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EXHIBIT 2.12A
[WONG & PARTNERS LETTERHEAD]
DATED THE 28th DAY OF January 2000
Between
ASIA ONLINE INTERNET SERVICES SDN BHD
as Purchaser
AND
UTUSAN MELAYU (MALAYSIA) BERHAD
as Vendor
AND
UTUSAN MULTIMEDIA SDN. BHD.
as the Company
-----------------------------------------
SHARE PURCHASE AND SUBSCRIPTION AGREEMENT
RELATING TO
UTUSAN MULTIMEDIA SDN. BHD.
-----------------------------------------
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TABLE OF CONTENTS
CLAUSE HEADING PAGE
1. INTERPRETATION...........................................................2
2. CAPITALISATION OF THE SHAREHOLDER'S LOAN, SALE OF THE SALE SHARES
AND SUBSCRIPTION OF THE SUBSCRIPTION SHARES..............................8
3. CONSIDERATION............................................................9
4. CONDITIONS..............................................................10
5. COMPLETION..............................................................11
6. VENDOR'S AND COMPANY'S OBLIGATIONS AND UNDERTAKINGS.....................16
7. RESTRICTIONS ON THE VENDOR..............................................18
8. TERMINATION.............................................................20
9. VENDOR'S REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS...................21
10. COMPANY'S REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS..................23
11. RESTRICTION ON ANNOUNCEMENTS............................................24
12. ACCESS TO INFORMATION...................................................25
13. CONFIDENTIAL INFORMATION................................................25
14. GENERAL.................................................................26
15. GOVERNING LAW...........................................................28
16. ARBITRATION.............................................................28
17. COUNTERPARTS............................................................28
SCHEDULE 1.....................................................................*
PARTICULARS OF THE COMPANY.......................................................*
SCHEDULE 2......................................................................*
THE CONTINUING DIRECTORS.........................................................*
SCHEDULE 3......................................................................*
THE DIRECTORS....................................................................*
SCHEDULE 4......................................................................*
TENANCY..........................................................................*
SCHEDULE 5......................................................................*
DETAILS OF SOFTWARE..............................................................*
SCHEDULE 6......................................................................*
VENDOR'S REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS............................*
SCHEDULE 7......................................................................*
COMPANY'S REPRESENTATIONS AND WARRANTIES.........................................*
SCHEDULE 8.......................................................................*
KEY EMPLOYEES....................................................................*
APPENDIX A......................................................................*
FORM OF LETTER OF RESIGNATION....................................................*
APPENDIX B......................................................................*
FORM OF NO-CLAIMS LETTER.........................................................*
* Schedule omitted -- will be provided supplementally to the Commission upon
request.
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APPENDIX C1.....................................................................
FORM OF VENDOR'S DISCLOSURE LETTER...............................................
APPENDIX C2.....................................................................
FORM OF COMPANY'S DISCLOSURE LETTER..............................................
APPENDIX D......................................................................
FORM OF DEED OF INDEMNITY........................................................
APPENDIX E......................................................................
FORM OF SHAREHOLDERS' AGREEMENT..................................................
APPENDIX F.......................................................................
FORM OF EMPLOYMENT CONTRACTS.....................................................
APPENDIX G......................................................................
FORM OF SERVICES AGREEMENT.......................................................
APPENDIX H.......................................................................
FORM OF SUBCONTRACT..............................................................
APPENDIX I......................................................................
FORM OF TENANCY AGREEMENT........................................................
APPENDIX J......................................................................
FORM OF COMPANY'S RESOLUTIONS FOR COMPLETION.....................................
APPENDIX K......................................................................
FORM OF VENDOR'S RESOLUTIONS FOR COMPLETION......................................
APPENDIX L......................................................................
FORM OF PURCHASER'S APPLICATION FOR..............................................
SUBSCRIPTION OF COMPANY'S SHARES.................................................
APPENDIX M......................................................................
FORM OF PURCHASER'S RESOLUTIONS..................................................
APPROVING THE ACQUISITION AND SUBSCRIPTION.......................................
APPENDIX N......................................................................
FORM OF COMPANY'S RESOLUTIONS FOR................................................
APPROVAL OF ALLOTMENT AND ISSUANCE OF SUBSCRIPTION SHARES........................
APPENDIX O......................................................................
FORM OF COMPANY'S SHAREHOLDER'S RESOLUTIONS FOR..................................
APPROVAL OF ALLOTMENT AND ISSUANCE OF SUBSCRIPTION SHARES........................
APPENDIX P......................................................................
VENDOR'S COMPLETION CERTIFICATE..................................................
APPENDIX Q......................................................................
COMPANY'S COMPLETION CERTIFICATE.................................................
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THIS AGREEMENT is made on the 28 day of January 2000.
BETWEEN:
ASIA ONLINE INTERNET SERVICES SDN. BHD., a company incorporated in Malaysia
whose registered office is at Faber Imperial Court, Suite 12-1B, Jalan Sultan
Ismail, 50250 Kuala Lumpur, Malaysia ("PURCHASER");
AND
UTUSAN MELAYU (MALAYSIA) BERHAD ("UTUSAN"), a company incorporated in Malaysia
whose registered office is at 46M, Jalan Lima, Off Jalan Chan Sow Lin, 55200
Kuala Lumpur, Malaysia ("VENDOR");
AND
UTUSAN MULTIMEDIA SDN. BHD. ("COMPANY"), a company incorporated in Malaysia
whose registered office is at 46M, Jalan Lima, Off Jalan Chan Sow Lin, 55200
Kuala Lumpur, Malaysia ("COMPANY").
RECITALS:
A. The Company is in the process of increasing its issued and paid up capital
from RM2 represented by 2 ordinary shares of RM1.00 each to RM360,000
through the issuance and allotment of 359,998 ordinary shares of RM1.00
each to the Vendor ("VENDOR SUBSCRIPTION SHARES").
B. The Company is in the business of providing multimedia and information
technology solutions.
C. Upon the completion of the subscription of the 359,998 shares in the
Company, the Vendor has agreed to sell and the Purchaser has agreed to
purchase 90,000 Shares (as defined below) consisting of 25% of the issued
share capital of the Company following the completion of the subscription
of the Vendor Subscription Shares upon the terms and conditions set out
below.
D. Following the Completion (as defined below) of the sale and purchase of
the Sale Shares, the Purchaser shall, subscribe for 191,025 Shares
("SUBSCRIPTION SHARES"), resulting in the Purchaser holding a total of
281,025 Shares representing 51% of the issued and paid up Shares of the
Company and the Vendor holding 270,000 Shares representing 49% of the
issued and paid up Shares of the Company upon the terms and conditions set
out below.
