnesses and costs of investigation and
preparation and costs of court of any kind or nature whatsoever,
interest and penalties. Damages shall not include diminution in value,
indirect, consequential, special or punitive damages, loss of profits
or loss of reputational goodwill;
"ENCUMBRANCE" means any mortgage, assignment of receivables, debenture,
lien, charge, pledge, security interest, title retention, right to
acquire, options, restriction on transfer and any other encumbrance or
condition whatsoever;
"FY" means, in relation to any given year, the financial year ended, or
as the case may be, ending 31 December;
"GROUP" means the Company and its subsidiaries and "GROUP COMPANY"
means any of them;
"INTELLECTUAL PROPERTY RIGHT" means any any patents, trademarks,
service marks or names whether or not registered or capable of
registration including registered designs, design rights, copyrights,
database rights, the right to apply for and applications for any of the
preceding items, together with the rights in inventions, processes,
software, know-how, trade or business secrets, confidential information
or any other similar right or asset capable of protection enjoyed,
owned, used or licensed by any Group Company wherever in the world
enforceable;
"LISTING MANUAL" means the Listing Manual of the SGX-ST as may be
amended from time to time;
"MARKET DAY(S)" means a day or days on which SGX-ST is open for
securities trading;
"PURCHASER'S DUE DILIGENCE EXERCISE" means the legal and commercial due
diligence conducted by the Purchaser in respect of the accounts,
assets, agreements, personnel and businesses relating to the Group as
the Purchaser may reasonably require;
"PURCHASER'S SOLICITORS" means Stamford Law Corporation (Company
Registration No. 200010215M), of 9 Raffles Place, #32-00 Republic
Plaza, Singapore 048619;
"SALE SHARES" means the 8,100,000 shares of S$0.10 each in the capital
of the Company representing 81 per cent of the existing issued share
capital of the Company;
"SETTLEMENT" means the payment of the Consideration as specified in
Clause 5;
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"SETTLEMENT DATE" means the date on which Settlement takes place
pursuant to Clause 5;
"SGX-ST" means Singapore Exchange Securities and Trading Limited;
"SINGAPORE DOLLAR" or "S$" means the lawful currency of the Republic of
Singapore;
"USS" means the lawful currency of the United States of America; and
"WARRANTIES" means the representations, warranties, indemnities and
undertakings of the Vendors contained or referred to in Clause 7.
1.2 Reference to statutory provisions shall be construed as references to
those provisions as respectively amended or re-enacted or as their
application is modified by other provisions (whether before or after
the date hereof) from time to time and shall include any provisions of
which they are re-enactments (whether with or without modification).
1.3 References herein to Clauses, Schedules and Appendices are to Clauses
in and schedules and appendices to this Agreement. The Schedules and
Appendices form part of this Agreement and have the same force and
effect as if expressly set out in the body of this Agreement.
1.4 References herein to "subsidiaries" shall mean subsidiaries as defined
in the Companies Act.
1.5 The headings are inserted for convenience only and shall not affect the
construction of this Agreement.
1.6 Words importing the singular shall include the plural and VICE VERSA,
words importing a specific gender shall include the other genders
(male, female or neuter); and "PERSON" shall include an individual,
corporation, company, partnership, firm, trustee, trust, executor,
administrator or other legal personal representative, unincorporated
association, joint venture, syndicate or other business enterprise, any
governmental, administrative or regulatory authority or agency
(notwithstanding that "person" may be sometimes used in this Agreement
in conjunction with some of such words), and their respective
successors, legal personal representatives and assigns, as the case may
be, and pronouns shall have a similarly extended meaning.
1.7 Any information, fact or matter which is capable of influencing the
decision of a purchaser of shares or which is necessary for a purchaser
to know to enable it to come to a considered judgment is to be regarded
as material and unless otherwise provided the materiality of any
inaccuracy, discrepancy, commission or omission, alteration and
liability in respect of any relevant subject matter will be construed
accordingly.
