Exhibit 10.18
Confidential Treatment Requested indicates
portions of this document have been redacted
and have been separately filed with the Commission
Dated 21st day of October 1998
ROBERT ALBERT SMEATON
RAYMOND CHIH CHUNG KWONG
collectively as Vendors
and
GENEVA INVESTMENT HOLDINGS LIMITED
as Purchaser
-----------------------------------------
AGREEMENT
relating to
the sale and purchase of 70% of
the entire issued share capital of
**
------------------------------------------
EDE CHARLTON
13/F Wing On Centre
111 Connaught Road
Central
Hong Kong
Tel: 852 2905 7888
Fax: 852 2854 9596
(Ref: C/ECC193.01/GN/NT)
** CONFIDENTIAL TREATMENT REQUESTED
THIS AGREEMENT is made on 21st day of October, 1998
BETWEEN:
(1) ROBERT ALBERT SMEATON of Blocks C-D, 2nd Floor, G. Lee Industrial
Building, 77-81 Chai Wan Kok Street,, New Territories, Hong Kong;
(2) RAYMOND CHIH CHUNG KWONG of Blocks C-D, 2nd Floor, G. Lee Industrial
Building, 77-81 Chai Wan Kok Street, New Territories, Hong Kong; and
Robert Albert Smeaton and Raymond Chih Chung Kwong shall hereinafter be
collectively referred to as the "VENDORS".
(3) GENEVA INVESTMENT HOLDINGS LIMITED a company incorporated in the
British Virgin Islands whose registered office is situate at Craigmuir
Chambers, PO Box 71, Road Town, Tortola, British Virgin Islands
("PURCHASER").
RECITALS:
A. ** is a company incorporated in Hong Kong.
B. The Vendors together are the legal and beneficial owners of 95% of the
entire issued share capital of **.
C. The Vendors together wish to sell and the Purchaser wishes to purchase
70% of the entire issued share capital of ** subject to, and on the
terms of, this Agreement.
D. ** has on even date entered into a business acquisition agreement
("BUSINESS ACQUISITION AGREEMENT") as the purchaser with the Vendors,
Tsang Kwok Kwong and ** ("PURIDET HONG KONG") together as the vendors
under which ** agreed to acquire the Business Assets (as defined in the
Business Acquisition Agreement) including the Capital Contribution in
** (as defined in the Business Acquisition Agreement) so that after the
acquisition, ** would (i) carry on the Business (as defined in the
Business Acquisition Agreement) as a going concern in succession to the
Vendors and ** with effect from the opening of the business on 19
October 1998; and (ii) wholly own the Subsidiary (as defined in clause
1,1 hereinbelow).
E. Whilst technically all of the issued shares of ** carry the same voting
rights, the parties have agreed that as regards a portion of the shares
being purchased by the Purchaser hereunder, in respect of which
immediate payment will not be made, the Purchaser shall not exercise
voting rights in respect of such shares unless and until, and to the
extent, that such shares are paid for in the manner as stipulated in
this Agreement.
** CONFIDENTIAL TREATMENT REQUESTED
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement unless the context otherwise requires:
(a) the following expression shall have the following meanings:
Expression Meaning.
---------- -------
"Companies Ordinance" the Companies Ordinance (Chapter 32,
as amended, of the Laws of Hong
Kong)
"Company" **, a company incorporated in Hong
Kong under the Companies Ordinance
certain basic information about
which is set out in Schedule I Part
B
"Completion" completion of the sale and purchase
of the Sale Shares in accordance
with the terms and conditions of
this Agreement
"Completion Date" the date on which Completion occurs
"Conditions" the conditions set out in Clauses
2.1 and 2.2
"Consideration" the consideration for the sale of
the Sale Shares payable by the
Purchaser to the Vendor pursuant to
clause 4
"disclosed" any matter fairly and properly
disclosed in this Agreement or any
document expressly referred to and
identified in this Agreement or
provided or made available or
otherwise disclosed in writing to
the President or Chief Operating
Officer of ** (and/or any of their
agents) and any fact or matter
contained or referred to in (or
which could be reasonably deduced
from) this Agreement or such
document or written disclosure
"Group" the Company and the Subsidiary
"HK$" Hong Kong dollars
"Non-Voting Shares" 90 shares of HK$1.00 each of
the Company which are legally and
beneficially owned by the Vendors
free of encumbrances and registered
in the names of the Vendors and form
part of the Sale Shares
** CONFIDENTIAL TREATMENT REQUESTED
2
"PRC" or "China" the People's Republic of
China but excluding for the purpose
of this Agreement Hong Kong, Macau
and Taiwan
"Property" Blocks C-D, 2nd Floor, G. Lee
Industrial Building, 77-81Chai Wan
Kok Street, New Territories, Hong
Kong
"SaleShares" 140 shares of HK$1.00 each
of the Company which are legally and
beneficially owned by the Vendors
(which for the avoidance of doubt
include the first subscriber shares
of the Company) and registered in
the names of the Vendors as set out
in Schedule I Part A
"Subsidiary" **, a
wholly-foreign-owned-enterprise
established under the laws of the
PRC certain basic information about
which is set out in Schedule I Part
C
"Tenancy Agreement" or tenancy agreement in respect of the
"Tenancy" Property
"Warranties" the representations, warranties and
undertakings set out in Schedule II
"US$" United States dollars
(b) words and expressions defined in the Companies Ordinance shall bear
the same respective meanings herein;
(c) references to any statute or statutory provision shall include any
statute or statutory provision which amends or replaces, or has
amended or replaced, it and shall include any subordinate legislation
made under the relevant statute;
(d) a body corporate shall be deemed to be associated with another body
corporate if it is a holding company or a subsidiary of that other
body corporate or as subsidiary of a holding company of that body
corporate;
(e) references to clauses and sub-clauses and Schedules are to clauses
and sub-clauses of and Schedules to this Agreement;
(f) references to writing shall include typewriting, printing,
lithograph, photography, telecopier and telex messages and any mode
of reproducing words in a legible and non-transitory form;
(g) words importing the singular include the plural and vice versa, words
importing a gender include every gender and references to persons
include bodies corporate or unincorporate; and
** CONFIDENTIAL TREATMENT REQUESTED
3
(h) any document expressed to be "in the approved form" means a document
approved by the parties hereto and (for the purpose of
identification) signed on behalf of the Vendors and the Purchaser.