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IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement, unless the context requires otherwise:
"ACCOUNTING DATE" means 31 December 1998;
"ARTICLES" means the articles of association of the
Company;
"ASIA ONLINE LIMITED" means Asia Online Limited, a company
OR "ASIA ONLINE" incorporated in Delaware, United States of
America with its business address at the
16/F One International Finance Centre, No. 1
Harbour View Street, Central, Hong Kong;
"AUDITED ACCOUNTS" means the audited balance sheets of the
Company made up as at the Accounting Date
and the audited profit and loss accounts of
the Company for the year ended on that date
including the Director's report, statement
by Directors, auditor's report and all notes
contained therein;
"AUDITORS" means PricewaterhouseCoopers of 11th Floor,
Wisma Sime Darby, Jalan Raja Laut, 50350
Kuala Lumpur;
"CLAIM" means any notice, demand, assessment, letter
or other document issued or action taken by
any revenue or taxing authority or other
statutory or governmental authority body or
official whosoever whereby the Company is or
may be placed or sought to be placed under a
liability to make a payment on any Taxes or
deprived of any relief, allowance, credit or
repayment otherwise available;
"COMMUNICATIONS AND means the Malaysian Communications and
MULTIMEDIA ACT" Multimedia Act 1998;
"COMPANIES ACT" means the Malaysian Companies Act 1965;
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"COMPLETION" means completion of the sale and purchase
of the Sale Shares and the Subscription of
the Subscription Shares as specified in
Clause 5;
"COMPANY'S DISCLOSURE LETTER" means the disclosure letter to be delivered
on or before the Completion Date by the
Company to the Purchaser, in the form set
out in Appendix C2;
"COMPETING BUSINESS" means any business of providing internet
access services, re-selling of internet
access services, web-hosting, database
hosting, server co-location, intranet
hosting, web mail services, homepage
services, e-commerce services, virtual
private network management, re-selling of
internet access services, on-line
classifieds services, leased lines,
electronic bookstores, and network
consultancy services, in competition with
the business carried on by the Company;
"COMPLETION ACCOUNTS" means the audited balance sheet of
the Company made up as at the close of
business on the Completion Date and the
audited profit and loss account of the
Company for the period from the Accounting
Date to the Completion Date;
"COMPLETION" means the completion of the sale of the
Sale Shares to the Purchaser and the issue
of the Subscription Shares to the Purchaser
in accordance with Clause 5;
"COMPLETION DATE" means the same date as the date of the
execution of this Agreement or such later
date as the Parties may agree in writing
prior to Completion;
"CONFIDENTIAL INFORMATION" means any information which is proprietary
and confidential to a party including but
not limited to the terms and conditions of
this Agreement, information concerning or
relating in any way whatsoever to its
distributorship arrangements, principals,
any of the trade secrets or confidential
operations, processes or inventions carried
on or used by a party, any information
concerning the organisation, business,
business methods, finances, transactions or
affairs of a party, dealings of a party,
secret or confidential information which
relates to the business or party or any of
its principals', clients' or customers'
transactions or affairs, any party's
technology,
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designs, documentation, manuals, budgets,
financial statements or information,
accounts, dealers' lists, suppliers' list,
customer lists, marketing studies, drawings,
notes, memoranda and the information
contained therein, any information therein
in respect of trade secrets, technology and
technical or other information relating to
the development, manufacture, clinical
testing, analysis, marketing, sale or supply
or proposed development, manufacture,
clinical testing, analysis, marketing, sale
or supply of any products or services by a
party; and plans for the development or
marketing of such products or services and
information and material which is either
marked confidential or is by its nature
intended to be exclusively for the knowledge
of the recipient alone;
"CONTINUING DIRECTORS" means the Directors who shall continue as
directors of the Company following
Completion, whose names are set out in
Schedule 2;
"CUT-OFF DATE" means the date of this Agreement;
"DEED OF INDEMNITY" means the deed of indemnity in the form set
out in Appendix D;
"DIRECTORS" means the existing directors of the Company,
whose names are set out in Schedule 3;
"EMPLOYMENT CONTRACTS" means the employment contracts to be entered
into between the Company and the Key
Employees in the form set out in Appendix F;
"ENCUMBRANCE" means any form of legal, equitable, or
security interests, including but not
limited to any mortgage, assignment of
receivables, debenture, lien, charge,
pledge, title retention, right to acquire,
security interest, hypothecation, options,
rights of first refusal, any preference
arrangement (including title transfers and
retention arrangements or otherwise) and any
other encumbrance or condition whatsoever or
any other arrangements having similar
effect;
"INTELLECTUAL PROPERTY" includes patents, knowhow, trade secrets and
other confidential information, registered
designs, copyrights, design rights,
topography rights, trade
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marks, service marks, business names, domain
names, registrations of and applications to
register 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;
"JASPA" means the Jaring Access Service Provider
Agreement dated 30 December 1996 between
Utusan and MIMOS Berhad, one of the main
internet access providers in Malaysia who
provide their services under the name
"Jaring";
"KEY EMPLOYEES" means the persons whose names are set out in
Schedule 8;
"LEGAL CLAIM" means any notice, demand, assessment, letter
or other document issued or action taken by
any third party against the Company
including any actions taken by any advocate,
solicitor or legal counsel on behalf of such
persons whereby the Company is or may be
placed or sought to be placed under any form
of liability;
"MANAGEMENT ACCOUNTS" means the balance sheets of the Company as
at 31 October 1999 and the profit and loss
accounts of the Company for the period from
1 January 1999 to 31 October 1999, being the
accounts which have been audited by the
Auditors specifically for the purpose of the
Purchaser purchasing the Sale Shares and
subscribing for the Subscription Shares;
"MULTIMEDIA SUPER CORRIDOR means the status awarded by the Multimedia
STATUS" Development Corporation of Malaysia to
companies carrying out activities relating
to advanced technology which affords the
party awarded with such status various tax
and other privileges under Malaysian law;
"PARTIES" OR "PARTY" means the Vendor, Purchaser and the Company
and such one of them, as the case may be;
"PRE-COMPLETION PERIOD" means the period from the date of this
Agreement until Completion (if Completion
takes place on a date which is different
from the date of this Agreement);
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"PURCHASER'S ACCOUNTANTS" means PricewaterhouseCoopers of 11th Floor,
Wisma Sime Darby, Jalan Raja Laut, 50350
Kuala Lumpur;
"PURCHASER'S SOLICITORS" means Wong & Partners of Faber Imperial
Court, Suite 12-1A, Jalan Sultan Ismail
50250 Kuala Lumpur;
"RELATED CORPORATION" has the meaning ascribed to it in section 6
of the Companies Act;
"RM" OR "MALAYSIAN RINGGIT" means the lawful currency of Malaysia;
"SALE SHARES" means the 90,000 ordinary shares of RM1.00
each in the enlarged issued and paid up
capital of the Company following the
completion of the subscription of the Vendor
Subscription Shares by the Vendor, to be
sold by the Vendor and purchased by the
Purchaser pursuant to the terms and
conditions set out in this Agreement;
"SALE SHARES CONSIDERATION" means the consideration for the transfer of
the Sale Shares being the sum(s) specified
in Clause 3;
"SECURITIES" means any form of debentures, bonds, stocks
and shares in a company and includes any
right or option in respect thereof;
"SERVICES AGREEMENT" means the services agreement to be entered
into between the Vendor and the Company
whereby the Vendor shall provide certain
services to the Company and the Company
shall provide certain services to the Vendor
in the form set out in Appendix G;
"SHAREHOLDERS' AGREEMENT" means the shareholders' agreement in the
form set out in Appendix E;
"SHAREHOLDER'S LOAN" means the aggregate of all sums, advances
and credits obtained by the Company from
Utusan which are still outstanding as at the
hereof;
"SHARES" means all or any part of the ordinary shares
of RM1.00 each in the share capital of the
Company;
"STAMP ACT" means the Malaysian Stamp Act 1949;
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"SUBCONTRACT" means the subcontract entered into between
the Vendor and the Company in relation to
the JASPA in the form set out in Appendix H;
"SUBSCRIPTION SHARES
CONSIDERATION" means the consideration for the subscription
of the Subscription Shares being the sum(s)
specified in Clause 3;
"SUBSIDIARY" has the meaning ascribed to it in section 5
of the Companies Act;
"TAXES" or "TAXATION" means all forms of taxation including all
taxes past, present and deferred, including,
without limitation, income, corporate,
occupation, real and personal property,
gross receipts, sales, use, ad valorem,
franchise, license, withholding, payroll,
employment, excise, severance, service tax,
occupation, estate duty, stamp duty, good
and services, customs and other import or
export duties, or charges of any kind
whatsoever, estimated and other taxes,
together with any interest and levies and
all penalties, charges, costs and additions
to tax, payable by or due from the Company,
or any additional amounts imposed by any
government, governmental agency, statutory
body or any revenue authority, upon the
Company;
"TENANCY AGREEMENT" means all the tenancy agreements (including
any options for extension relating thereto)
to which the Company is a party in the form
set out in Appendix I, brief details of
which are set out in Schedule 4;
"THIRD PARTY CONFIDENTIAL means Confidential Information belonging to
INFORMATION" a third party;
"VALUE ADDED NETWORK means the licence dated 13 May 1998
SERVICES LICENCE OR VANS granted by the then Minister of Energy,
LICENCE" Telecommunications & Posts to the
Vendor to carry out various activities
relating to value added network services;
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"VENDOR'S DISCLOSURE LETTER" means the disclosure letter to be delivered
on or before the Completion Date by the
Vendor to the Purchaser, in the form set out
in Appendix C1;
"VENDOR'S SOLICITORS" means Kadir, Tan & Ramli of 8th Floor,
Menara Safuan, 80 Jalan Ampang 50450 Kuala
Lumpur; and
"WARRANTIES" means collectively, the representations,
warranties and undertakings of the Vendor in
Clause 9 and Schedule 6, and the
representations, warranties and undertakings
of the Company in Clause 10 and Schedule 7;
and "WARRANTY" shall mean each or any of the
Warranties.