2. SALE AND PURCHASE OF SHARES
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Subject to the terms and conditions of this Agreement, the Vendor
agrees to sell as legal and beneficial owner and transfer to the
Purchaser, and the Purchaser agrees to purchase from the Vendor, all of
the Vendor's rights, title and interest in and to the Sale Shares free
and clear of all Encumbrances, together with all rights, dividends,
entitlements and benefits
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3. TRANSFER OF SALE SHARES
-----------------------
3.1 The Vendor undertakes that it shall within 5 Business Days from the
date of this Agreement
deliver to the Purchaser:-
3.1.1 certified true copies of the resolutions passed by the board
of directors of the Vendor approving the sale of the Sale
Shares by the Vendor to the Purchaser pursuant to this
Agreement;
3.1.2 certified true copies of the resolutions passed by the board
of directors of the Company:-
(a) approving the transfer of the Sale Shares to the
Purchaser;
(b) authorising the cancellation of old share
certificates and the issue of new share certificates
in respect of the Sale Shares in favour of the
Purchaser and/or its nominees;
(c) approving the entry of the name of the Purchaser or
its nominees as holder of the Sale Shares in the
register of members of the Company; and
(d) approving the appointment of three persons nominated
by the Purchaser as directors of the Company,
in such forms as the Purchaser may require;
3.1.3 duly executed share transfer FORMS, in substantially the form
set out in Appendix A, in respect of the Sale Shares in favour
of the Purchaser or its nominees, together with the relevant
share certificate(s);
3.1.4 (if so required by the Commissioner of Stamp Duties in
Singapore), the duly executed working sheet computing the net
asset value per share of the Company, together with such other
documents and instruments as the Commissioner of Stamp Duties
in Singapore may require for the stamping of the share
transfer forms in respect of the Sale Shares;
3.1.5 such waivers or consents as may be necessary to enable the
Purchaser or its nominees to be registered as holder of any
and all of the Sale Shares; and
3.1.6 such other documents, in form and substance satisfactory to
the Purchaser, as the Purchaser may require, to complete the
sale and purchase of the Sale Shares and to complete the
transactions contemplated herein.
4. CONSIDERATION
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4.1 The Consideration shall be Singapore Dollars Five Million
(S$5,000,000.00), to be satisfied by the issuance of 71,428,571 AIG
Shares by the Purchaser to the Vendor at the issue price of S$0.07 per
AIG Share, credited as fully paid-up upon issue.
4.2 The Consideration Shares shall when issued, rank PARI PASSU with all
other AIG Shares that are in issue and credited as fully paid-up and
carry the same entitlement to dividends, distributions, or other rights
that shall accrue to the existing AIG Shares, other than those the
record date for which is on a date falling before the Settlement Date.
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5. ISSUE OF CONSIDERATION SHARES
-----------------------------
5.1 The obligations of the Purchaser to effect Settlement and to issue the
Consideration Shares under this Agreement shall be conditional upon the
following:
5.1.1 completion of the Purchaser's Due Diligence Exercise and the
result of the Purchaser's Due Diligence Exercise, in the
absolute opinion of the Purchaser being satisfactory and
acceptable to the Purchaser in all material respects;
5.1.2 completion of a placement by the Purchaser of not less than
40,000,000 new AIG Shares at the price of S$0.04 per AIG Share
to third parties;
5.1.3 the approval of the shareholders of the Purchaser being
obtained at an extraordinary general meeting of such
shareholders:
(a) for the acquisition of the Sale Shares; and
(b) for the issuance of the Consideration Shares.
5.1.4 the in-principle approval of the SGX-ST for the listing and
quotation of the Consideration Shares;
5.1.5 each of the Warranties remaining true and not misleading in
any respect at Settlement, as if repeated at the Settlement
Date and at all tunes between the date of this Agreement and
the Settlement Date;
5.1.6 the Vendor having performed all of the covenants and
undertakings required to be performed by it under this
Agreement;
5.1.7 all other necessary consents, if any, being granted and not
withdrawn or revoked by third parties (including without
limitation, government bodies, stock exchange and other
relevant authorities having jurisdiction over the transactions
contemplated under this Agreement) and if such consents are
obtained subject to any conditions and where such conditions
affect any of the parties, such conditions being acceptable to
the party concerned and, if such conditions are required to be
fulfilled before Settlement, such conditions being fulfilled
before Settlement.
5.2 the Purchaser may waive all or any of such conditions in Clause 5.1 at
any time by notice in writing to the Vendor.
