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EXHIBIT 2.11
EXECUTION COPY
DATED 5 MAY 2000
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(1) LOH WAI YEW
(2) NGAN SUK FUN, MARIANA
AS VENDORS
AND
(3) ASIA ONLINE INTERNATIONAL INC.
AS PURCHASER
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AGREEMENT FOR THE
SALE AND PURCHASE
OF SHARES IN
METRO-LINK SERVICES CO. LIMITED
AND
HOPE LIGHT TRADING LIMITED
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BAKER & MCKENZIE
14TH FLOOR HUTCHISON HOUSE
HONG KONG
TELEPHONE: (852) 2846-1888
FAX: (852) 2845-0476
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CONTENTS
Number Clause Headings Page
- ------ --------------- ----
1. Definitions and Interpretation......................................................................1
2. Sale of Sale Shares.................................................................................8
3. Consideration.......................................................................................8
4. Conditions.........................................................................................10
5. Completion.........................................................................................11
6. Completion Accounts................................................................................16
7. Adjustment of Consideration and Payment of Retained Consideration..................................18
8. Post-Completion Obligations........................................................................19
9. Warranties.........................................................................................22
10. Restriction on Announcements.......................................................................24
11. Confidentiality of Information Received by the Vendors.............................................24
12. Costs..............................................................................................24
13. General............................................................................................25
14. Notices............................................................................................26
15. Governing Law and Submission to Jurisdiction.......................................................26
Schedules
SCHEDULE 1 The Vendors...........................................................................27
SCHEDULE 2 Details of Metro-Link.................................................................*
SCHEDULE 3 Details of Hope Light.................................................................*
SCHEDULE 4 The Hope Light Properties and the Metro-Link Properties...............................*
SCHEDULE 5 Metro-Link Deed of Indemnity..........................................................*
SCHEDULE 6 Hope Light Deed of Indemnity..........................................................*
SCHEDULE 7 Warranties............................................................................*
SCHEDULE 8 Resignation Letter....................................................................*
SCHEDULE 9 Software..............................................................................*
Execution...................................................................................................67
* Schedule omitted -- will be provided supplementally to the Commission upon
request.
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DATE: 5 MAY 2000
PARTIES:
(1) The persons whose names are set out in Column 1 of Schedule 1 (the
"VENDORS"); and
(2) ASIA ONLINE INTERNATIONAL INC., a company incorporated in the British
Virgin Islands whose registered office is at First Floor, Columbus
Centre Building, Road Town, Tortola, British Virgin Islands (the
"PURCHASER").
RECITALS:
(A) The Vendors are the registered holders and beneficial owners of all of
the issued shares in the capital of Metro-Link Services Co. Limited
("METRO-LINK"). Particulars of Metro-Link are set out in Schedule 2.
(B) The Vendors are the registered holders and beneficial owners of all of
the issued shares in the capital of Hope Light Trading Limited ("HOPE
LIGHT"). Particulars of Hope Light are set out in Schedule 3.
(C) The Vendors wish to sell and the Purchaser wishes to purchase all
Metro-Link shares and all Hope Light shares on the terms and conditions
set out in this Agreement.
TERMS AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement where the context so admits the following words and
expressions shall have the following meanings:
"ACCOUNTING DATE" 31 December 1999;
"ASIA ONLINE SHARES" shall mean the Series C Common Stock
of Asia Online, Ltd.;
"AUDITORS" Cheung & Siu, Certified Public
Accountants, Suite 1104A, Tower I,
Admiralty Centre, 18 Harcourt Road,
Hong Kong;
"BUSINESS DAY" a day (excluding Saturdays) on which
banks are generally open for business
in Hong Kong;
"COMPANY" any company or body corporate wherever
incorporated;
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"COMPANIES" Metro-Link and Hope Light and
"Company" means either Metro-Link or
Hope Light;
"COMPANIES ORDINANCE" the Companies Ordinance (Chapter 32 of
the Laws of Hong Kong);
"COMPLETION" completion of the sale and purchase of
the Sale Shares as specified in Clause
5;
"COMPLETION DATE" the date hereof (or such later date as
the Parties may agree in writing);
"CONDITIONS" the conditions specified in Clause
4.1;
"DISCLOSURE LETTER" the letter of today's date from the
Vendors to the Purchaser in the
approved terms;
"EMPLOYMENT AGREEMENT an employment agreement in the
approved terms between Loh Wai Yew and
Asia Online Ltd.;
"HK$" Hong Kong dollars;
"HONG KONG" the Hong Kong Special Administrative
Region of the People's Republic of
China;
"HOPE LIGHT ACCOUNTS" the audited financial statements of
Hope Light for the accounting period
which ended on the Accounting Date
(each such financial statement
comprising a balance sheet, profit and
loss account, notes and directors' and
auditors' report) and the profit and
loss account and balance sheet of Hope
Light as at and for the period ending
on the Accounting Date copies of which
are annexed to the Disclosure Letter;
"HOPE LIGHT BOARD" the board of directors of Hope Light
for the time being;
"HOPE LIGHT COMPLETION
ACCOUNTS" the audited balance sheet of Hope
Light made up as at the close of
business on the Completion Date and
the audited profit and loss account of
Hope Light for the period from the
Accounting Date to the Completion
Date, to be prepared and agreed or
determined in accordance with the
provisions of Clause 6;
"HOPE LIGHT CONSIDERATION" the total consideration for the Hope
Light
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Sale Shares being HK$5,000,000 but
subject to adjustment (if any) under
Clause 7.1;
"HOPE LIGHT CURRENT PROPERTIES" all land and premises currently used
by Hope Light or under the present
ownership, occupation or control of
Hope Light and shall include the Hope
Light Properties;
"HOPE LIGHT DEED OF INDEMNITY" the Deed in the form set out in
Schedule 6;
"HOPE LIGHT DIRECTORS" the persons listed as directors of
Hope Light in Schedule 3;
"HOPE LIGHT FORMER PROPERTIES" all land and premises previously used
by Hope Light or previously owned,
occupied or controlled by Hope Light
and shall exclude the Hope Light
Current Properties;
"HOPE LIGHT INITIAL
CONSIDERATION" the amount of HK$2,220,000;
"HOPE LIGHT LEASED PROPERTIES" the properties short particulars of
which are set out in Part 2 of Item B
of Schedule 4;
"HOPE LIGHT LEASES" all the leases, sub-leases, tenancy
agreements, sub-tenancy agreements,
licences or other documents (including
any options for extension relating
thereto) granted or agreed to be
granted to Hope Light or pursuant to
which Hope Light holds or occupies any
property, details of which are set out
in Part 2 of Item A of Schedule 4;
"HOPE LIGHT MANAGEMENT ACCOUNTS" the unaudited balance sheet of Hope
Light as at 31 March 2000 and the
unaudited profit and loss account of
Hope Light for the period commencing
from the day immediately following the
Accounting Date and ending on 31 March
2000 copies of which are annexed to
the Disclosure Letter;
"HOPE LIGHT NET ASSETS" the net tangible assets of Hope Light
at Completion as shown by the Hope
Light Completion Accounts;
"HOPE LIGHT OWNED PROPERTIES" the properties, short particulars of
which are set out in Part 1 of Item B
of Schedule 4;