1.2 References to statutory provisions shall be construed as references to
those provisions as 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,
schedules and appendices to this Agreement unless the context requires
otherwise and the Schedules and Appendices to this Agreement shall be
deemed to form part of this Agreement.
1.4 The expressions "Vendor", "Purchaser" and the "Company" shall, where the
context permits, include their respective successors and permitted
assigns.
1.5 All representations, warranties, undertakings, indemnities, covenants,
agreements and obligations given or entered into by more than one person
are given or entered into jointly and severally.
1.6 The headings are inserted for convenience only and shall not affect the
construction of this Agreement.
1.7 Unless the context requires otherwise, words importing the singular
include the plural and vice versa and words importing a gender include
every gender.
1.8 No rule of construction applies to the disadvantage of a party because the
party was responsible for the preparation of this Agreement or any part of
it.
2. CAPITALISATION OF THE SHAREHOLDER'S LOAN, SALE OF THE SALE SHARES AND
SUBSCRIPTION OF THE SUBSCRIPTION SHARES
2.1 Subject to the terms of this Agreement, the Parties hereby agree that they
shall do the following, in the order set out below:
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(a) the Vendor shall subscribe for the Vendor Subscription Shares by
capitalising the Shareholder's Loan in the sum of RM359,998 into the
share capital of the Company as Shares, the completion of which
would result in an increase in the total issued and paid up capital
of the Company to RM360,000;
(b) the Vendor as legal and beneficial owner of the Sale Shares, shall
sell and the Purchaser shall purchase the Sale Shares free from all
Encumbrances and together with all rights now or hereafter attaching
thereto; and
(c) the Purchaser shall subscribe for the Subscription Shares and the
Vendor shall procure that the Company shall, and the Company shall
allot and issue the Subscription Shares to the Purchaser.
2.2 The Purchaser shall not be obliged to complete the purchase of any of the
Sale Shares unless the purchase of all of the Sale Shares is completed
simultaneously together with the subscription by and the issuance of the
Subscription Shares to the Purchaser.
2.3 The Vendor hereby waives any rights of pre-emption conferred on it by the
Articles or otherwise over the Subscription Shares to be subscribed by the
Purchaser.
2.4 Following the allotment and issue to the Vendor of the Vendor Subscription
Shares, the sale of the Sales Shares to the Purchaser and the subscription
of the Subscription Shares by the Purchaser, the Shares shall be held in
the following proportions:
Shareholder Percentage % Number of Shares
----------- ------------ ----------------
Purchaser 51 281,025
Vendor 49 270,000
Total 100 551,025
3. CONSIDERATION
3.1 The Sale Shares Consideration payable for the Sale Shares shall be the sum
of Ringgit Malaysia Five Million (RM5,000,000) which shall be paid to the
Vendor on Completion in accordance with the Clause 5.3.
3.2 The Purchaser hereby agrees to subscribe for the Subscription Shares at a
premium of approximately Ringgit Malaysia Fifty-Four and Cents Fifty Five
(RM54.55) per share. The Subscription Shares Consideration for the
subscription of the Subscription Shares shall be the sum of Ringgit
Malaysia Ten Million Six Hundred and Twelve Thousand and Five Hundred
(RM10,612,500) which shall be paid in accordance with Clause 10 of the
Shareholders' Agreement.
3.3 A sum of Ringgit Malaysia Three Million Seven Hundred Thousand
(RM3,700,000) shall be paid by the Purchaser to the Company as payment for
a part of the Subscription Shares Consideration on the Completion Date.
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4. CONDITIONS
4.1 The Completion of the sale and purchase of the Sale Shares and the
subscription of the Subscription Shares is conditional upon:
(a) the passing by the board of directors (or any duly authorised
committee appointed by the board) of Asia Online of a resolution
approving the purchase of the Sale Shares and the subscription of
the Subscription Shares by the Purchaser pursuant to the terms of
this Agreement and the approval of the Shareholders' Agreements
contemplated in this Agreement;
(b) the capitalisation of the Shareholder's Loan in the amount of
RM360,000 and the completion of the subscription of the Vendor
Subscription Shares by the Vendor and the increase in the authorised
capital of the Company to RM3 million divided into 3,000,000
ordinary shares of RM1.00 each;
(c) the Vendor's Disclosure Letter and the Company's Disclosure Letter
to be delivered to the Purchaser on the Completion Date being in
form and substance satisfactory to the Purchaser;
(d) the Warranties remaining true and not misleading in any respect at
Completion, as if repeated at Completion and at all times between
the date of this Agreement and Completion;
(e) the Vendor and the Company having performed all of the covenants and
agreements required to be performed or caused to be performed by
each of them under this Agreement on or before the Completion Date;
(f) the Company or its officers supplying or the Vendor procuring the
Company or its officers to supply to the Purchaser, all of the
information (in such detail as may be satisfactory to the Purchaser)
requested by the Purchaser, the Purchaser's Solicitors or the
Purchaser's Accountants from time to time before the Completion
Date;
(g) all other consents and approvals (save for Foreign Investment
Committee approval) required under any and all applicable laws for
the sale and purchase of the Sale Shares and the subscription of the
Subscription Shares and to give effect to the transactions
contemplated hereunder being obtained;
(h) the Tenancy Agreement, the Employment Contracts, the Subcontract and
the Services Agreement being duly executed by the respective parties
in form and substance satisfactory to each of the parties thereto;
(i) the Company submitting or the Vendor procuring the Company to submit
an application to the relevant authority for the relevant licences
under the Communications and Multimedia Act in order to lawfully
conduct the activities which it currently carries out or which it
proposes to carry out in the future; and
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(j) the Vendor submitting its Value Added Network Services Licence for
registration with the relevant authority under the Communications
and Multimedia Act.