5.3 Where any approval granted by the SGX-ST for the listing and quotation
of the Consideration Shares is subject to any conditions, the Vendor
agrees to comply with such conditions as may be applicable to it.
5.4 Subject to the provisions of Clause 7.8. Settlement shall take place on
the date falling two (2) Business Days after all the conditions set out
in Clause 5.1 are fulfilled (or if not fulfilled, are waived by the
Purchaser) at the offices of the Purchaser's Solicitors (or at such
other place as the parties may agree in writing), whereupon the
Purchaser shall:
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5.4.1 deliver or caused to be delivered to the Central Depository
(Pte) Limited a share certificate for such number of
Consideration Shares to be issued in respect of the
Consideration;
5.4.2 deliver or cause to be delivered to the Central Depository
(Ptc) Limited an instruction to credit such securities account
as the Vendor shall inform the Purchaser prior to Settlement
with the Consideration Shares to be issued in respect of the
Consideration; and
5.4.3 deliver certified true copies of the resolutions passed by the
board of directors of the Purchaser approving the appointment
of two persons nominated by the Vendor as directors of the
Purchaser.
5.3 Notwithstanding Clause 5.1, if in any respect any of the provisions of
Clause 5 are not complied with by the Vendor on the Settlement Date,
the Purchaser may at its sole discretion:
5.3.1 defer Settlement to a date not more than 30 days after the
Settlement Date (and the provisions of this Clause 5 shall
apply to Settlement as so deferred); or
5.3.2 proceed with Settlement so far as practicable (without
prejudice to its rights to claim Damages for the Vendor's
failure to comply with any of the conditions in this Clause 5
or any of its rights under this Agreement); or
5.3.3 rescind this Agreement without prejudice to any other remedy
it may have.
5.5 If the conditions set out in Clause 5.1 shall not have been fulfilled
within 90 days from the date of this Agreement (or waived by the
Purchaser in accordance with Clause 4.2), then unless extended by
mutual agreement between the parties hereto:
5.5.1 the Purchaser shall return the Sale Shares to the Vendor by
delivering to the Purchaser:
(a) the duty executed share transfer forms substantially
in the form set out in Appendix A in respect of the
Sale Shares in favour of the Vendor or its nominees,
together with the relevant share certificate(s);
(b) the letters of resignation substantially in the form
set out in Appendix B executed by the persons
nominated by the Purchaser to the board of directors
of the Company; and
5.5.2 the provisions of this Agreement shall (other than this
Clause, Clause 7 (Vendor's Warranties), Clause 10
(Confidentiality), Clause 11 (Restriction on Announcements),
Clause 12 (Costs and Stamp Duty), Clause 14 (Notices) and
Clause 19 (Governing Law and Submission to Jurisdiction)) from
such date IPSO FACTO cease and determine and none of the
parties shall have any claim against the damages, compensation
or otherwise save in respect of any antecedent breach of this
Agreement.
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6. COVENANTS AND UNDERTAKINGS
--------------------------
6.1 The Vendor undertakes that from the date of this Agreement it shall
(except where otherwise agreed in writing by the Purchaser) ensure
that it shall not sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend or otherwise transfer or
dispose of, directly or indirectly, any of its shares in the Company
(or any securities convertible into or exercisable or exchangeable for
or that represent the right to receive, subscribe for or purchase the
Shares of the Company).
6.2 The Vendor undertakes with the Purchaser that except with the consent
in writing of the Purchaser or as otherwise expressly provided for in
this Agreement that the Vendor:
6.2.1 will not for a period of three years after the date of this
Agreement, solicit in competition with any Group Company, the
custom of any person, firm or company who is at the
Settlement Date or who, was at any time in the two years
immediately preceding the Settlement Date a customer of that
Group Company; or
6.2.2 will not for a period of three years after the date of this
Agreement, induce any directors or employees of any Group
Company to terminate such person's directorship or to leave
the employment of the Group Company or employ such director
or employee.
The parties agree that all obligations or restrictions in this Clause
6.3 are necessary and fundamental to the protection of the Purchaser
and each Group Company, and are reasonable and valid.
6.3 In the event that any obligation should be held to be invalid as an
unreasonable restraint of trade or for any other reason whatsoever but
would have been held valid if part of the wording thereof is reduced
or the range of activities or the duration of such obligation of area
dealt with thereby is reduced in scope, such obligations shall apply
with such modifications as may be necessary to make them valid and
effective.
