EXHIBIT 2.1
Dated the 11th day of September 2001
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AGREEMENT
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Messrs. Quan & Co.,
Solicitors,
1601-2, 16th Floor,
Hang Shing Building,
363-373 Nathan Road,
Kowloon, Hong Kong
Ref.: 0816/01/DQ
THIS AGREEMENT is made the 11th day of September, 2001 BETWEEN
(1) The person whose name and address are set out in the 1st Schedule hereto
(hereinafter called "the Vendor");
(2) The person whose name and address are set out in the 1st Schedule hereto
(hereinafter called "the Purchaser"); and
(3) All those persons who respective names and addresses are set out in the
1st
Schedule hereto (hereinafter collectively called "the Purchaser
Guarantors").
WHEREAS: -
(A) TOY CONCEPTS INTERNATIONAL LIMITED (hereinafter called "the Company") is
incorporated in Hong Kong (Certificate of Incorporation No.441231) as a
private company limited by shares with an authorized capital of
HK$1,000,000.00 divided into 1,000,000 shares of HK$1.00 each, of which
1,000,000 shares have been issued and fully paid up as at the date
hereof.
(B) The Vendor is the registered holder of the number of shares in the
Company as are set out opposite its name in the Ist Schedule which is
attached hereto (hereinafter called "the Sale Shares").
(C) The Vendor has agreed to sell and the Purchaser has agreed to purchase
the Sale Shares on the terms and conditions hereinafter mentioned.
NOW IT IS HEREBY AGREED as follows: -
1. Subject to the terms of this Agreement, the Vendor will sell and the
Purchaser will purchase the Sale Shares for a consideration of HONG KONG
DOLLARS NINE HUNDRED AND THIRTY SIX THOUSAND ONLY (HK$936,000.00)
together with all rights attached or accruing thereto as at the date of
completion and the said consideration shall be paid by the Purchaser to
the Vendor in the following manner: -
(i) a cashier order in the sum of HK$234,000.00 drawn in favor of the
Vendor shall be delivered to T.S. Tong & Co., Solicitors for the
Vendor (hereinafter called "the Vendor's Solicitors") as deposit
upon the signing of this Agreement; and
(ii) the balance of the said consideration for the Sale Shares being
HK$702,000.00 shall be paid to the Vendor by four installments by
way of four post-dated cheques drawn in favour of the Vendor and
particulars of the said post-dated cheques are set out in the 2nd
Schedule attached hereto.
2. Notwithstanding the aforesaid, the Purchaser agrees to deliver the four
post-dated cheques as mentioned in Clause I above to the Vendor's
Solicitors upon Completion. Besides, the Purchaser agrees that if the
Purchaser should make default in the payment of any of the said four
installments or any part thereof on the due date, the remaining balance
of the unpaid consideration shall immediately become due and payable and
the Vendor shall have the right to commence legal proceedings to recover
the said remaining balance of the unpaid consideration and other damages,
if any, without notice.
3. (a) Completion of the sale and purchase of the Sale Shares (hereinafter
called "Completion") shall take place on 12th September 2001
("Completion Date") at a place to be designated by the Vendor, or at
such date or place as may be mutually agreed by the parties hereto
when the following business will be simultaneously transacted: -
(i) The Vendor shall deliver to the Purchaser or Messrs. Quan &
Co., the Purchaser's solicitors (hereinafter called the
"Purchaser's Solicitors") the following: -
(1) instrument of transfer and contract notes in favour of the
Purchaser and/or its nominee in respect of the Sale Shares
all duly executed by the Vendor;
(2) original share certificate in respect of the Sale Shares.
(3) written resignations of Edward STEELE, John KLECHA and
Maria Alice HASKAMP CARQUEJA as directors of the Company
with immediate effect with acknowledgment that they have no
claim or right of action against the Company for
compensation for loss of office termination of employment
or otherwise;
(4) duly signed written resolutions of the Company to the
following effect: -
(aa) approving the transfer of the Sale Shares to the
Purchaser and/or its nominees and the registration of
the appropriate share transfer subject to the same
being duty stamped; and
(bb) appointing three persons as may be nominated by the
Purchaser as directors and approving the resignations
of the said Edward STEELE, John KLECHA and Maria
Alice HASKAMP CARQUEJA as directors of the Company.
(5) written instructions to the bankers of the Company to
change authorized signatories of the Company's bank
accounts, if any, and
(6) all the documents as set out in the 4th Schedule hereto.