4.2 The Purchaser may, at its sole discretion, waive all or any of such
conditions at any time by notice in writing to the Vendor's Solicitors.
4.3 The Vendor shall use all its best endeavours to ensure that the conditions
set out in Clause 4.1 shall be fulfilled by the Cut-Off Date. If any of
the conditions stated in Clause 4.1 shall not be fulfilled or waived by
the Purchaser on or before the Cut-Off Date or such other date as the
parties shall mutually agree, the Purchaser shall be entitled at its sole
discretion to terminate this Agreement whereupon this Agreement shall
cease to be of any further effect except save for Clauses 1, 12, 13, 14,
and 15 which shall remain in full force and effect and save in respect of
claims for costs, damages, compensation or otherwise arising out of any
antecedent breach of the terms in this Agreement including the undertaking
contained in this Clause 4.3.
5. COMPLETION
5.1 Subject to the provisions of Clause 4, Completion shall take place at the
offices of the Purchaser's Solicitors at 9.00am on the Completion Date or
at such other place and time as shall be mutually agreed, where all (and
not some only) of the events described in this Clause 5 shall occur.
5.2 At Completion, the Vendor shall deliver or cause to be delivered to the
Purchaser:
(a) duly executed instrument of transfer in respect of the Sale Shares
in favour of the Purchaser (or its nominees) accompanied by the
relevant share certificates in respect of the Sale Shares;
(b) certified true copies of the resolutions passed by the board of
directors of the Vendor in the form set out in Appendix K;
(i) approving the sale of the Sale Shares to the Purchaser in the
terms set out in this Agreement; and
(ii) authorising the execution of the instrument of transfer in
respect of the Sale Shares in favour of the Purchaser and
giving authority to execute the instrument of transfer on
behalf of the Vendor to the party who executed it; and
(iii) authorising the execution and delivery by the Vendor of each
of this Agreement, the Tenancy Agreement, the Employment
Contracts, the Subcontract, the Services Agreement, the
Shareholders' Agreement and the Deed of Indemnity;
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(c) certified true copies of the resolutions in the form set out in
Appendix J passed by the board of directors of the Company:
(i) approving the transfer of the Sale Shares to the Purchaser, or
the transfer of all or any part of the Sale Shares to a
nominee appointed by the Purchaser;
(ii) approving the entering in the register of members of the
Company, the name of the Purchaser or that of its nominee as
holder of the Sale Shares, upon the presentation of the
instrument of transfer duly stamped in accordance with the
Stamp Act; and
(iii) authorising the issue of the new share certificate in respect
of the Sale Shares in favour of the Purchaser or such nominee
of the Purchaser and the cancellation of the existing share
certificates for the Sale Shares.
(d) a duly completed and executed Stamp Duty Form - PDS 6 together with
the Audited Accounts of the Company;
(e) such waivers or consents or other documents as may be required to
give to the Purchaser good title to the Sale Shares and to enable
the Purchaser or its nominees to be registered as the holders of any
of the Sale Shares;
(f) all the statutory and other books and records (including financial
records) duly written and updated of the Company and their
respective certificate(s) of incorporation, current business
registration certificate(s) (if applicable) and common seal(s) and
any other papers, records and documents of the Company;
(g) deeds executed by the Vendor confirming that the Vendor has no claim
against the Company and if there are any claims that the Vendor
shall release and disclaim all their rights to such claims, which
letter shall be in the form set out in Appendix B;
(h) execute and deliver to the Purchaser a certificate (the "Vendor's
Completion Certificate") which shall be in the form set out in
Appendix P, setting forth the Vendor's representations and
warranties that:
(i) each of the Warranties in Schedule 6 was accurate in all
respects as of the date of this Agreement;
(ii) each of the Warranties in Schedule 6 is accurate in all
respects as of the Completion Date as if made on the
Completion Date;
(iii) each of the covenants and obligations that the Vendor is
required to have complied with or performed pursuant to this
Agreement at or prior to Completion has been duly complied
with and performed in all respects;
(iv) each of the conditions set forth in Clause 4.1 has been
satisfied in all respects; and
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(v) the Vendor is not aware of any matter or thing which is in
breach of or inconsistent with any of the Warranties in
Schedule 6;
(i) the Deed of Indemnity duly executed by the Vendor;
(j) the Tenancy Agreement duly executed by the Vendor and the Company;
(k) the Employment Contracts duly executed by the Company and each of
the Key Employees;
(l) the Subcontract duly executed by the Company and the Vendor;
(m) the Services Agreement duly executed by the Company and the Vendor;
and
(n) cause such persons as the Purchaser may nominate to be validly
appointed as directors of the Company and upon such appointment
forthwith cause the Directors other than the Continuing Directors
and the company secretary of the Company to resign from their
respective offices, each delivering to the Purchaser a letter
addressed to the Company acknowledging that the person so resigning
has no claim outstanding for compensation or otherwise against the
Company, and if there are any claims, that they shall release and
disclaim all their rights to such claims, which letter shall be in
the form set out in Appendix A; and
(o) evidence that the Vendor has procured the revocation of all
authorities to the bankers of the Company relating to bank accounts
and procure the giving of authority to such persons as the Purchaser
may nominate to operate the same;
(p) a document signed by the Vendor confirming that at Completion the
Vendor has been repaid or has discharged in full all Shareholder's
Loan owed by the Company to the Vendor or vice versa.
5.3 At Completion, and upon compliance with the provisions set out in Clauses
2.2 and 5.2, the Purchaser shall:
(a) deliver to the Company:
(i) an unconditional application in writing for the allotment to
the Purchaser of 191,025 Shares at the premium of
approximately RM54.55 per share for a total amount of the
Subscription Share Consideration, in the form set out in
Appendix L; and
(ii) part of the Subscription Shares Consideration in the amount
stated in Clause 3.3 of this Agreement in favour of the
Company (whose receipt shall be an absolute discharge
therefor) either by bankers' draft or by telegraphic transfer
into the designated bank account of the Company,
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which shall be agreed between the Purchaser and the Vendor not
less than four (4) business days prior to Completion (at the
option of the Purchaser); and
(b) deliver to the Vendor:
(i) payment of the Sale Shares Consideration in favour of the
Vendor (whose receipt shall be an absolute discharge therefor)
either by a bankers' draft or by telegraphic transfer to the
bank account of the Vendor which shall be notified by the
Vendor to the Purchaser not less than four (4) business days
prior to Completion (at the option of the Purchaser); and
(ii) certified true copies of the resolution of the board of
directors of the Purchaser approving the purchase of the Sale
Shares and the subscription of the Subscription Shares
pursuant to the terms of this Agreement, in the form set out
in Appendix M.