6.4 The Vendor agrees that it shall (i) enter into a management agreement
for a period of three years with the Purchaser and the Company (the
"MANAGEMENT AGREEMENT") whereby the Vendor shall provide management,
technical, marketing and accounting services and support (and/or such
other services as to be agreed upon between the parties) for the
Company; (ii) procure all necessary financing required of the Company
for the duration and currency of the Management Agreement (the
"MANAGEMENT SERVICES"), which financing shall be made by way of loan,
debenture, mortgage or in such other manner from financial institutions
or other third party sources ("EXTERNAL FINANCING"). For the avoidance
of doubt, it is the understanding of the Parties that the Parties shall
not be obliged to provide any guarantee, undertaking, indemnity or
other security for any External Financing; and (iii) in consideration
of the Management Services to be provided by the Vender under the
Management Agreement, the Vendor shall be entitled to 30 per cent of
the consolidated profit before tax of the Company throughout the
duration of the Mangement Agreement.
6.5 The Purchaser agrees that the Vendor shall at Settlement have the right
to appoint two persons as it may nominate to the board of directors of
the Purchaser.
6.6 Each and every obligation under this Clause shall be treated as a
separate and distinctive obligation and shall be severally enforceable
as such and in the event of any obligation or obligations being or
7
becoming unenforceable shall be deleted from this Clause and any such
deletion shall not affect the enforceability of all such parts of this
Clause as remain not so deleted.
7. VENDOR'S WARRANTIES
-------------------
7.1 The Vendor hereby represents, warrants and undertakes to and with the
Purchaser (with the intent that the provisions of this Clause shall
continue to have full force and effect notwithstanding Settlement)
that:
7.1.1 the Vendor has full power and authority to enter into and
perform this Agreement and this Agreement constitutes valid
and binding obligations on the Vendor;
7.1.2 it is the legal and beneficial owner of the Shares of the
Company and is entitled to sell and transfer the Shares to the
Purchaser, free from all and any Encumbrances together with
all rights, dividends, entitlements and benefits attaching
thereto and no other person has any rights of pre-emption over
such Shares;
7.1.3 the Shares of the Company are validly allotted, issued and
fully paid up;
7.1.4 the execution and delivery of, and the performance by Vendor
of its obligations under this Agreement will not:
(a) result in a breach of any provision of the memorandum
or articles of association of the Vendor or of any
agreement or arrangement to which is the Vendor is a
parry or by which it is bound; and/or
(b) result in a breach of any order, judgement or decree
of or undertaking to any court, government body,
statutory authority or regulatory body (including,
without limitation, any relevant stock exchange or
securities council) to which the Vendor is a party or
by which it is bound.
7.2 The Vendor further warrants and undertakes to and with the Purchaser
that:
7.2.1 each of the Warranties is true and accurate in all respects
and not misleading at the date of this Agreement and will
continue to be true and accurate in all respects and not
misleading down to and including Settlement; and
7.2.2 in relation to any Warranty which refers to the knowledge,
information or belief of the Vendor, that the Vendor has made
reasonable enquiry into the subject matter of that Warranty.
7.3 The warranties given hereunder or pursuant hereto shall not in any
respect be extinguished or affected by Settlement and the benefits
thereof may be assigned in whole or in part by the Purchaser to any
third party at the Purchaser's sole discretion without the Vendor's
consent.
7.4 The Vendor acknowledges that the Purchaser has entered into this
Agreement in reliance upon and on the basis of each of the Warranties.
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7.5 The Warranties shall be separate and independent and save as expressly
provided shall not be limited by reference to any other Clause or
anything in this Agreement, the Schedules or the Appendices.
7.6 If prior to Settlement, the Vendor shall become aware of any event
which results or may result in any of the Warranties being unfulfilled,
untrue, incorrect or misleading on Settlement, the Vendor shall
immediately notify the Purchaser in writing thereof prior to the
Settlement (as the case may be) and it shall make any investigation
concerning the event which the Purchaser, without prejudice to any of
its rights under this Agreement, may reasonably require.