"HOPE LIGHT PROPERTIES" the Hope Light Owned Properties and
the Hope Light Leased Properties;
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"HOPE LIGHT RETAINED
CONSIDERATION" the amount of HK$80,000;
"HOPE LIGHT SALE SHARES" the 2 ordinary shares of HK$1.00 each
in the issued share capital of Hope
Light to be bought and sold pursuant
to Clause 2;
"HOPE LIGHT SHARE CONSIDERATION" the amount of HK$2,700,000, payable by
means of 39,158 Asia Online Shares;
"INTELLECTUAL PROPERTY" Includes patents, knowhow, trade
secrets and other confidential
information, registered designs,
copyrights, Internet domain names of
any level, design rights, rights in
circuit layouts, trade marks, service
marks, business names, registrations
of, applications to register and
rights to apply for registration of
any of the aforesaid items, rights in
the nature of any of the aforesaid
items in any country, rights in the
nature of unfair competition rights
and rights to sue for passing off;
"METRO-LINK ACCOUNTS" the audited financial statements of
Metro-Link for the accounting period
which ended on the Accounting Date
(each such financial statement
comprising a balance sheet, profit and
loss account, notes and directors' and
auditors' report) and the profit and
loss account and balance sheet of
Metro-Link as at and for the period
ending on the Accounting Date copies
of which are annexed to the Disclosure
Letter;
"METRO-LINK BOARD" the board of directors of Metro-Link
for the time being;
"METRO-LINK COMPLETION
ACCOUNTS" the audited balance sheet of
Metro-Link made up as at the close of
business on the Completion Date and
the audited profit and loss account of
Metro-Link for the period from the
Accounting Date to the Completion
Date, to be prepared and agreed or
determined in accordance with the
provisions of Clause 6;
"METRO-LINK CONSIDERATION" the total consideration for the
Metro-Link Sale Shares being
HK$45,000,000 but subject to
adjustment (if any) under Clause 7.1;
"METRO-LINK CURRENT PROPERTIES" all land and premises currently used
by
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Metro-Link or under the present
ownership, occupation or control of
Metro-Link and shall include the
Metro-Link Properties;
"METRO-LINK DEED OF INDEMNITY" the Deed in the form set out in
Schedule 5;
"METRO-LINK DIRECTORS" the persons listed as directors of
Metro-Link in Schedule 2;
"METRO-LINK FORMER PROPERTIES" all land and premises previously used
by Metro-Link or previously owned,
occupied or controlled by Metro-Link
and shall exclude the Metro-Link
Current Properties;
"METRO-LINK INITIAL
CONSIDERATION" the amount of HK$19,980,000;
"METRO-LINK LEASED PROPERTIES" the properties short particulars of
which are set out in Part 2 of Item A
of Schedule 4;
"METRO-LINK LEASES" all the leases, sub-leases, tenancy
agreements, sub-tenancy agreements,
licences or other documents (including
any options for extension relating
thereto) granted or agreed to be
granted to Metro-Link or pursuant to
which Metro-Link holds or occupies any
property, details of which are set out
in Part 2 of Item A of Schedule 4;
"METRO-LINK MANAGEMENT
ACCOUNTS" the unaudited balance sheet of
Metro-Link as at 31 March 2000 and the
unaudited profit and loss account of
the Company for the period commencing
from the day immediately following the
Accounting Date and ending on 31 March
2000 copies of which are annexed to
the Disclosure Letter;
"METRO-LINK NET ASSETS" the net tangible assets of Metro-Link
at Completion as shown by the
Metro-Link Completion Accounts;
"METRO-LINK OWNED PROPERTIES" the properties, short particulars of
which are set out in Part 1 of Item A
of Schedule 4;
"METRO-LINK PROPERTIES" the Metro-Link Owned Properties and
the Metro-Link Leased Properties;
"METRO-LINK RETAINED
CONSIDERATION" the amount of HK$720,000;
"METRO-LINK SALE SHARES" the 8,900,000 ordinary shares of
HK$1.00
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each in the issued share capital of
Metro-Link to be bought and sold
pursuant to Clause 2;
"METRO-LINK SHARE CONSIDERATION" the amount of HK$24,300,000, payable
by means of 352,419 Asia Online
Shares;
"OCCUPATIONAL RETIREMENT
SCHEME" an occupational retirement scheme
within the meaning given to that term
in Section 2 of the Occupational
Retirement Schemes Ordinance (Chapter
426 of the Laws of Hong Kong);
"PARTIES" the named parties to this Agreement
and their respective successors and
assigns;
"PURCHASER'S ACCOUNTANTS" PricewaterhouseCoopers of 21st Floor,
Prince's Building, Central, Hong Kong;
"PURCHASER'S SOLICITORS" Baker & McKenzie of 14th Floor
Hutchison House, 10 Harcourt Road,
Central, Hong Kong;
"RETIREMENT SCHEME" the Occupational Retirement Scheme
established by deed of trust dated 12
August 1999 and all rules and
regulations made in connection
therewith;
"SALE SHARES" the Metro-Link Sale Shares and the
Hope Light Sale Shares;
"TAX" all forms of taxation, estate duties,
deductions, withholdings, duties,
imposts, levies, fees, charges, social
security contributions and rates
imposed, levied, collected, withheld
or assessed by any local, municipal,
regional, urban, governmental, state,
federal or other body in Hong Kong or
elsewhere and any interest, additional
taxation, penalty, surcharge or fine
in connection therewith;
"VENDORS' SOLICITORS" Elizabeth Mo & Associates of 3203A,
Tower I, Lippo Centre, 89 Queensway,
Hong Kong; and
"WARRANTIES" the representations, warranties and
undertakings contained or referred to
in Clause 9 and Schedule 7.
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1.2 Save where the context otherwise requires words and phrases the
definitions of which are contained or referred to in the Companies
Ordinance shall be construed as having the meaning thereby attributed
to them.
1.3 Any references, express or implied, to statutes or statutory provisions
shall be construed as references to those statutes or provisions as
respectively amended or re-enacted or as their application is modified
from time to time by other provisions (whether before or after the date
hereof) and shall include any statutes or provisions of which they are
re-enactments (whether with or without modification) and any orders,
regulations, instruments or other subordinate legislation under the
relevant statute or statutory provision. References to Sections of
consolidating legislation shall, wherever necessary or appropriate in
the context, be construed as including references to the Sections of
the previous legislation from which the consolidating legislation has
been prepared.
1.4 References in this Agreement to Clauses and Schedules are to clauses in
and schedules to this Agreement (unless the context otherwise
requires). The Recitals and Schedules to this Agreement shall be deemed
to form part of this Agreement.
1.5 Headings are inserted for convenience only and shall not affect the
construction of this Agreement.
1.6 The expression the "VENDORS" includes their successors and assigns and
the expression the "PURCHASER" includes its successors and assigns.
1.7 References to "PERSONS" shall include bodies corporate, unincorporated
associations and partnerships (whether or not having separate legal
personality).
1.8 References to writing shall include any methods of producing or
reproducing words in a legible and non-transitory form.
1.9 The masculine gender shall include the feminine and neuter and the
singular number shall include the plural and vice versa.
1.10 All warranties, representations, indemnities, covenants, agreements and
obligations given or entered into by more than one person are given or
entered into jointly and severally.
1.11 A document expressed to be "IN THE APPROVED TERMS" means a document the
terms of which have been approved by or on behalf of the Parties and a
copy of which has been signed for the purposes of identification by or
on behalf of those Parties.
1.12 In construing this Agreement:
1.12.1 the rule known as the ejusdem generis rule shall not apply
and, accordingly, general words introduced by the word "other"
shall not be given a restrictive meaning by reason of the fact
that they are preceded by words indicating a particular class
of acts, matters or things; and
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1.12.2 general words shall not be given a restrictive meaning by
reason of the fact that they are followed by particular
examples intended to be embraced by the general words.