5.4 At Completion, the Vendor shall cause to be delivered and the Company
shall deliver or cause to be delivered to the Purchaser:
(a) evidence satisfactory to the Purchaser's Solicitors of the
satisfaction of the conditions specified in Clause 4.1 above
including, without limitation, the execution by the Company of the
Tenancy Agreement, the Employment Contracts, the Subcontract and the
Services Agreement;
(b) certified true copies of the resolutions passed by the board of
directors of the Company, in the form set out in Appendix N:
(i) approving and authorising the allotment and issue of
Subscription Shares to the Purchaser or its nominee;
(ii) authorising the issue of the new share certificates in respect
of the Subscription Shares in favour of the Purchaser or its
nominee;
(iii) approving the entering in the register of members of the
Company, the name of the Purchaser or its nominee as holder of
the Subscription Shares;
(iv) authorising the execution and delivery by the Company of each
of this Agreement, the Tenancy Agreement, the Employment
Contracts, the Subcontract, the Services Agreement and the
Shareholders' Agreement;
(v) authorising and approving the appointment of the persons
nominated by the Purchaser as directors and secretary of the
Company with effect from the Completion Date;
(vi) accepting the resignations of the outgoing Directors and the
company secretary;
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(vii) revocation of the existing instructions to the bankers of the
Company relating to bank accounts and the approval of new bank
signatories to such accounts and the approval of the new
instructions in relation to the operations of such bank
accounts.
(c) certified true copies of the ordinary resolutions passed by the
shareholders of the Company in general meeting, in the form set out
in Appendix O:
(i) approving and authorising the allotment and issue of the
Subscription Shares to the Purchaser on the terms set out in
this Agreement and authorising the Directors to allot and
issue the same; and
(ii) authorising the execution and delivery by the Company of this
Agreement;
(d) the original share certificate(s) with the Purchaser or its nominee
registered as the holder for the Subscription Shares subscribed by
the Purchaser pursuant to Clause 2.1(c);
(e) such other documents as may be required to give to the Purchaser
good title to the Subscription Shares and to enable the Purchaser to
become the registered holder thereof; and
(f) a written confirmation in the form set out in Appendix Q, (the
"Company's Completion Certificate") , setting forth the Company's
representations and warranties that:
(i) each of the Warranties in Schedule 7 was accurate in all
respects as of the date of this Agreement;
(ii) each of the Warranties in Schedule 7 is accurate in all
respects as of the Completion Date as if made on the
Completion Date;
(iii) the Company is not aware of any matter or thing which is in
breach of or inconsistent with any of the Warranties in
Schedule 7.
5.5 At Completion, the Parties shall execute and deliver to each other
counterpart copies of the Shareholders' Agreement duly executed by each
respective party. The Vendor shall procure the execution and delivery of
the Shareholders' Agreement by the Company.
5.6 Without prejudice to any other remedies available to the Purchaser, if in
any respect the provisions of Clauses 5.2 and 5.4 are not complied with by
the Vendor or the Company (as the case may be) on the Completion Date the
Purchaser may:
(a) 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
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(b) proceed to Completion so far as practicable (without prejudice to
its rights in this Agreement); or
(c) rescind this Agreement.
6. VENDOR'S AND COMPANY'S OBLIGATIONS AND UNDERTAKINGS
6.1 The Vendor shall ensure that during the Pre-Completion Period:
(a) none of the Sale Shares are sold or otherwise transferred, or
offered for sale, and thus no agreement or commitment is entered
into (in writing or otherwise) to sell or otherwise transfer, any of
the Sale Shares or any interest in or right relating thereto;
(b) it does not permit, offer, agree or commit (in writing or otherwise)
to permit, any of the Sale Shares to become subject, directly or
indirectly, to any Encumbrance; and
(c) enter into any transaction to take any action that might cause or
constitute a breach of any of the Warranties made by the Company in
this Agreement.
6.2 The Vendor shall procure and the Company undertakes that during the
Pre-Completion Period, the Company shall:
(a) conduct its operations exclusively in the ordinary course of
business and operate the business of the Company in a manner
consistent with past practices.
(b) preserve intact its current business organisation, maintain its
relations and goodwill with all suppliers, customers, landlords,
creditors, licensors, licensees, employees and other persons having
business relationships with the Company;
(c) procure that its officers confer regularly with the Purchaser
concerning operational matters and otherwise report regularly to the
Purchaser concerning the status of the Company's business condition,
assets, liabilities, operations, financial performance and
prospects; and
(d) immediately notify the Purchaser of any inquiry, proposal or offer
from any person relation any acquisition transaction.
6.3 The Vendor shall procure and the Company undertakes that during the
Pre-Completion Period, the Company shall not, without the prior written
consent of the Purchaser:
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(a) enter into or vary any contract nor assume any liability which is
outside the ordinary or proper course of its business or which is
long term, unusual or onerous;
(b) make any capital expenditure or enter into any capital commitment in
a sum in excess of RM30,000 (whether by way of purchase, lease, hire
purchase or otherwise);
(c) make any change in the nature, scope or organisation of its business
nor dispose of the whole of its undertaking or property or a
substantial part thereof;
(d) acquire or form any subsidiary nor acquire any shares in any company
nor acquire the whole or any substantial part of the undertaking,
assets or business of any other company or any firm or person or
enter into any joint venture or partnership with any other person;
(e) make any loans or grant any credit (other than credit given in the
normal course of trading and advances made to employees against
expenses incurred by them on its behalf);
(f) borrow any money (except borrowings from its bankers not exceeding
RM100,000 or make any payments out of or drawings on its bank
accounts (except routine payments in the ordinary course of
business);
(g) enter into any guarantee, indemnity or surety;
(h) make any changes in the terms of employment of any of its employees
or in any arrangements with its consultants or directors or officer,
including any change to the amount of salary, wage, commissions,
fringe benefits or other compensation or remuneration payable to
such consultants, directors, officers or employees;
(i) acquire or dispose of or grant any option or right of pre-emption in
respect of any material asset or any interest nor give nor receive
any service otherwise than at market value;
(j) enter into any leasing, hire purchase agreement or any agreement or
arrangements for payment on deferred terms;
(k) grant or enter into any licence, franchise or other agreement or
arrangement concerning any part of its name, trading names or
know-how;
(l) declare, make or pay any dividend or distribution in respect of any
Share;
(m) sell or otherwise issue any shares or other securities;
(n) incur or pay any management charges other than in accordance with
the Services Agreement;
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(o) change any of its methods of accounting or accounting practices in
any respect;
(p) enter into any transaction to take any action that might cause or
constitute a breach of any of the Warranties made by the Company in
this Agreement; and
(q) make any payments to the Vendor other than payments which the
Company is obligated to make pursuant to the Subcontract, the
Services Agreement and the Tenancy Agreement in the event that such
agreements give rise to binding legal obligations to make payments
to the Vendor prior to Completion.
6.4 The Vendor and the Company undertake to the Purchaser that the Company
shall be free of any debt or liability of any nature whatsoever (whether
actual, contingent or otherwise) save for those incurred in the normal
course of business as at the Completion Date and the Vendor shall cause
all indebtedness and its Shareholders' Loan to the Company to be
discharged and paid in full prior to Completion.