4. (a) The Purchaser hereby acknowledges that the Vendor has advanced a sum
of HK$1,560,000.00 to the Company and the Purchaser agrees to repay
the said sum to the Vendor and the accrued interest by eleven
installments by way of eleven post-dated cheques drawn in favour of
the Vendor as set out in the 3rd Schedule which is attached hereto.
(b) The Purchaser agrees to deliver the eleven post-dated cheques as
mentioned in Clause 4(a) above to the Vendor's Solicitors upon
Completion. Besides, the Purchaser agrees that if the Purchaser
should make default in the payment of any of the said eleven
installments or any part thereof on the due date, the remaining
balance of the unpaid sum(s) and the unpaid accrued interest shall
immediately become due and payable and the Vendor shall have the
right to commence legal proceedings to recover the said balance of
the unpaid sum(s) and the unpaid accrued interest and other damages,
if any, without notice.
5. The Vendor warrants and undertakes to the Purchaser that the following
matters are true and accurate s at the date hereof and will remain true
and accurate as at Completion:- (a) The Sale Shares constitute 6/10 of
the issued share capital of the Company and there is no option, pre-
emption rights or other rights to acquire, and no mortgage, charge,
pledge, lien or other form of security or encumbrance on, over or
affecting the Sale Shares or any of them or any of the unissued share
capital of the Company (if any) and there is no agreement or commitment
to give or create any of the foregoing, and no claims have been made by
any person entitled or claiming to be entitled to any of the foregoing,
and the Vendor is the legitimate rightful and lawful owner of the Sale
Shares and is entitled to sell and transfer the Sale Shares and pass the
full legal and beneficial ownership thereof to the Purchaser without
encumbrances or charges on the term set out in this Agreement.
(b) All the information given in the recitals hereto is true and correct
in all respects.
6. (a) The Vendor hereby agrees that upon the compliance with all the terms
of this Agreement by the Purchaser, the Purchaser shall be entitled
to all the money receivable of contracts/sales orders made
prior to the 12th September 2001 and the Vendor shall not make any claim
arising therefrom. and the Purchaser shall also be entitled to all money
which are in the Company's bank account(s) as at the 12th September 2001.
(b) The Vendor undertakes with the Purchaser that its will hold the
Purchaser fully, and effectively indemnified and at all time keep it
fully and effectively indemnified by payment in cash on demand in
respect of any depletion in or reduction in value of the assets of
or any increase in the liabilities of or deprivation of any taxation
or other relief by the Company occasioned by or resulting from a
breach of any of the warranties, representations and undertakings
contained in this Agreement.
(c) The liability of the Vendor in respect of any breach of the
warranties and any terms and conditions of this Agreement shall be
limited as provided in the following sub-clauses of this Clause:-
(i) The Vendor shall be under no liability in respect of a breach
of any, of the warranties or any terms and conditions of this
Agreements unless it shall have received written notice from
the Purchaser prior to the lst anniversary of the date of this
Agreement giving details of the relevant claim and any such
claim shall (if not previously satisfied, settled or
withdrawn) be deemed to have been waived or withdrawn at the
expiration of one month after the Ist anniversary of the date
of this Agreement unless proceedings in respect thereof shall
then already have been commenced against the Vendor.
(ii) The aggregate liability of the Vendor in respect of any claim
for breach of any of the warranties or any terms and
conditions of this Agreement shall be limited to the
consideration as referred to in Clause 1 above actually
received by the Vendor hereunder.
7. (a) Each of the Purchaser Guarantors hereby guarantees, unconditionally
and irrevocably as primary obligor, to the Vendor the due observance
and performance by the Purchaser of all the agreements, obligations,
commitments and undertakings contained in this Agreement
("Purchaser's Guaranteed Obligations") on the part of the Purchaser
to be observed and performed and each of the Purchaser Guarantors
undertakes and agrees that he will indemnify the Vendor and keep the
Vendor fully indemnified on a full indemnity basis in respect of all
losses, costs, expenses and damage whatsoever which may be sustained
by the Vendor by reason of or in consequence of any failure of the
Purchaser
to carry out any such Purchaser's Guaranteed Obligations.