2. SALE OF SALE SHARES
A. Sale of Metro-Link Sale Shares
2.1 Subject to the terms of this Agreement, each of the Vendors shall sell
as beneficial owner (and shall cause each other so to sell) and the
Purchaser shall purchase, free from all liens, charges and encumbrances
and together with all rights now or hereafter attaching to them,
including all rights to any dividend or other distribution declared,
made or paid after the date of this Agreement, the number of Metro-Link
Sale Shares set opposite his name in column 2 of Schedule 1.
2.2 Each of the Vendors hereby waives and agrees to procure the waiver of
any restrictions on transfer (including pre-emption rights) which may
exist in relation to the Metro-Link Sale Shares, whether under the
articles of association of Metro-Link or otherwise.
2.3 The Purchaser shall not be obliged to complete the purchase of any of
the Metro-Link Sale Shares unless the purchase of all of the Metro-Link
Sale Shares and all of the Hope Light Sale Shares are completed
simultaneously.
B. Sale of Hope Light Sale Shares
2.4 Subject to the terms of this Agreement, each of the Vendors shall sell
as beneficial owner (and shall cause each other so to sell) and the
Purchaser shall purchase, free from all liens, charges and encumbrances
and together with all rights now or hereafter attaching to them,
including all rights to any dividend or other distribution declared,
made or paid after the date of this Agreement, the number of Hope Light
Sale Shares set opposite his name in column 3 of Schedule 1.
2.5 Each of the Vendors hereby waives and agrees to procure the waiver of
any restrictions on transfer (including pre-emption rights) which may
exist in relation to the Hope Light Sale Shares, whether under the
articles of association of Hope Light or otherwise.
2.6 The Purchaser shall not be obliged to complete the purchase of any of
the Hope Light Sale Shares unless the purchase of all of the Hope Light
Sale Shares and all of the Metro-Link Sale Shares are completed
simultaneously.
3. CONSIDERATION
A. Metro-Link Consideration
3.1 The total consideration payable for the Metro-Link Sale Shares shall be
HK$45,000,000 (Forty-Five Million Hong Kong Dollars) (subject to
adjustment in accordance with Clause 7).
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3.2 The Metro-Link Initial Consideration shall be payable on Completion to
the Vendors in accordance with Clause 5.3.1 in the following amounts:
Loh Wai Yew HK$4,995,000
Ngan Suk Fun, Mariana HK$14,985,000
3.3 Prior to the earlier of either of (i) six months from the Completion
Date or (ii) the date of the initial public offering of the shares of
Asia Online Ltd. (including the Asia Online Shares) on the NASDAQ Stock
Exchange, by way of satisfaction of the Metro-Link Share Consideration,
the Purchaser shall deliver to the Vendors Asia Online Shares issued in
the name of the Vendors in the following proportions:
Loh Wai Yew 88,105 Asia Online Shares
Ngan Suk Fun, Mariana 264,314 Asia Online Shares
PROVIDED THAT the Vendors have fully paid to the Purchaser all actual
payment liabilities and obligations which are outstanding on the date
of issue of the Asia Online Shares, together with all accrued interest,
arising from, in relation to or pursuant to this Agreement.
3.4 The Metro-Link Retained Consideration shall be payable in accordance
with Clause 7.1.
B. Hope Light Consideration
3.5 The total consideration payable for the Hope Light Sale Shares shall be
HK$5,000,000 (Five Million Hong Kong Dollars) (subject to adjustment in
accordance with Clause 7).
3.6 The Hope Light Initial Consideration shall be payable on Completion to
the Vendors in accordance with Clause 5.5.1 in the following amounts:
Loh Wai Yew HK$1,110,000
Ngan Suk Fun, Mariana HK$1,110,000
3.7 Prior to the earlier of either of (i) six months from the Completion
Date or (ii) the date of the initial public offering of the shares of
Asia Online Ltd. (including the Asia Online Shares) on the NASDAQ Stock
Exchange, by way of satisfaction of the Hope Light Share Consideration,
the Purchaser shall deliver to the Vendors Asia Online Shares issued in
the name of the Vendors in the following proportions:
Loh Wai Yew 19,579 Asia Online Shares
Ngan Suk Fun, Mariana 19,579 Asia Online Shares;
PROVIDED THAT the Vendors have fully paid to the Purchaser all actual
payment liabilities and obligations which are outstanding on the date
of issue of the Asia Online Shares, together with all accrued interest,
arising from, in relation to or pursuant to this Agreement.
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3.8 The Hope Light Retained Consideration shall be payable in accordance
with Clause 7.1.
C. Total Retained Consideration
3.9 The Parties agree that the sum of the Metro-Link Retained Consideration
and the Hope Light Retained Consideration shall be HK$800,000.
4. CONDITIONS
4.1 The sale and purchase of the Sale Shares is conditional upon:
4.1.1 the Purchaser notifying the Vendors' Solicitors in writing
that it is satisfied in reliance on the Warranties and upon
inspection and investigation as to :-
4.1.1.1 the financial, contractual, taxation and trading
positions of the Companies;
4.1.1.2 the title of the Companies to their respective
assets; and
4.1.1.3 the results of its searches and the replies to its
enquiries in regard to the Metro-Link Properties and
the Hope Light Properties;
4.1.2 all necessary consents being granted by third parties
(including governmental or official authorities) and no
statute, regulation or decision which would prohibit, restrict
or materially delay the sale and purchase of the Sale Shares
or the operation of the Companies after Completion having been
proposed, enacted or taken by any governmental or official
authority;
4.1.3 all necessary consents being granted by any landlord or other
reversioner (if any) to the Metro-Link Leases and the Hope
Light Leases where the sale and purchase of the Sale Shares
would breach or be deemed to breach any such lease; and
4.1.4 Loh Wai Yew duly executing the Employment Agreement.
4.2 The Purchaser may waive all or any of such conditions at any time by
notice in writing to the Vendors' Solicitors.
4.3 The Vendors shall use their best endeavours to procure the fulfilment
of the Conditions on or before the Completion Date.
4.4 In the event that any of the Conditions shall not have been fulfilled
(or waived pursuant to Clause 4.2) prior to the Completion Date then
the Purchaser shall not be bound to proceed with the purchase of the
Sale Shares and this Agreement shall cease to be of any effect except
Clauses 1, 10, 11, 12, 13.1 to 13.5, 14 and 15 which shall remain in
force and save in respect of claims arising out of any antecedent
breach of this Agreement.
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4.5 In the event that the Purchaser shall give notice in writing of
satisfaction of, or shall waive, the conditions contained in Clause
4.1.1, Clause 4.1.2, Clause 4.1.3 and Clause 4.1.4 such notice or
waiver shall not imply that the Purchaser is not relying on the
Warranties but rather only that it is prepared, in reliance upon the
Warranties and such comfort, if any, as it has taken from its
investigations, to proceed with the transaction.
5. COMPLETION
5.1 Subject to the provisions of Clause 4, Completion shall take place on
the Completion Date at the offices of the Purchaser's Solicitors when
all (but not some only) of the events described in this Clause 5 shall
occur.