7. RESTRICTIONS ON THE VENDOR
7.1 The Vendor hereby undertakes with the Purchaser (with the intent that the
obligations set out hereunder shall continue to have full force and effect
notwithstanding Completion) that except with the consent in writing of the
Purchaser:
(a) for the period of 12 months after Completion it shall not either on
its 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 anywhere in Malaysia a
Competing Business (other than as a holder of not more than five per
cent (5%) of the issued shares or debentures of any company listed
on any recognized stock exchange);
(b) for the period of 12 months after Completion it shall not either on
its own account or in conjunction with or on behalf of any other
person, firm or company canvass, solicit or entice away or attempt
to canvass, solicit or entice away from the Company the custom of
any person, firm, company or organization who shall at Completion or
any time within 1 year prior to the Completion have been or was a
customer, client, identified prospective customer or client,
representative, agent or correspondent of the Company or in the
habit of dealing with the Company or enter into any contract with or
accept any business from any such person, firm, company or
organization;
(c) for the period of 24 months after Completion it will not, either on
its own account or in conjunction with or on behalf of any other
person, firm or company employ, solicit or entice away or attempt to
employ, solicit or entice away from the Company any person who is at
the date hereof or who shall have been at the date of or within 1
year prior to any purported breach of this Clause 7.1(c) an officer,
manager, consultant or employee of the Company whether or not such
person would commit a breach of contract by reason of leaving such
employment;
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(d) it will not at any time hereafter make use of or disclose or divulge
to any person (other than to officers or employees of the Company
whose province it is to know the same) any Confidential Information
and any other information relating to the Company (other than any
information properly available to the public or disclosed or
divulged pursuant to an order of a court of competent jurisdiction)
and and shall use its best endeavours to prevent the publication or
disclosure of any such information;
(e) it will not at any time hereafter in relation to any trade, business
or company use a name including the word "Asia Online" or any
similar word in such a way as to be capable of or likely to be
confused with the name of the Company and shall use all reasonable
endeavours to procure that no such name shall be used by any person,
firm or company with which it is connected;
(f) it will procure that its subsidiaries, holding company and any other
affiliated companies will observe the restrictions contained in the
foregoing provisions of this Clause 7.1 and that its employees will
observe the restrictions contained in Clause 7.1(d); and
(g) it will not, for a period of 18 months after the Completion, utilise
the Value Added Network Services Licence either on its own or in
conjunction, collaboration or association with any third party
either for its own benefit or the benefit of any of its or its
subsidiaries' or associated companies' without the prior written
consent of the Purchaser and that it shall endeavour with the
Purchaser to arrive at a mutually satisfactory means of utilising
the Value Added Network Services Licence in conjunction,
collaboration or association with the Purchaser.
7.2 Without derogation from the obligations of the Vendor pursuant to the
provision in Clause 7.1(a) and (b) above, the Vendor shall, for a period
of 12 months after Completion offer to the Company a first right of
refusal to provide any internet related services which the Vendor or its
Subsidiaries or Related Corporation may require at fair market rates for
such services. The Vendor shall give notice to the Company in writing
stating the Vendor's or its Subsidiaries' or Related Corporation's
requirements for any such internet related services and evidence of other
market rates which the Vendor or its Subsidiaries or Related Corporation
may be able to obtain for such services. The Company shall have a period
of 14 days from the date of receipt of such notice to determine whether to
provide such services to the Vendor or its Subsidiaries or Related
Corporation (as the case may be) at the market rates indicated in such
notice.
7.3 The Vendors acknowledge that:
(a) the covenants given in Clause 7.1 are material to the Purchaser's
decision to enter into this Agreement; and
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(b) the restraints contained in Clause 7.1 are:
(i) fair and reasonable regarding the subject matter, area and
duration; and
(ii) reasonably required by the Purchaser to protect the business,
financial and proprietary interests of the Company.
7.3 Each and every obligation under this Clause shall be treated as a separate
independent obligation and shall be severally enforceable as such and in
the event of any obligation or obligations being or becoming unenforceable
in whole or in part such part or parts as are unenforceable shall be
deemed, 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 or modified to the minimum extent necessary to make this Agreement
or that Clause or part enforceable.
7.4 While the restrictions contained in this Clause are considered by the
parties to be reasonable in all the circumstances it is recognized that
restrictions of the nature in question may fail for reasons unforeseen 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 Company or 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. TERMINATION
8.1 This Agreement may be terminated prior to Completion:
(a) by the Purchaser if (i) there is a material breach of any covenant
or obligation of any of the Vendor or the Company or (ii) the
Purchaser reasonably determines that the timely satisfaction of any
condition set forth in Clause 4.1 has become impossible or
impractical (other than as a result of any failure on the part of
the Purchaser to comply with or perform its covenants and
obligations under this Agreement);
(b) by the Vendor if there is a material breach of any covenant or
obligation of the Purchaser;
(c) by the Purchaser at or after Cut-Off Date if any condition set forth
in Clause 4.1 has not been satisfied by the Cut-Off Date (other than
as a result of the failure on the part of the Purchaser to comply
with or perform any covenant or obligation set out in this
Agreement); or
(d) by mutual consent of the Parties.
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8.2 If a Party wishes to terminate this Agreement, the Party shall deliver to
the other Parties a written notice stating that the Party is terminating
this Agreement and setting forth a brief description of the basis on which
the Party is terminating this Agreement and the provision of this
Agreement pursuant to which this termination is made.
8.3 If this Agreement is terminated pursuant to Clause 8.2, all further
obligations of the Parties under this Agreement shall terminate, provided
however, that:
(a) no Party shall be relieved of any obligation or other liability
arising from any antecedent breach(es) by such party of any
provision of this Agreement;
(b) the Vendor and the Company shall, in all events, remain bound by and
continue to be subject to Clauses 1, 12, 13, 14, and 15.
8.4 The termination rights provided in Clause 8.1 shall not be deemed to be
exclusive. Accordingly, the exercise by any Party of its right to
terminate this Agreement pursuant to Clause 8.1 shall not be deemed to be
an election of remedies and shall not be deemed to prejudice, or to
constitute or operate as a waiver of, any other right or remedy that such
Party may be entitled to exercise (whether under this Agreement, under any
other contract, under any statute, at common law, in equity or otherwise).
9. VENDOR'S REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
9.1 The Vendor hereby represents, warrants and undertakes to the Purchaser
(with the intent that the provisions of this Clause shall continue to have
full force and effect notwithstanding Completion) in the terms set out in
Schedule 6 and that each of the statements set out in Schedule 6 is now
true and accurate and acknowledges that the Purchaser in entering into
this Agreement, is relying on the Warranties set out in Schedule 6 and
that the Purchaser shall be entitled to treat the same as conditions of
this Agreement.
9.2 The Vendor further 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 Completion) that:
(a) all Warranties contained in Schedule 6 will be fulfilled and will be
true and correct at Completion in all respects as if they had been
entered into afresh at Completion; and
(b) in relation to any Warranty in Schedule 6 which refers to the
knowledge, information or belief of the Vendor, that the Vendor has
made all necessary enquiry into the subject matter of that Warranty.
9.3 The Warranties in Schedule 6 are given subject to the matters fully,
fairly and specifically disclosed in the Vendor's Disclosure Letter but no
other information relating to the Company of which the Purchaser has
knowledge (actual or
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constructive) and no investigation by or on behalf of the Purchaser shall
prejudice any claim made by the Purchaser under such representations,
warranties and undertakings or under the indemnity contained in Clause 9.7
or the Deed of Indemnity or operate to reduce any amount recoverable and it
shall not be a defense to any claim against the Vendor that the Purchaser
knew or ought to have known or had constructive knowledge of any
information (other than as disclosed in the Vendor's Disclosure Letter)
relating to the circumstances giving rise to such claim.