7.7 The Vendor shall procure that (save only as may be necessary to give
effect to this Agreement) neither the Vendor nor the Group shall do,
allow or procure any act or omission before Settlement which would
constitute a breach of any of the Warranties if they were given at
Settlement or which would make any of the Warranties unfulfilled,
untrue, inaccurate or misleading in any respect if they were so given.
7.8 In the event of it becoming apparent on or before Settlement that the
Vendor is or may be in breach of any of the Warranties or any other
term of this Agreement, the Purchaser shall be entitled to rescind this
Agreement by notice in writing to the Vendor. Upon rescission of this
Agreement under this Clause 7.8, the Purchaser shall, in addition to
its rights to damages, be entitled to be paid legal, accounting and
other costs and expenses incurred by the Purchaser in connection with
this Agreement.
7.9 The Vendor shall use its best endeavours to give to the Purchaser and
its solicitors, financiers, consultants, advisers and accountants up to
Settlement all such information and documentation relating to the Group
in its possession or control as the Purchaser shall require to enable
it to be satisfied as to the accuracy and due observance of the
Warranties.
8. GUARANTEED PROFIT
-----------------
8.1 The Vendor warrants that for FY2006 (or such other accounting period as
may be agreed between the parties), the audited consolidated profit
after tax of the Company for such period attributable to the Purchaser
by virtue of its shareholding in the Company shall not be less than
Singapore Dollars Five Hundred Thousand (S$500,000.00) (the "GUARANTEED
Profit").
8.2 In the event the audited consolidated profit after tax of the Company
for the said financial year is less than the Guaranteed Profit:
8.2.1 the Vendor shall indemnify the Purchaser and shall upon
written demand by the Purchaser make, an ex-gratia payment
to and at the election of the Purchaser, a sum equivalent to
either (a) the difference between the Guaranteed Profit and
the Company's actual audited consolidated net profit in
cash, or (b) (if the Company makes a loss and not a profit)
the sum of the quantum of the loss and the Guaranteed
Profit, pro-rated according to the Purchaser's interest in
the issued Share capital of the Company; and
8.2.2 the warranty set out in Clause 8.1 shall be repeated in
respect of the next succeeding financial year, and this
Clause 8.2 shall MUTATIS MUTANDIS apply in the event the
audited consolidated profit after tax of the Company for
that next succeeding financial year is less than the
Guaranteed Profit.
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9. INDEMNIFICATION BY VENDOR
-------------------------
9.1 The Vendor shall defend, indemnify and hold harmless the Purchaser and
their respective directors, officers, employees, agents, successors and
assigns (collectively, in such capacity as the parties to be
indemnified under this Agreement, the "INDEMNIFIED PARTIES"), from and
against and in respect of any and all Damages suffered or incurred by
any Indemnified Party in connection with:
9.1.1 any breach of any Warranty in this Agreement; and
9.1.2 any failure to perform duly and punctually any covenant,
agreement or undertaking on the part of the Vendor for the
benefit of the Purchaser or the Company under this Agreement.
10. CONFIDENTIALITY
---------------
10.1 Each of the parties agrees to keep strictly secret and confidential,
and under no circumstances to disclose to any person or entity which is
not a party to this Agreement, any Confidential Information arising
from or in connection with this Agreement unless disclosure of such
information is expressly permitted by the prior written consent in
writing of the other party (such consent not to be unreasonably
withheld).
10.2 Notwithstanding Clause 10. 1, the confidentiality obligation shall not
apply to:
10.2.1 any information obtained from any parry hereto which becomes
generally known to the public, other than by reason of any
wilful or negligent act or omission of any party hereto or any
of their agents, advisers or employees;
10.2.2 any information obtained from any third party;
10.2.3 any information that may be required to be disclosed pursuant
to any competent governmental or statutory authority or
pursuant to rules or regulations of any relevant regulatory
body (including, without limitation, any relevant stock
exchange or securities council);
10.2.4 any information which is required to be disclosed pursuant to
any legal process issued by any court or tribunal in
Singapore, the United States or elsewhere;
10.2.5 any information disclosed by any of the parties to their
respective bankers, financial advisers, consultants and legal
or other advisers for the purpose of this Agreement and the
transactions contemplated; and
10.2.6 any information which is reasonably required to be disclosed
to persons who are subject to duties of secrecy and confidence
under the Banking Act, Chapter 19 of Singapore, the Finance
Companies Act, Chapter 108 of Singapore or such other
similar legislation as may be applicable to the Purchaser.