(b) The guarantee and indemnity provided by each of the Purchaser
Guarantors in this Clause 7 shall be a continuing guarantee and
indemnity and shall cover all Purchaser's Guaranteed Obligations
notwithstanding the liquidation, incapacity or any change in the
constitution of the Purchaser or any settlement of account or
variation or modification of this Agreement or any indulgence or
waiver given by any party hereto or other matter whatsoever until
the last claim whatsoever by the Vendor against the Purchaser has
been satisfied in full,
(c) Should any Purchaser's Guaranteed Obligations, which if valid or
enforceable would be the subject of the guarantee and indemnity in
this Clause 7, be or become wholly or in part invalid or
unenforceable against the Purchaser by reason of any defect in or
insufficiency or want of powers of the Purchaser or irregular or
improper purported exercise thereof or breach or want of authority
by any person purporting to act on behalf of the Purchaser or
because any of the rights have become barred by reason of any legal
limitation, disability, incapacity or any other fact or circumstance
whether or not always known to the Vendor, each of the Purchaser
Guarantors shall nevertheless be liable to the Vendor
notwithstanding the avoidance or invalidity of any term or condition
of this Agreement whatsoever including (without limitation)
avoidance under any enactment relating to liquidation in respect of
that Purchaser's Guaranteed Obligations as if the same were wholly
valid and enforceable.
(d) The guarantee and indemnity provided by each of he Purchaser
Guarantors in this Clause 7 may be enforced against him by the
Vendor at any time without first instituting legal proceedings
against the Purchaser in the first instance or joining in the
Purchaser as a party or parties in the same proceedings against him.
(e) The obligations and liability of the Purchaser Guatantors under this
Agreement shall be joint and several.
8. Notwithstanding anything contained in this Agreement to the contrary, the
Purchaser's obligations and the obligations of the Purchaser Guarantors
under this Agreement shall survive Completion and shall continue
thereafter in full force and effect until all such obligations have been
fulfilled.
9. As from the date of this Agreement up to the date of completion, if there
is any event which results or may result in the Vendor failing or
incapable to fulfill any of the representations or warranties contained
herein the Vendor must immediately inform the Purchaser of the same.
10. None of the parties hereto shall prior to the date of completion divulge
to any third parties (except to their respective professional advisers)
any information regarding the existence or subject matter of this
Agreement without the prior written agreement of the other parties such
agreement not to be unreasonably withheld.
11. If either party hereto shall desire to give to or serve on the other
party and/or the Directors and/or the legal personal representatives of
any such person any notice claim or demand hereunder or in connection
therewith, the same shall be sufficiently given or served if sent by post
to him at his address stated herein or last known to the party giving the
notice claim or demand.
12. Each party shall, be liable to pay their own legal cost in the
preparation approval and execution of this Agreement.
13. (a) The stamp duty payable on the bought and sold notes and instruments
of transfer executed in respect of the Sale Shares shall be borne
by the Purchaser.
(b) In the event that the Stamp Office requires any document(s),
account(s) and/or balance sheet(s) of the Company for the purpose of
assessing the amount of stamp duty payable, the expenses of
arranging for the production of such document(s), account(s) and/or
balance sheet(s) shall be borne by the Purchaser.
14. This Agreement is governed by and construed in accordance with the laws
of Hong Kong and each of the parties hereto agree to submit to the
non-exclusive jurisdiction of the courts of Hong Kong as regards any
claim or matter arising under this Agreement. IN WITNESS whereof the
parties hereto have executed this Agreement on the day and year first
above written.
THE 1st SCHEDULE ABOVE REFERRED TO
Name of Vendor Address Number of Sale Shares
- -------------- ------- ---------------------
INTERNATIONAL SMC 1, Unit 6, Mirror Tower, 600,000
(HK) LIMITED 61 Mody Road, Kowloon.