A. Metro-Link
5.2 At Completion, the Vendors shall in respect of Metro-Link:
5.2.1 deliver to the Purchaser:
5.2.1.1 duly executed transfers and sold notes in respect of
all of the Metro-Link Sale Shares in favour of the
Purchaser or its nominees together with the relative
share certificates together with a cheque for
HK$50,625 in respect of the Vendors' 50% share of
stamp duty drawn in favour of the Government of the
Hong Kong Special Administrative Region and the
Vendors undertake to pay forthwith half of any
additional stamp duty which may be imposed by the
government of Hong Kong in respect of such transfers
of the Metro-Link Sale Shares;
5.2.1.2 such waivers or consents (if any) as the Purchaser
may reasonably require to enable the Purchaser or its
nominees to be registered as holders of any of the
Metro-Link Sale Shares;
5.2.1.3 the Metro-Link Deed of Indemnity duly executed by the
Vendors and Metro-Link;
5.2.1.4 a letter of resignation of the Auditors as the
auditors of Metro-Link, in the approved terms, such
resignation to contain a statement in accordance with
Section 140A of the Companies Ordinance that there
are no circumstances connected with their resignation
which they consider should be brought to the
attention of the members or creditors of Metro-Link;
5.2.1.5 the title deeds, Metro-Link Leases and all other
relevant deeds, documents and correspondence (if any)
relating to the Metro-Link Properties;
5.2.1.6 all the statutory and other books and records
(including financial records) duly written up to date
of Metro-Link and its
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certificates of incorporation, current business
registration certificate, common seal and any other
papers and documents of Metro-Link;
5.2.1.7 written confirmation in the approved terms that none
of the Vendors or Metro-Link Directors is aware of
any matter or thing which is a breach of or
inconsistent with any of the Warranties;
5.2.1.8 an unconditional letter of release from Metro-Link's
bankers, in the approved terms, evidencing the
release and discharge of all guarantees, debentures
and charges granted by Metro-Link;
5.2.1.9 certified copies of any powers of attorney (if any)
under which any of the documents referred to in this
Clause 5.2 is executed or evidence satisfactory to
the Purchaser of the authority of any person signing
on behalf of any of the Vendors;
5.2.1.10 letters of resignation in the approved terms from
each of the Metro-Link Directors and the secretary of
Metro-Link, such resignations to take effect from
close of the meeting of the Metro-Link Board referred
to in Clause 5.2.3;
5.2.1.11 a duly executed release under seal, in the approved
terms, releasing Metro-Link from any liability
whatsoever (whether actual or contingent) which may
be owing to the Vendors by Metro-Link at Completion;
5.2.1.12 irrevocable powers of attorney (in such form as the
Purchaser may reasonably require) executed under seal
by each of the holders of the Metro-Link Sale Shares
in favour of the Purchaser or such person(s) as may
be nominated by the Purchaser to enable the Purchaser
or its nominees (pending registration of the said
transfers) to act generally in respect of the
Metro-Link Sale Shares and to execute all voting and
other rights attaching to the Metro-Link Sale Shares
and to appoint proxies for that purpose;
5.2.1.13 evidence (if any) reasonably satisfactory to the
Purchaser that all guarantees given by Metro-Link in
favour of third parties in respect of the performance
of the obligations of the Vendors or any other person
(if any) have been released;
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5.2.1.14 evidence reasonably satisfactory to the Purchaser
that all loans or other indebtedness due or owing to
Metro-Link by any of the Vendors or Metro-Link
Directors or other officers of Metro-Link have been
repaid in full; and
5.2.1.15 the Employment Agreement, duly executed by Loh Wai
Yew
5.2.2 pay all monies (if any) then owing by them to Metro-Link,
whether due for payment or not;
5.2.3 cause the Metro-Link Directors to hold a meeting of the
Metro-Link Board at which the Metro-Link Directors shall pass
resolutions in the approved terms (inter alia) to:-
5.2.3.1 approve the registration of the Purchaser or its
nominees as members of Metro-Link subject only to the
production of duly stamped and completed transfers in
respect of the Metro-Link Sale Shares;
5.2.3.2 approve and authorise the execution by Metro-Link of
the Metro-Link Deed of Indemnity;
5.2.3.3 appoint the Purchaser's Accountants as auditors of
Metro-Link;
5.2.3.4 cause such persons as the Purchaser may nominate to
be validly appointed as directors of Metro-Link and
upon such appointment forthwith cause the Metro-Link
Directors and the secretary of Metro-Link to resign
from their respective offices and as employees, each
delivering to the Purchaser a letter under seal in
the form set out in Schedule 8 acknowledging that the
person so retiring has no claim outstanding for
compensation or otherwise; and
5.2.3.5 procure revocation of all authorities to the bankers
of Metro-Link relating to bank accounts and procure
the giving of authority to such persons as the
Purchaser may nominate to operate the same.
5.3 At Completion, the Purchaser shall in respect of Metro-Link:
5.3.1 deliver two cheques drawn by the Purchaser's solicitors
payable to the Vendors respectively for the Metro-Link Initial
Consideration in the respective proportions set out in Clause
3.2; and
5.3.2 deliver to the Vendors a counterpart Metro-Link Deed of
Indemnity duly executed by the Purchaser and a counterpart of
the Employment Agreement duly signed by Asia Online Ltd.
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B. Hope Light
5.4 At Completion, the Vendors shall in respect of Hope Light:
5.4.1 deliver to the Purchaser:
5.4.1.1 duly executed transfers and sold notes in respect of
all of the Hope Light Sale Shares in favour of the
Purchaser or its nominees together with the relative
share certificates together with a cheque for
HK$5,625 in respect of the Vendors' 50% share of
stamp duty drawn in favour of the Government of the
Hong Kong Special Administrative Region and the
Vendors undertake to pay forthwith half of any
additional stamp duty which may be imposed by the
government of Hong Kong in respect of such transfers
of the Hope Light Sale Shares;
5.4.1.2 such waivers or consents (if any) as the Purchaser
may reasonably require to enable the Purchaser or its
nominees to be registered as holders of any of the
Hope Light Sale Shares;
5.4.1.3 the Hope Light Deed of Indemnity duly executed by the
Vendors and Hope Light;
5.4.1.4 a letter of resignation of the Auditors as the
auditors of Hope Light, in the approved terms, such
resignation to contain a statement in accordance with
Section 140A of the Companies Ordinance that there
are no circumstances connected with their resignation
which they consider should be brought to the
attention of the members or creditors of Hope Light;
5.4.1.5 the title deeds, Hope Light Leases and all other
relevant deeds, documents and correspondence (if any)
relating to the Hope Light Properties;
5.4.1.6 all the statutory and other books and records
(including financial records) duly written up to date
of Hope Light and its certificates of incorporation,
current business registration certificate, common
seal and any other papers and documents of Hope
Light;
5.4.1.7 written confirmation in the approved terms that none
of the Vendors or Hope Light Directors is aware of
any matter or thing which is a breach of or
inconsistent with any of the Warranties;
5.4.1.8 an unconditional letter of release from Hope Light's
bankers, in the approved terms, evidencing the
release and discharge of all guarantees, debentures
and charges granted by Hope Light;
5.4.1.9 certified copies of any powers of attorney (if any)
under which any of the documents referred to in this
Clause 5.4 is executed or evidence satisfactory to
the Purchaser of the authority of any person signing
on behalf of any of the Vendors;
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5.4.1.10 letters of resignation in the approved terms from
each of the Hope Light Directors and the secretary of
Hope Light, such resignations to take effect from
close of the meeting of the Hope Light Board referred
to in Clause 5.4.3;
5.4.1.11 a duly executed release under seal, in the approved
terms, releasing Hope Light from any liability
whatsoever (whether actual or contingent) which may
be owing to the Vendors by Hope Light at Completion;
5.4.1.12 irrevocable powers of attorney (in such form as the
Purchaser may reasonably require) executed under seal
by each of the holders of the Hope Light Sale Shares
in favour of the Purchaser or such person(s) as may
be nominated by the Purchaser to enable the Purchaser
or its nominees (pending registration of the said
transfers) to act generally in respect of the Hope
Light Sale Shares and to execute all voting and other
rights attaching to the Hope Light Sale Shares and to
appoint proxies for that purpose;
5.4.1.13 evidence reasonably satisfactory to the Purchaser
that all guarantees given by Hope Light in favour of
third parties in respect of the performance of the
obligations of the Vendors or any other person (if
any) have been released; and
5.4.1.14 evidence reasonably satisfactory to the Purchaser
that all loans or other indebtedness due or owing to
Hope Light by any of the Vendors or Hope Light
Directors or other officers of Hope Light have been
repaid in full.