9.4 Each Warranty in Schedule 6 shall be separate and independent and save as
expressly provided shall not be limited by reference to any other
paragraph or anything in this Agreement or the Schedules.
9.5 The Warranties in Schedule 6 shall be deemed to be repeated as at
Completion as if all references therein to the date of this Agreement were
references to the Completion Date.
9.6 In the event of it being found prior to Completion that any of the
Warranties in Schedule 6 is untrue, misleading or incorrect or have not
been fully carried out in any material respect, or in the event of any
matter or thing arising or becoming known or being notified to the
Purchaser which is inconsistent with any such Warranty or any other
provision of this Agreement or in the event of the Vendor becoming unable
or failing to do anything required to be done by them at or before
Completion the Purchaser shall not be bound to complete the purchase of
the Sale Shares and the Purchaser may by notice rescind this Agreement
without liability on its part. The right conferred upon the Purchaser by
this Clause is in addition to and without prejudice to any other rights of
the Purchaser (including any rights to claim damages or compensation from
the Vendor by reason of any such breach or non-fulfillment) and failure to
exercise it shall not constitute a waiver of any such rights.
9.7 The Vendor hereby undertakes to indemnify and keep indemnified the
Purchaser (for itself and as trustee for the Company) against any loss or
liability suffered by the Purchaser or the Company as a result of or in
connection with any breach of any of the Warranties in Schedule 6
including, but not limited to, any diminution in the value of the assets
of and any payment made or required to be made by the Purchaser or the
Company and any costs and expenses incurred as a result of such breach
provided that the indemnity contained in this Clause shall be without
prejudice to any other rights and remedies of the Purchaser in relation to
any such breach of Warranty and all such other rights and remedies are
hereby expressly reserved to the Purchaser.
9.8 The Vendor will, both before and after Completion promptly notify the
Purchaser in writing of any matter or thing of which the Vendor becomes
aware which is a breach of or inconsistent with any of the Warranties
contained in Schedule 6.
9.9 Any amount paid to the Purchaser by the Vendor as damages or compensation
for any loss or liability suffered by the Purchaser or the Company in
connection with any of the Warranties in Schedule 6 or under any indemnity
herein or contained in the Deed of Indemnity shall be deemed to be a
repayment of part of the Consideration which shall be deemed to have been
reduced accordingly.
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9.10 The Vendor hereby warrants and undertakes that it shall procure the
Company to submit an application to the relevant authority for Multimedia
Super Corridor Status as soon as practicable after Completion.
10. COMPANY'S REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
10.1 The Company hereby represents, warrants and undertakes to the Purchaser
(with the intent that the provisions of this Clause shall continue to have
full force and effect notwithstanding Completion) in the terms set out in
Schedule 7 and that each of the statements set out in Schedule 7 is now
true and accurate and acknowledges that the Purchaser in entering into
this Agreement, is relying on the Warranties set out in Schedule 7 and
that the Purchaser shall be entitled to treat the same as conditions of
this Agreement.
10.2 The Company further 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 Completion) that:-
(a) all Warranties contained in Schedule 7 will be fulfilled and will be
true and correct at Completion in all respects as if they had been
entered into afresh at Completion; and
(b) in relation to any Warranty in Schedule 7 which refers to the
knowledge, information or belief of the Company has all necessary
enquiry into the subject matter of that Warranty.
10.3 The Warranties in Schedule 7 are given subject to the matters fully,
fairly and specifically disclosed in the Company's Disclosure Letter but
not other information relating to the Company 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 such
representations, warranties and undertakings or under the indemnity
contained in Clause 10.7 or operate to reduce any amount recoverable and
it shall not be a defense to any claim against the Company that the
Purchaser knew or ought to have known or had constructive knowledge of any
information (other than as disclosed in the Company's Disclosure Letter)
relating to the circumstances giving rise to such claim.
10.4 Each Warranty in Schedule 7 shall be separate and independent and save as
expressly provided shall not be limited by reference to any other
paragraph or anything in this Agreement or the Schedules.
10.5 The Warranties in Schedule 7 shall be deemed to be repeated as at
Completion as if all references therein to the date of this Agreement were
references to the Completion Date.
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10.6 In the event of it being found prior to Completion that any of the
Warranties in Schedule 7 is untrue, misleading or incorrect or have not
been fully carried out in any material respect, or in the event of any
matter or thing arising or becoming known or being notified to the
Purchaser which is inconsistent with any such Warranty or any other
provision of this Agreement or in the event of the Company becoming unable
or failing to do anything required to be done by them at or before
Completion the Purchaser shall not be bound to complete the subscription
of the Subscription Shares and the Purchaser may by notice rescind this
Agreement without liability on its part. The right conferred upon the
Purchaser by this Clause is in addition to and without prejudice to any
other rights of the Purchaser (including any rights to claim damages or
compensation from the Company by reason of any such breach or
non-fulfillment) and failure to exercise it shall not constitute a waiver
of any such rights.
10.7 The Company hereby undertakes to indemnify and keep indemnified the
Purchaser against any loss or liability suffered by the Purchaser as a
result of or in connection with any breach of any of the Warranties in
Schedule 7 including, but not limited to, any diminution in the value of
the assets of and any payment made or required to be made by the Purchaser
and any costs and expenses incurred as a result of such breach provided
that the indemnity contained in this Clause shall be without prejudice to
any other rights and remedies of the Purchaser in relation to any such
breach of Warranty and all such other rights and remedies are hereby
expressly reserved to the Purchaser.
10.8 The Company will, both before and after Completion promptly notify the
Purchaser in writing of any matter or thing of which the Company becomes
aware which is a breach of or inconsistent with any of the Warranties
contained in Schedule 7.
10.9 The Company hereby warrants and undertakes that it shall submit an
application to the relevant authority for Multimedia Super Corridor Status
as soon as practicable after Completion.
11. RESTRICTION ON ANNOUNCEMENTS
11.1 Each of the parties hereto undertakes that prior to Completion and
thereafter it will not (save as required by law or any rule of any
relevant stock exchange) make any announcement or disclosure in connection
with this Agreement unless the other Parties hereto shall have given their
respective consents to such announcement (which consents may not be
unreasonably withheld and may be given either generally or in a specific
case or cases and may be subject to conditions).
11.2 If the Vendor or the Company is required by law or by the rules of any
securities exchange to which they are subject to make any disclosure
regarding this Agreement and the transactions contemplated herein, the
Vendor shall advise the Purchaser and shall provide to the Purchaser a
proposed public announcement within respect to the transaction, at least
five (5) business days before making such disclosure and upon the Parties'
mutual agreement as to the announcement, the Vendor may proceed with such
disclosure.
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12. ACCESS TO INFORMATION
12.1 As from the date of this Agreement the Company shall give and the Vendor
shall procure that the Company gives the Purchaser and any persons
authorised by it all such information relating to the Company and such
access to the premises and all books, title deeds, records, accounts and
other documentation of the Company as the Purchaser may reasonably request
and be permitted to take copies of any such books, deeds, records,
accounts and other documentation and that the officers and employees of
the Company shall be instructed to give promptly all such information and
explanations to any such persons as aforesaid as may be requested by it or
them.