11. RESTRICTION ON ANNOUNCEMENTS
----------------------------
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Save as may be required to be disclosed pursuant to any applicable
requirement issued by any competent governmental OR statutory authority
or rules or regulations of any relevant regulatory body (including,
without limitation, any relevant stock exchange or securities council),
each party undertakes that prior to Settlement it will not make any
announcement in connection with this Agreement unless the other party
shall have given its consent to such announcement (which consent not to
be unreasonably withheld).
12. COSTS AND STAMP DUTY
--------------------
12.1 Subject to Clauses 4.3, 7.9 and 12.2, each party to this Agreement
shall pay its own costs and expenses incurred in relation to or in
connection with the negotiation, preparation and execution of this
Agreement and the sale and purchase hereby agreed to be made, provided
that if any party shall lawfully exercise any right hereby conferred to
rescind this Agreement before Settlement the other party shall
indemnify the first-mentioned party against expenses and costs
(including legal, accounting and other costs and expenses) incurred in
the preparation of this Agreement.
12.2 The Purchaser shall bear all stamp duties payable in connection with
the transfer of the Sale Shares from the Vendor to the Purchaser.
12.3 Each payment in respect of costs, expenses or Taxation shall be made in
the currency in which the costs, expenses or Taxes are incurred.
13. GENERAL
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13.1 This Agreement shall be binding upon and inure for the benefit of the
successors, personal representatives and estates of the parties. Except
as otherwise expressly provided in this Agreement, no rights and
obligations in this Agreement shall be assigned to any other person by
any party without the prior written consent of the other party.
13.2 This Agreement (together with the Schedules and Appendices attached
hereto), constitutes the full understanding of the parties and the
complete and exclusive statement of the terms and conditions of the
Agreement relating to the subject matter of this Agreement and
supersedes any and all PRIOR agreements, whether written or oral, that
may exist between the parties with respect thereto.
13.3 Any amendment of or supplement to this Agreement, including this
provision and the Schedules and Appendices, must be in writing (or in
any other form required by applicable law) and executed by both parties
to be effective.
13.4 The provisions of this Agreement including the Warranties, covenants
and undertakings (insofar as the same shall not have been fully
performed at Settlement) shall remain in full force and effect
notwithstanding Settlement. Settlement shall not prejudice any rights
of any of the parties which may have accrued hereunder prior to
Settlement.
13.5 The Vendor and the Purchaser shall do and execute or procure to be done
and executed all such further acts, deeds, things and documents as the
other party may reasonably require to fulfil the provisions of and to
give to each party the full benefit of this Agreement.
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13.6 Except to the extent already performed, all the provisions of this
Agreement shall, so far as they are capable of being performed or
observed, continue in full force and effect notwithstanding Settlement.
13.7 The illegality, invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its
legality, validity or enforceability under the law of any other
jurisdiction nor the legality, validity or enforceability of any other
provision.
13.8 If any provision in this Agreement is held to be illegal, invalid or
unenforceable in whole or in part, this Agreement shall continue to be
valid as to its other provisions and the remainder of the affected
provision.
14. NOTICES
-------
Any notice required to be given by any party to the other shall be
deemed validly served by hand delivery or by telefax or by prepaid
registered letter sent through the post to its address given herein or
such other address as may from time to time be notified for this
purpose and any notice served by hand shall be deemed to have been
served on delivery, any notice served by telefax shall be deemed to
have been served when sent PROVIDE D that such notice sent by telefax
shall thereafter be sent by post by way of a confirmation copy and any
notice served by prepaid registered letter shall be deemed to have been
served seven (7) days after the time at which it was posted and in
proving service it shall be sufficient to prove that the notice was
properly addressed and delivered or posted, as the case may be. The
initial addresses and telefax numbers of the parties are:-
The Vendor: M2B WORLD PTE LTD
112 Middle Road 408-01, Midland House, Singapore 188970
Telefax no: 6336 9281
Attention: Colin Binny
The Purchaser: AUSTON INTERNATIONAL GROUP LIMITED
45 Middle Road
#05-00 Auston Unicentre
Singapore 188954
Telefax no: 6339 7600
Attention: John Zong Yang Li
15. REMEDIES AND WAIVERS
--------------------
Save as expressly provided herein, any right of rescission conferred
upon the Purchaser or the Vendor hereby shall be in addition to and
without prejudice to all other rights and remedies available to it. No
failure on the part of any party to this Agreement to exercise, and no
delay on its part in exercising, any right or remedy under this
Agreement will operate as a waiver thereof nor will any single or
partial exercise of any right or remedy preclude any other or further
exercise thereof or the exercise of any other right or remedy. The
rights provided in this Agreement are cumulative and not exclusive of
any rights or remedies provided by law.