5.4.2 pay all monies (if any) then owing by them to Hope Light,
whether due for payment or not;
5.4.3 cause the Hope Light Directors to hold a meeting of the Hope
Light Board at which the Hope Light Directors shall pass
resolutions in the approved terms (inter alia) to:-
5.4.3.1 approve the registration of the Purchaser or its
nominees as members of Hope Light subject only to the
production of duly stamped and completed transfers in
respect of the Hope Light Sale Shares;
5.4.3.2 approve and authorise the execution by Hope Light of
the Hope Light Deed of Indemnity;
5.4.3.3 appoint the Purchaser's Accountants as auditors of
Hope Light;
5.4.3.4 cause such persons as the Purchaser may nominate to
be validly
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appointed as directors of Hope Light and upon such
appointment forthwith cause the Hope Light Directors
and the secretary of Hope Light to resign from their
respective offices and as employees, each delivering
to the Purchaser a letter under seal in the form set
out in Schedule 8 acknowledging that the person so
retiring has no claim outstanding for compensation or
otherwise; and
5.4.3.5 procure revocation of all authorities to the bankers
of Hope Light relating to bank accounts and procure
the giving of authority to such persons as the
Purchaser may nominate to operate the same.
5.5 At Completion, the Purchaser shall in respect of Hope Light:
5.5.1 deliver two cheques drawn by the Purchaser's solicitors
payable to the Vendors respectively for the Hope Light Initial
Consideration in the respective proportions set out in Clause
3.6; and
5.5.2 deliver to the Vendors a counterpart Hope Light Deed of
Indemnity duly executed by the Purchaser.
5.6 Without prejudice to any other remedies available to the Purchaser, if
in any respect the provisions of Clause 5 are not complied with by any
of the Vendors on the Completion Date the Purchaser may:
5.6.1 defer Completion to a date not more than 28 days after the
Completion Date (and so that the provisions of this Clause 5.6
shall apply to Completion as so deferred); or
5.6.2 proceed to Completion so far as practicable (without prejudice
to its rights under this Agreement).
6. COMPLETION ACCOUNTS
6.1 Immediately after Completion the Purchaser (or its representatives),
the Purchaser's Accountants (or their representatives) and the Auditors
(or their representatives) shall, if the Purchaser elects, participate
in a physical stocktake or the inventory of each Company to be
conducted by each Company.
6.2 The Vendors shall use all reasonable endeavours to procure that draft
accounts for each of the Companies in respect of the period from the
Accounting Date to the Completion Date shall be prepared by each of the
Companies as soon as reasonably practicable after such stocktake and
such accounts:
6.2.1 shall be prepared on the same accounting bases and in
accordance with the same accounting and valuation principles
and practices as the Metro-Link Accounts or the Hope Light
Accounts, as the case may be, except that each of the
Companies' accounting policy for revenue recognition shall be
that
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revenue will be recognised by each of the Companies when the
relevant equipment and software are delivered to the customer
and the relevant services are rendered to the customer and not
when the customer is invoiced for such equipment and services;
and
6.2.2 shall in all respects comply with current legislation and
standard accounting principles and practice.
6.3 Each of the Companies shall complete the preparation of draft accounts
within fifteen (15) Business Day of the Completion Date. Immediately
following the completion of the preparation of the draft accounts, each
of the Companies shall submit such draft accounts to the Purchaser's
Accountants who shall, within forty-five (45) Business Days from the
date of the submission to them of the draft accounts, conduct and
complete an audit applying the same bases and principles referred to in
Clause 6.2 and produce the Metro-Link Completion Accounts and the Hope
Light Completion Accounts and a draft statement (the "NET ASSET
STATEMENT") for each of the Companies as to the amount of the
Metro-Link Net Assets (or as the case may be) the Hope Light Net Assets
and confirming that in their opinion the Metro-Link Completion Accounts
and the Hope Light Completion Accounts have been prepared in accordance
with the provisions of this Clause 6.
6.4 The Purchaser's Accountants shall, within one (1) week of its
production of the Net Asset Statement for each of the Companies, submit
the draft Metro-Link Completion Accounts and the Hope Light Completion
Accounts and draft Net Asset Statement for each of Metro-Link and Hope
Light to the Vendors for their review to determine if there are any
material adjustments required.
6.5 If the Purchaser and the Vendors are able to agree the form and content
of the Metro-Link Completion Accounts and Hope Light Completion
Accounts and the Net Asset Statement for each of Metro-Link and Hope
Light within 30 days of the date on which the drafts were submitted to
the Vendors (or within such other period as the Vendors and the
Purchaser may agree in writing), the accounts as so agreed shall be the
Metro-Link Completion Accounts and Hope Light Completion Accounts and
the Purchaser's Accountants shall issue a Net Asset Statement for each
of Metro-Link and Hope Light which shall be final and binding on the
Parties but such statement shall be without prejudice to the
Purchaser's right to claim under the Warranties, the Metro-Link Deed of
Indemnity, the Hope Light Deed of Indemnity or otherwise in respect of
any matter. In carrying out their functions under this Agreement, the
Auditors and the Purchaser's Accountants shall be deemed to be acting
as experts and not as arbitrators.
6.6 If the Purchaser and the Vendors shall not be able to agree the form
and content of the Metro-Link Completion Accounts and Hope Light
Completion Accounts and the Net Asset Statement for each of the
Companies within 30 days of the date on which the draft accounts were
first submitted to the Vendors (or within such other period as the
Vendors and the Purchaser may agree in writing) the matter may be
referred by the Vendors or the Purchaser to an independent firm of
chartered accountants selected by agreement between the Vendors and the
Purchaser or, failing agreement, nominated by the President for the
time being of the Hong Kong Society of Accountants on the application
of any of the Vendors or the Purchaser and:
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6.6.1 such independent firm of chartered accountants shall be
requested to settle any matter in dispute, applying the
same bases and principles as are referred to in Clause 6.2
and (unless both the Vendors and the Purchaser shall
otherwise direct in writing) determine the form and
content of the Metro-Link Completion Accounts and the Hope
Light Completion Accounts and the Net Asset Statement for
each of the Companies; and
6.6.2 the decision of such firm of chartered accountants as to
the matter in dispute and their determination (if any) as
to the form and content of the Metro-Link Completion
Accounts and the Hope Light Completion Accounts and the
Net Asset Statement for each of the Companies shall, in
the absence of manifest error, be final and binding on the
Parties and such chartered accountants shall be deemed to
act as experts and not as arbitrators.