12.2 In the event of this Agreement ceasing to have effect the Purchaser
undertakes to release to the Company and to the Vendor all information and
documents concerning the Company which have been provided to the Purchaser
in connection with this Agreement and also undertakes not to use any such
information gained by it to further itself in its trade or to the
detriment of the Company unless such information had already been known to
the Purchaser or had become or subsequently becomes public knowledge
otherwise than by reason of any act or default of the Purchaser, its
advisers or employees.
13. CONFIDENTIAL INFORMATION
13.1 The Vendor and the Company undertake with the Purchaser that it shall each
treat as strictly confidential all Confidential Information received or
obtained by them or their employees, agents or advisers as a result of
entering into or performing this Agreement including information relating
to the existence and the terms 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 or and subject to the provisions of Clause 12.2 that it 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.
13.2 The restrictions contained in Clauses 13.1 shall not apply so as to
prevent the Vendor or the Company 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 or the
Company is subject or from making any disclosure to any professional
adviser for the purposes of obtaining advice (provided always that the
Vendor and the Company shall procure that the provisions of this Clause 13
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 13 by the Vendor
or the Company.
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14. GENERAL
14.1 Each party to this Agreement shall pay its own costs and disbursements of
and incidental to the negotiation leading to the entering into of this
Agreement and all other agreements contemplated under this Agreement and
the preparation, execution and performance of such agreements. All stamp
duties assessed or assessable on the transfer of the Sale Shares to the
Purchaser shall be borne by the Purchaser.
14.2 Each notice, demand or other communication given or made under this
Agreement shall be in writing and delivered or sent to the relevant party
at its address (by hand, by registered mail, by courier or express
delivery service) or fax number (by facsimile) set out below (or such
other address or fax number as the addressee has by five (5) days' prior
written notice specified to the other parties):
To the Purchaser: Asia Online Internet Services Sdn. Bhd.
c/o Asia Online Limited
16/F One International Finance Centre
No. 1 Harbour View Street
Central, Hong Kong
Fax Number: 852 2882 4468
Attention: Mr. Edward Roberto
To the Vendor: Utusan Melayu (Malaysia) Berhad
Level 7, Menara PGRM,
No 8, Jalan Pudu, Cheras,
56100 Kuala Lumpur, Malaysia
Fax Number: 603 - 982 6652
Attention: Mr. Azizi Meor Ngah
To the Company: Utusan Multimedia Sdn. Bhd.
No. 11, Ground Floor, The Right Angle
Jalan 14/22, 46100 Petaling Jaya
Selangor Darul Ehsan
Fax Number: 603 - 757 2777
Attention : Mr. Felix Miller
Any notice, demand or other communication so addressed to the relevant
party shall be deemed to have been delivered (a) if given or made by
letter, when actually delivered to the relevant address; and (b) if given
or made by fax, when despatched.
14.3 No failure or delay by the Purchaser in exercising any right, power or
remedy under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of the same preclude any further exercise
thereof or the exercise of any other right, power or remedy. Without
limiting the foregoing, no waiver by the Purchaser of any breach by the
Vendor or Company of any provision hereof shall be deemed to be
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a waiver of any subsequent breach of that or any other provision hereof.
If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect, the legality, validity and
enforceability of the remaining provisions of this Agreement shall not be
affected or impaired thereby.
14.4 This Agreement shall not be assignable by the Vendor or the Company. The
Purchaser shall be freely permitted to assign any or all of its rights
under this Agreement, in whole or in part, to any other person without
obtaining the consent or approval of any other Party hereto or of any
person and shall be freely permitted to nominate a Related Corporation to
purchase the Sale Shares and/or subscribe for the Subscription Shares in
accordance with the provisions of this Agreement.
14.5 This Agreement (together with any documents referred to herein)
constitutes the whole agreement between the parties and supersedes any
previous agreements or arrangements between them relating to the subject
matter of this Agreement and it is expressly declared that no variations
of this Agreement shall be effective unless made in writing and executed
by the parties.
14.6 The provisions of this Agreement including the representations, warranties
and undertakings herein contained, insofar as the same shall not have been
fully performed at Completion, shall remain in full force and effect
notwithstanding Completion.
14.7 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, void,
invalid or unenforceable to any extent, such invalidity or
unenforceability shall not affect the remainder of this Agreement and the
other provisions or parts of such provisions of this Agreement, all of
which shall continue to be valid and enforceable and shall remain in full
force and effect to the fullest extent permitted by law.
14.8 The rights and remedies of the Parties hereto shall be cumulative (and not
alternative). The Vendor agree that:
(a) 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;
(b) in the event of any breach or threatened breach by the Vendor of any
covenant, obligation or other provision set forth in this Agreement,
the Purchaser shall be entitled (in addition to any other remedy
available to it) to :
(i) an order of specific performance to enforce the observance and
performance of such covenant, obligation or other provision,
and
(ii) an injunction restraining such breach or threatened breach.
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14.9 Upon and after Completion the Vendor and the Company 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 things
the Vendor shall as from Completion hold the legal estate in the Sale
Shares in trust for the Purchaser.
14.10 All agreements, resolutions and documents of whatever nature to be
provided by any of the Parties under this Agreement shall be in the
English Language and the English Language version of any such agreements,
resolutions and documents shall prevail over any other versions of such
documents which may be made under any other languages.
15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Malaysia.
16. ARBITRATION
16.1 The parties agree that any dispute arising out of or in connection with
this Agreement, including any question regarding its existence, validity
or termination, shall be referred to and finally resolved by arbitration
in Malaysia in accordance with the UNCITRAL Rules which are deemed to be
incorporated by reference into this clause.
16.2 The arbitral tribunal shall consist of three (3) arbitrators, one to be
appointed by each of the parties.
16.3 The language of the arbitration shall be English.
16.4 Notwithstanding Clauses 16.1 to 16.3, any party may bring an action:
(a) for injunctive or other similar mandatory or prohibitory relief in
any court of competent jurisdiction; and
(b) for any interlocutory or interim relief, including, without
limitation, any proceedings for the detention, custody or
preservation of any property,
pending the results of the arbitration.
17. COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of which
taken together shall constitute one and the same instrument. Any party may
enter into this Agreement by signing any such counterpart and each
counterpart may be signed and
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executed by the parties and transmitted by facsimile transmission and shall
be as valid and effectual as if executed as an original.
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IN WITNESS WHEREOF this Agreement has been executed on the day and year first
above written.
The Purchaser
SIGNED BY Kevin H. Randolph )
for and on behalf of )
ASIA ONLINE INTERNET )
SERVICES SDN. BHD. )
in the presence of: ) /s/ KEVIN H. RANDOLPH
--------------------------------
Edward P. Roberto /s/ EDWARD P. ROBERTO
--------------------------------
The Vendor
SIGNED BY Azizi Meor Ngah )
for and on behalf of )
UTUSAN MELAYU (MALAYSIA) )
BERHAD )
in the presence of: ) /s/ AZIZI MEOR NGAH
--------------------------------
/s/ KHAMARUL BAHARAIN SULAIMAN
- --------------------------------
Khamarul Baharain Sulaiman
The Company
SIGNED BY Azizi Meor Ngah )
for and on behalf of )
UTUSAN MULTIMEDIA SDN. BHD. )
in the presence of: ) /s/ AZIZI MEOR NGAH
--------------------------------
/s/ KHAMARUL BAHARAIN SULAIMAN
- --------------------------------
Khamarul Baharain Sulaiman
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