16. TIME OF ESSENCE
---------------
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Any time, date or period mentioned in any provision of this Agreement
may be extended by mutual agreement between the parties hereto but as
regards any time, date or period originally fixed and not extended or
any time, date or period so extended as aforesaid time shall be of the
essence.
17. THIRD PARTY RIGHTS
------------------
Unless expressly provided to the contrary in this Agreement, a person
who is not a Party has no right under the Contracts (Rights of Third
Parties) Act, Chapter 53B of Singapore to enforce or to enjoy the
benefit of any term of this Agreement.
18. COUNTERPARTS
------------
This Agreement may be signed in any number of counterparts each of
which shall together constitute the same agreement. Any party may enter
into this Agreement by signing any such counterpart. Each counterpart
may be signed and executed by the parties and transmitted by facsimile
transmission and shall be as valid and effectual as if executed as an
original.
19. GOVERNING LAW AND SUBMISSION TO JURISDICTION
--------------------------------------------
19.1 This Agreement shall be construed in accordance with and be governed by
the laws of Singapore.
19.2 In relation to any legal action or proceedings arising out of or in
connection with this Agreement ("PROCEEDINGS"), each party to this
Agreement hereby irrevocably submits to the jurisdiction of the courts
of Singapore and waives any objection to Proceedings in any such court
on the grounds of venue or on the grounds that the Proceedings have
been brought in an inconvenient forum.
19.3 That submission shall not affect the right of the other party to take
Proceedings in any other jurisdiction nor shall the taking of
Proceedings in any jurisdiction preclude the other party from taking
Proceedings in any other jurisdiction.
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IN WITNESS WHEREOF the parties hereto have set their hands the day and year
first abovewritten.
THE VENDOR
- ----------
Signed by
Name: /s/ Colin Binny
NRIC / Passport No: 801581357
for and on behalf of
M2B WORLD PTE LTD
in the presence of
Name: LP Lee
NRIC / Passport No: 11646681
THE PURCHASER
- -------------
Signed by
Name: /s/ John Zong Yang Li
NRIC / Passport No: 093137364
for and on behalf of
AUSTON INTERNATIONAL GROUP LIMITED
in the presence of
Name: LP Lee
NRIC / Passport No: 11646681
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APPENDIX A - SHARE TRANSFER FORM
--------------------------------
Dated 2004
We, , a company incorporated in and having its registered
office at (hereinafter called the "Transferor") in consideration
of the payment of by Company No. (hereinafter called the
"Transferee") pursuant to the Acquisition Agreement dated 200 , do hereby
transfer to the Transferee ordinary shares of par value $ , fully
paid-up in the undertaking called (Company Registration No.: )
to hold unto the Transferee, subject to the several conditions on which we held
the same immediately before the execution hereof, and we, the Transferee, do
hereby agree to accept and take the said shares subject to the conditions
aforesaid.
IN WITNESS:
Signed by }
For and on behalf of }
}
In the presence of. }
}
- ----------------------------
Name of Witness:
NRIC No./Passport No.
Signed by }
For and on behalf of )
)
in the presence of: )
)
- ---------------------------- )
Name of Witness:
NR1C No./Passport No.
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APPENDIX B - LETTER OF RESIGNATION
----------------------------------
Date:
The Board of Directors
[o]
[o ADDRESS]
Dear Sirs
LETTER OF RESIGNATION
I hereby resign as a director of [o] with immediate effect.
I acknowledge and confirm that I have no claim whatsoever against [O] its
officers, agents or employees for breach of contract, compensation for loss of
office, redundancy or unfair dismissal or any other ground, otherwise or
howsoever.
Yours faithfully
Name: [O]
NRIC / Passport No. [o]
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