6.7 The costs of the Auditors in respect of the preparation and
determination of the Metro-Link Completion Accounts, the Hope Light
Completion Accounts and the two Net Asset Statements shall be borne by
the Vendors and the costs of the Purchaser's Accountants shall be borne
by the Purchaser. The costs of the independent chartered accountant, if
any, shall be borne by the Vendors and the Purchaser equally.
7. ADJUSTMENT OF CONSIDERATION AND PAYMENT OF RETAINED CONSIDERATION
7.1 Within thirty (30) Business Days of the determination of the amount of
the Metro-Link Net Assets and the Hope Light Net Assets in accordance
with Clause 6.5 or (as the case may be) Clause 6.6:
7.1.1 if the Metro-Link Net Assets is less than zero, the Purchaser
shall pay to the Vendors' Solicitors (whose receipt shall be
an absolute discharge thereof) the Metro-Link Retained
Consideration, less the amount that the Metro-Link Net Assets
is less than zero, and the Purchaser shall not be concerned to
see to the distribution of the monies so paid;
7.1.2 if the amount of the Metro-Link Net Assets exceeds zero, the
Purchaser shall pay to the Vendors' Solicitors (whose receipt
shall be an absolute discharge thereof) the Metro-Link
Retained Consideration, plus an amount equal to such excess,
the Purchaser shall not be concerned to see to the
distribution of the monies so paid;
7.1.3 if the Hope Light Net Assets is less than zero, the Purchaser
shall pay to the Vendors' Solicitors (whose receipt shall be
an absolute discharge thereof) the Hope Light Retained
Consideration, less the amount that the Hope Light Net Assets
is less than zero, and the Purchaser shall not be concerned to
see to the distribution of the monies so paid; or
7.1.4 if the amount of the Hope Light Net Assets exceeds zero, the
Purchaser shall pay to the Vendors' Solicitors (whose receipt
shall be an absolute discharge thereof) the Hope Light
Retained Consideration, plus an amount equal to such
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excess, and the Purchaser shall not be concerned to see to the
distribution of the monies so paid.
8. POST-COMPLETION OBLIGATIONS
8.1 Each of the Vendors undertakes with the Purchaser (for itself and as
trustee for the Company) that, except with the consent in writing of
the Purchaser and subject to the provisions of Clause 8.3:
8.1.1 for the period of twenty-four (24) months after Completion he
will not within any country or place in which any of the
Companies has carried on business during the year preceding
Completion either on his own account or in conjunction with or
on behalf of any person, firm or company carry on or be
engaged, concerned or interested, directly or indirectly,
whether as shareholder, director, employee, partner, agent or
otherwise in carrying on the business of systems integration
or any other business carried on by any of the Companies
(other than as a holder of not more than 5 per cent (5%) of
the issued shares or debentures of any company listed on a
recognised stock exchange);
8.1.2 for the period of twenty-four (24) months after Completion he
will not either on his own account or in conjunction with or
on behalf of any other person, firm or company solicit or
entice away or attempt to solicit or entice away from any of
the Companies the customer of any person, firm, company or
organisation who shall at any time within the year preceding
Completion Date have been a customer, representative, agent,
or correspondent of any of the Companies or enter into any
contract for sale and purchase or accept business from any
such person, firm, company or organisation;
8.1.3 for the period of twenty-four (24) months after Completion he
will not either on his own account or in conjunction with or
on behalf of any other person, firm or company employ,
solicit, entice away or attempt to employ, solicit or entice
away from any of the Companies any person who at the date
hereof is or at the date of or within the year preceding such
employment, solicitation, enticement or attempt shall have
been an officer, manager, consultant or employee of any of the
Companies whether or not such person would commit a breach of
contract by reason of leaving such employment;
8.1.4 for the period of twenty-four (24) months after Completion he
will not make use of or disclose or divulge to any person
(other than to officers or employees of any of the Companies
whose province it is to know the same) any information (other
than any information properly available to the public or
disclosed or divulged pursuant to an order of a court of
competent jurisdiction) relating to any of the Companies, the
identity of its customers and suppliers, its products,
finance, contractual arrangements, business or methods of
business and shall use his best endeavours to prevent the
publication or disclosure of any such information;
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8.1.5 if, in connection with the business or affairs of any of the
Companies, he shall have obtained trade secrets or other
confidential information belonging to any third party under an
agreement purporting to bind any of the Companies which
contained restrictions on disclosure he will not at any time
infringe or take any action which would or might result in an
infringement of such restrictions;
8.1.6 he will not at any time hereafter in relation to any trade,
business or company use a name or trade mark including the
words or symbol "Metro-Link" or "Hope Light" or its Chinese
equivalent or any word or symbol confusingly similar thereto
in such a way as to be capable of or likely to be confused
with the name or any trade mark of any of the Companies and
shall use his best endeavours to procure that no such name or
trade mark shall be used by any person, firm or company with
which he is connected.
8.2 Each Vendor shall procure that all companies and businesses directly or
indirectly owned or controlled by him (other than as a holder of not
more than 5 per cent (5%) of the issued shares or debentures of any
company listed on a recognised stock exchange) shall be bound by and
observe the provisions of Clause 8.1 to Clause 8.4 as if they were
parties covenanting with the Purchaser in the same terms.
8.3 While the restrictions contained in Clause 8.1 to Clause 8.4 are
considered by the parties to be reasonable in all the circumstances, it
is recognised that restrictions of the nature in question may fail for
technical reasons and accordingly it is hereby agreed and declared that
if any of such restrictions shall be adjudged to be void as going
beyond what is reasonable in all the circumstances for the protection
of the interests of the Purchaser but would be valid if part of the
wording thereof were deleted or the periods thereof reduced or the
range of activities or area dealt with thereby reduced in scope the
said restriction shall apply with such modifications as may be
necessary to make it valid and effective.
8.4 The Vendors shall indemnify the Companies and the Purchaser against any
and all losses, expenses, costs or damage suffered or incurred by any
of the Companies in relation to any warranty claims by the customers of
any of the Companies which are not adequately covered by the original
manufacturers' and licensors' warranties for the relevant equipment,
software and computer systems sold by the Companies prior to
Completion.
8.5 The Vendors shall indemnify the Companies and the Purchaser against any
and all losses, expenses, costs or damage suffered or incurred by any
of the Companies in respect of or arising from any unauthorised or
infringing use prior to Completion of any computer programs or software
by any of the Companies.
8.6 In relation to the contract for the provision of professional services
to Hewlett-Packard (Hong Kong) Limited ("HP") entered into between
Metro-Link and HP with an effective date in February 1999 (the "HP
Services Agreement"), the Vendors shall indemnify Metro-Link and the
Purchaser against (i) any and all losses, expenses, costs or damage
suffered or incurred by Metro-Link as a result of the termination of
the HP Services Agreement by reason of HP's consent to the sale and
purchase of the Metro-
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Link Sale Shares by the Vendors to the Purchaser not being obtained;
(ii) any third party claims against Metrolink in respect of or arising
from any breach by Metrolink of its obligation under the HP Services
Agreement and against any and all losses, expenses, costs or damage
suffered or incurred by Metro-Link in respect of or arising from any
such third party claims (in each case limited to claims arising from
events occurring prior to Completion); and (iii) any claims by HP
against Metrolink in respect of or arising from any breach by Metrolink
of its obligation under the HP Services Agreement and against any and
all losses, expenses, costs or damage suffered or incurred by
Metro-Link in respect of or arising from any such claims (in each case
limited to claims arising from events occurring prior to Completion).