Hong Kong
Name of Purchaser Address Number of Sale Shares
- ---------------- ------- ---------------------
KINGSKY 721 Peninsula Centre, 600,000
TECHNOLOGY LIMITED 67 Mody Road, Kowloon,
Hong Kong
Name of Purchaser Guarantor Nationality Passport No. Address
- --------------------------- ----------- ----------- -------
(1) WU Sheng-SHI Taiwan M14536552 5&6 floor, 83 Shi-
Ning North Road,
Taipei
(2) Gerald PENN U.S.A. 11033228 1361 Broadway
Shi-B31 Hewlett,
NY 11557
(3) Robert Lawrence WITKIN U.S.A. 700832626 511 Burlington
Road Freehold,
NJ 07728
THE 2ND SCHEDULE ABOVE REFERRED TO
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Particulars of four post-dated cheques
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Date Amount
- ---- ------
30/09/2001 HK$234,000.00
31/10/2001 HK$156,000.00
30/11/2001 HK$156,000.00
30/12/2001 HK$156,000.00
THE 3RD SCHEDULE ABOVE REFERRED TO
Accrued Interest Total Sum
Date Loan Amount Repayable Repayable Repayable
- ---- -------------------- ---------------- ----------
31/8/2001 HK$234,000.00 HK$17,224.11 HK$251,224.11
30/9/2001 HK$312,000.00 HK$14,168.32 HK$326,168.32
31/10/2001 HK$78,000.00 HK$11,195.67 HK$89,195.67
30/11/2001 HK$78,000.00 HK$10,001.10 HK488,001.10
31/12/2001 HK$78,000.00 HK$9,473.26 HK$87,473.26
31/1/2002 HK$78,000.00 HK$8,612.05 HK$88,001.10
28/2/2002 HK$117,000.00 HK$7,000.77 HK$124,000.77
31/3/2002 HK$117,000.00 HK$6,459.04 HK$123,459.04
30/4/2002 HK$156,000.00 HK$5,000.55 HK$161,000.55
31/5/2002 HK$156,000.00 HK$3,444.82 HK$159,444.82
30/6/2002 HK$156,000.00 HK$1,666.85 HK$157,666.85
--------------- ------------ ---------------
HK$1,560,000.00 HK$94,246.54 HK$1,654,246.54
THE 4TH SCHEDULE ABOVE REFERRED TO
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1. A Green Box;
2. A statutory book with registers of Directors, Secretaries, Members,
Transfers and Charges and Minutes of Directors' and Members' meetings;
3. Certificate of Incorporation ion name of E-Fair Industrial Limited (
Written in Chinese - unable to type in);
4. Certificate of Incorporation on Change of Name in name of Toy Concept
International Limited (Written Chinese - unable to type in);
5. 16 copies of Memorandum and Articles of Association;
6. An expired Business Registration Certificate for the year 1993/1994;
7. Share Certificate book with 9 duly cancelled share certificates nos. 1 to 9
and 18 blank share certificates;
8. Directors' Report and Financial Statements for the years ended 31st March
2000 and 2001;
9. Common Seal in name of E-Fair Industrial Limited;
10. Company Chop in name of E-Fair Industrial Limited;
11. Declaration of Trust dated 17th April 2001 executed by Mr. Ip Chi Hung in
favour of Robert Lawrence Witkin;
12. Letter of Wishes; and
13. Letter of Indemnity dated 17th April 2001.
SEALED with the COMMON SEAL of )
KINGSKY TECHNOLOGY LIMITED )
and signed by Mr. Wu Sheng-Shi, ) /S/ Wu Sheng-Shi
its Director - - - - - - - - - )
in the presence of:- )
Derek B.K. Quan
Solicitor HKSAR
)
SIGNED, SEALED and DELIVERED by )
WU Sheng-Shi (holder of Taiwanese ) /S/ Wu Sheng-Shi
Passport No. M14536552 in the )
presence of:- )
Derek B.K. Quan
Solicitor HKSAR
)
SIGNED, SEALED and DELIVERED by )
Gerald PENN (holder of U.S.A. ) /S/ Gerald Penn
Passport No. 111033228 in the )
presence of:- )
Derek B.K. Quan
Solicitor HKSAR
)
SIGNED, SEALED and DELIVERED by )
Robert Lawrence WITKIN (holder of ) /S/ Robert Lawrence Witkin
U.S.A. Passport No. 700832626 )
in the presence of:- )
/S/ William H. Passaic
Notary Public of New Jersey
My commission Expires February 9, 2006
SEALED with the COMMON SEAL of )
INTERNATIONAL SMC (HK) )
LIMITED and signed by Maria Alice )
HASKAMP CARQUEJA, a director in )
the presence of:- )
/S/ Iu Ting Kwok
Solicitor
T.S. Tong & Co.
Hong Kong SAR
RECEIVED on the day and year first above )
)
written of and from the Purchaser the sum of )
)
HK$234,000.00 being deposit (as referred to in )
)
Clause 1(i) above) paid by the Purchaser to the )
)
Vendor. )