8.7 In relation to the International Distributor Purchase/Resale Agreement
entered into between Metro-Link and Premisys Systems LLC ("Premisys")
with an effective date of 20 January 1998 (the "Premisys Agreement"),
the Vendors shall indemnify Metro-Link and the Purchaser against any
and all losses, expenses, costs or damage suffered or incurred by
Metro-Link in respect of or arising from the export of any equipment
purchased, resold or distributed pursuant to the Premisys Agreement (in
each case limited to claims arising from events occurring prior to
Completion).
8.8 In relation to the agreement entered into between Metro-Link and HP on
6 April 2000 (together with the undated but signed subcontract
agreement entered into between HP and Metro-Link in respect of the same
subject matter, a copy of which has been provided to the Purchaser with
the Disclosure Letter referred to as the "HP Agreement") where HP is
subcontracting with Metro-Link for Metro-Link to provide services to
the government of Hong Kong ("the Government") relating, alter alia, to
the supply of office automation services, the Vendors shall indemnify
Metro-Link and the Purchaser against any and all losses, expenses,
costs or damage suffered or incurred by Metro-Link in respect of or
arising from any claim made by HP or the Government against Metrolink
in respect of or arising from any breach of the HP Agreement by
Metro-Link (in each case limited to claims arising from breaches
occurring prior to Completion).
8.9 In relation to the reseller agreement (the "Reseller Agreement")
entered into between Metro-Link and Sitara Networks, Inc. ("Sitara")
with an effective date of 1 March 2000, the Vendors shall indemnify
Metro-Link and the Purchaser against any and all losses, expenses,
costs or damage suffered or incurred by Metro-Link as a result of the
termination of the Reseller Agreement by reason of Sitara's consent to
the sale and purchase of the Metro-Link Sale Shares by the Vendors to
the Purchaser not being obtained.
.
8.10 The Vendors shall indemnify Metro-Link, Hope Light and the Purchaser
against any and all losses, expenses, costs or damage suffered or
incurred by Metro-Link, Hope Light or the Purchaser in respect of or
arising from the unauthorised use or occupation by Metro-Link or Hope
Light prior to Completion of the warehouse premises located at Room 14,
Block A, Tong Lik Building, 26 Kai Chung Street, Hong Kong.
8.11 The liabilities of the Vendors under Clauses 8.4 to 8.10 (inclusive of
both Clauses) shall cease after a period of three (3) years commencing
on the date of this Agreement, except in respect of matters which have
been the subject of a written
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claim made under such clauses before such date by the Purchaser or the
Purchaser's solicitors to the Vendors or the Vendors' solicitors.
9. WARRANTIES
9.1 Each of the Vendors jointly and severally represents, warrants and
undertakes to and with the Purchaser that each of the statements set
out in Schedule 7 is true and accurate as of the date hereof.
9.2 The Warranties (other than Warranties 1, 2, 3, 4, 5.1 and 15 in respect
of which no qualification is accepted) are given subject to matters
fully, fairly and specifically disclosed in the Disclosure Letter but
no other information relating to any of the Companies of which the
Purchaser has knowledge (actual or constructive) and no investigation
by or on behalf of the Purchaser shall prejudice any claim made by the
Purchaser under the Warranties or operate to reduce any amount
recoverable, and liability in respect thereof shall not be confined to
breaches discovered before Completion. No letter, document or other
communication shall be deemed to constitute a disclosure for the
purposes of this Agreement unless the same is accepted as such by the
Purchaser and is expressly referred to in the Disclosure Letter.
9.3 The Vendors acknowledge that the Purchaser has entered into this
Agreement in reliance upon the Warranties and has been induced by them
to enter into this Agreement.
9.4 Without restricting the rights of the Purchaser or otherwise affecting
the ability of the Purchaser to claim damages on any other basis
available to it, in the event that any of the Warranties is broken or
(as the case may be) proves to be untrue or misleading, the Vendors
shall, on demand, pay to the Purchaser or, at the Purchaser's
direction, the Companies:
9.4.1 the amount necessary to put the Companies into the position
which would have existed if the Warranties had not been broken
or (as the case may be) had been true and not misleading; and
9.4.2 all costs and expenses incurred by the Purchaser and the
Companies in connection with or as a result of such breach and
any costs (including legal costs on a solicitor and own client
basis), expenses or other liabilities which any of them may
incur either before or after the commencement of any action in
connection with (i) any legal proceedings in which the
Purchaser claims that any of the Warranties has been broken or
is untrue or misleading and in which judgment is given for the
Purchaser or (ii) the enforcement of any settlement of, or
judgment in respect of, such claim.
9.5 Each of the Warranties shall be separate and independent and, save as
expressly provided to the contrary, shall not be limited by reference
to or inference from any other Warranty or any other term of this
Agreement, nor by anything in the Disclosure Letter which is not
expressly referenced to the Warranty concerned.
9.6 Each of the Vendors hereby agrees with the Purchaser (for itself and as
trustee for the Companies) to waive any rights which he may have in
respect of any
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misrepresentation or inaccuracy in, or omission from, any information
or advice supplied or given by any of the Companies or its officers,
employees or advisers in connection with the giving of the Warranties
and the preparation of the Disclosure Letter.
9.7 The Vendors shall give to the Purchaser and its solicitors and
accountants both before and after Completion all such information and
documentation relating to any of the Companies as the Purchaser shall
reasonably require to enable it to satisfy itself as to the accuracy
and due of observance of the Warranties.
9.8 The benefit of the Warranties may be assigned in whole or in part and
without restriction by the person for the time being entitled thereto.
9.9 If any sum payable by the Vendors under this Clause 9 shall be subject
to Tax (whether by way of deduction or withholding or direct assessment
of the person entitled thereto) such payment shall be increased by such
an amount as shall ensure that after deduction, withholding or payment
of such Tax the recipient shall have received a net amount equal to the
payment otherwise required hereby to be made.
9.10 Where any statement in the Warranties is qualified by the expression
"to be best of the Vendors' knowledge and belief" or any similar
expression, that statement shall be deemed to include an additional
statement that it has been made after due and careful enquiry.
9.11 The liabilities of the Vendors under the Warranties:
9.11.1 shall only apply in respect of breaches of any Warranty
occurring prior to Completion;
9.11.2 shall save in relation to the Warranties in respect of Tax
(the "Tax Warranties") (to which paragraph 9.11.3 applies)
cease after a period of three (3) years commencing on the date
of this Agreement, except in respect of matters which have
been the subject of a written claim made before such date by
the Purchaser or the Purchaser's Solicitors to any of the
Vendors or the Vendors' Solicitors;
9.11.3 shall in relation to the Tax Warranties cease after a period
of seven (7) years commencing on the date of this Agreement,
except in respect of matters which have been the subject of a
written claim made before such date by the Purchaser or the
Purchaser's Solicitors to any of the Vendors or the Vendors'
Solicitors; and
PROVIDED ALWAYS that if in any case the relevant claim or claims has
arisen by reason of:
9.11.4 fraud or wilful concealment or dishonesty or deliberate
non-disclosure on the part of any of the Vendors or on the
part of any officer or representative of any of the Company or
of the Vendors prior to the date of this Agreement; or
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9.11.5 any of the Companies not having good title to any asset
(including any shares or stock of any company) of which it is
now warranted to be the owner; or
9.11.6 an alleged breach of any Tax Warranty arising by reason of
fraud or fraudulent concealment or dishonesty or deliberate
non declaration or non disclosure on the part of any of the
Vendors of any of the Companies;
then in any such case none of the limitations as to time set forth in
this Clause 9.11 shall apply.
10. RESTRICTION ON ANNOUNCEMENTS
Each of the Parties undertakes that it will not (save as required by
law or by any securities exchange or any supervisory or regulatory body
to whose rules any of the Parties is subject) make any announcement in
connection with this Agreement unless the other Parties shall have
given their respective consents to such announcement (which consents
may not be unreasonably withheld or delayed and may be given either
generally or in a specific case or cases and may be subject to
conditions).
11. CONFIDENTIALITY OF INFORMATION RECEIVED BY THE VENDORS
11.1 The Vendors undertake with the Purchaser that they shall treat as
strictly confidential all information received or obtained by them or
their employees, authorised agents or advisers as a result of entering
into or performing this Agreement including information relating to the
provisions of this Agreement, the negotiations leading up to this
Agreement, the subject matter of this Agreement or the business or
affairs of the Purchaser or any member of the Purchaser's group of
companies and subject to the provisions of Clause 11.2 that they will
not at any time hereafter make use of or disclose or divulge to any
person any such information and shall use their best endeavours to
prevent the publication or disclosure of any such information.
11.2 The restrictions contained in Clause 11.1 shall not apply so as to
prevent the Vendors from making any disclosure required by law or by
any securities exchange or supervisory or regulatory or governmental
body pursuant to rules to which the relevant Vendor is subject or from
making any disclosure to any professional adviser for the purposes of
obtaining advice (provided always that the provisions of this Clause 11
shall apply to and the Vendors shall procure that they apply to and are
observed in relation to, the use or disclosure by such professional
adviser of the information provided to him) nor shall the restrictions
apply in respect of any information which comes into the public domain
otherwise than by a breach of this Clause 11 by any Vendors.
12. COSTS
12.1 Each party to this Agreement shall pay its own costs of and incidental
to this Agreement.
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12.2 The Vendors confirm that no expense of whatever nature relating to the
sale of the Sale Shares has been or is to be borne by any of the
Companies.
13. GENERAL
13.1 This Agreement shall be binding upon and enure for the benefit of the
estates, personal representatives or successors of the Parties.
13.2 This Agreement (together with any documents referred to herein or
executed contemporaneously by the Parties in connection herewith)
constitutes the whole agreement between the Parties and supersedes any
previous agreements or arrangements between them relating to the
subject matter hereof; it is expressly declared that no variations
hereof shall be effective unless made in writing signed by duly
authorised representatives of the Parties.
13.3 All of the provisions of this Agreement shall remain in full force and
effect notwithstanding Completion (except insofar as they set out
obligations which have been fully performed at Completion).
13.4 If any provision or part of a provision of this Agreement shall be, or
be found by any authority or court of competent jurisdiction to be,
invalid or unenforceable, such invalidity or unenforceability shall not
affect the other provisions or parts of such provisions of this
Agreement, all of which shall remain in full force and effect.
13.5 If any liability of one or more but not all of the Vendors shall be or
become illegal, invalid or unenforceable in any respect, such
circumstance shall not affect or impair the liabilities of the other
Vendors under this Agreement.
13.6 Any right of rescission conferred upon the Purchaser hereby shall be in
addition to and without prejudice to all other rights and remedies
available to it (and, without prejudice to the generality of the
foregoing, shall not extinguish any right to damages to which the
Purchaser may be entitled in respect of the breach of this Agreement)
and no exercise or failure to exercise such a right of rescission shall
constitute a waiver by the Purchaser of any such other right or remedy.
13.7 The Purchaser may release or compromise the liability of any of the
Vendors hereunder or grant to any Vendor time or other indulgence
without affecting the liability of any other Vendor hereunder.
13.8 No failure of either party hereto to exercise, and no delay or
forbearance in exercising, any right or remedy in respect of any
provision of this Agreement shall operate as a waiver of such right or
remedy.
13.9 Upon and after Completion the Vendors shall do and execute or procure
to be done and executed all such further acts, deeds, documents and
things as may be necessary to give effect to the terms of this
Agreement and to place control of the Company in the hands of the
Purchaser and pending the doing of such acts, deeds, documents and
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things the Vendors shall as from Completion hold the legal estate in
the Sale Shares in trust for the Purchaser.
13.10 This Agreement may be executed in one or more counterparts, and by the
Parties on separate counterparts, but shall not be effective until each
party has executed at least one counterpart and each such counterpart
shall constitute an original of this Agreement but all the counterparts
shall together constitute one and the same instrument.
14. NOTICES
Any notice required to be given by any party hereto to any other shall
be deemed validly served by hand delivery or by prepaid registered
letter sent through the post (airmail if to an overseas address) or by
facsimile transmission 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 facsimile transmission shall be deemed to have
been served when sent and any notice served by prepaid registered
letter shall be deemed to have been served 72 hours in the case of a
letter sent by airmail to an address in another country after the time
at which it was posted and in proving service it shall be sufficient
(in the case of service by hand and prepaid registered letter) to prove
that the notice was properly addressed and delivered or posted, as the
case may be, and in the case of service by facsimile transmission to
prove that the transmission was confirmed as sent by the originating
machine.
15. GOVERNING LAW AND SUBMISSION TO JURISDICTION
15.1 This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong and the parties hereto irrevocably submit to the
non-exclusive jurisdiction of the Hong Kong courts for the purpose of
enforcing any claim arising hereunder.
15.2 The Purchaser hereby irrevocably appoints Asia Online Ltd. of 16/F, One
International Finance Centre, Central, Hong Kong to receive service of
any proceedings in the Hong Kong Courts in connection with this
Agreement.
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SCHEDULE 1
THE VENDORS
(1) (2) (3)
NAME AND ADDRESS OF THE VENDORS NUMBER OF METRO-LINK SALE NUMBER OF HOPE LIGHT SALE
SHARES SHARES
MR. LOH WAI YEW Two Million One Hundred and One (1)
(Hong Kong Identity Card No. K163145(4)) Ninety Nine Thousand Nine
Flat 2B, 15th Floor Hundred and Ninety Eight
Clovelly Court (2,199,998)
12 May Road
Hong Kong
MS. NGAN SUK FUN, MARIANA Six Million Seven Hundred One (1)
(Hong Kong Identity Card No. G017303(6)) Thousand and Two (6,700,002)
Flat 2B, 15th Floor
Clovelly Court
12 May Road
Hong Kong
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IN WITNESS WHEREOF the parties hereto have signed this document on the date
appearing at the head hereof.
SIGNED BY KEVIN H. RANDOLPH )
for and on behalf of ) /s/ KEVIN H. RANDOLPH
-------------------------
ASIA ONLINE INTERNATIONAL INC. ) Kevin H. Randolph
in the presence of: )
/s/ [ILLEGIBLE]
- -----------------------
Witness
SIGNED, SEALED AND DELIVERED )
by LOH WAI YEW ) /s/ LOH WAI YEW
-------------------------
in the presence of: ) Loh Wai Yew
/s/ JENNIFER VAN DALE
- ---------------------
Witness [STAMP]
SIGNED, SEALED AND DELIVERED )
by NGAN SUK FUN, MARIANA ) /s/ NGAN SUK FUN
-------------------------
in the presence of: ) Ngan Suk Fun, Mariana
/s/ JENNIFER VAN DALE
- ---------------------
Witness [STAMP]
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