1.2 Headings are for convenience only and shall not affect the
construction of this Agreement.
1.3 In construing this Agreement:-
(i) the rule known as the ejusdem generis rule shall not apply
and accordingly general words introduced by the word
"other" shall not be given a restrictive meaning by reason
of the fact that they are preceded by words indicating a
particular class of acts, matters or things;
(ii) general words shall not be given a restrictive meaning by
reason of the fact that they are followed by particular
examples intended to be embraced by the general words; and
(iii) reference to "the Vendors" shall where the context permits
be deemed to include also a reference to each of them.
1.4 Unless otherwise expressly provided to the contrary, all
representations, warranties, undertakings, indemnities, covenants,
agreements, obligations given or entered into by the Vendors are deemed
to be given and entered into by the Vendors jointly and severally and
the Vendors' liabilities thereunder shall also be joint and several.
1.5 The Schedules form part of this Agreement and shall have the Same force
and effect as if expressly set out in the body of this Agreement and
any reference to this Agreement shall include the Schedules.
2. CONDITIONS
2.1 Subject to any written waiver pursuant to clause 2.4, this Agreement is
conditional upon the completion of the Business Acquisition Agreement
in accordance with the terms thereof in all material respects.
2.2 Without prejudice to clause 2.1, this Agreement is further conditional
upon nothing coming to the Purchaser's attention prior to Completion
indicating that any of the Warranties do not remain true and accurate
in all material respects up to Completion.
2.3 The Vendors will use all reasonable endeavors to ensure that the
Conditions in cause 2.1 is fulfilled within 10 business days after
signing hereof. In the event that the Conditions are not fulfilled (or
waived by the Purchaser) within the time stipulated aforesaid, then the
Purchaser shall be entitled to (but not obliged to) forthwith rescind
this Agreement in writing to the Vendors and this Agreement shall
become null and void and of no further effect, in which event the
parties hereto shall be released from all their obligations hereunder
without liability but without prejudice to the rights accrued to the
parties prior to such rescission for any antecedent breach.
** CONFIDENTIAL TREATMENT REQUESTED
4
2.4 The Purchaser reserves the right to waive (to such extent as it may
think fit) compliance with the Conditions or any part thereof but
without prejudice to any other right which the Purchaser may have under
this Agreement. The Purchaser shall be deemed to have waived the
compliance with the Conditions or accepted the Conditions as having
been satisfied in all aspects if the Purchaser shall proceed with
Completion.
3. SALE AND PURCHASE
3.1 On the terms set out in this Agreement and subject to the Conditions:
(a) each of the Vendors shall sell as beneficial owner the number
of Sale Shares (including for the avoidance of doubt the
proportion thereof which are Non-Voting Shares) set opposite
his name in Schedule I Part A to the Purchaser free from all
liens, charges, encumbrances, equities and adverse interests
and with all rights attached or accruing thereto at 19 October
1998 (including the right to receive all dividends and other
distributions declared, made or paid on or after such dates)
with effect as of and from 19 October 1998 but subject to
clause 4.3 with respect to the Non-Voting Shares; and
(b) the Purchaser relying on the representations, warranties,
undertakings and indemnities of the Vendors contained or
referred to herein shall purchase the number of Sale Shares
set opposite each of the Vendors' names in Schedule I Part A
with effect as of and from 19 October 1998.
The transfer of all Sale Shares shall take effect from 19 October 1998.
For avoidance of doubt, with effect as of and from 19 October 1998, the
Purchaser shall be entitled, as beneficial owner of the Sale Shares to
(i) receive all dividends and other distributions declared, made or
paid in or after 19 October 1998 in respect of the Sale Shares; (ii)
exercise all voting powers and rights in respect of the Sale Shares
(subject however to the Purchaser's undertaking in clause 4.3(a) not to
vote the Non-Voting Shares except to the extent such shares are fully
paid for) and (iii) enjoy all such other rights, powers and benefits as
shall be conferred on the registered holder of the Sale Shares under
the articles of association of the Company or otherwise.
3.2 The Vendors hereby irrevocably waive and undertake to procure the
waiver of all rights of pre-emption and all other restrictions
whatsoever on transfer over or in respect of the Sale Shares or any of
them to which they or any other person may be entitled under the
articles of association of the Company or otherwise.
4. CONSIDERATION AND PAYMENT
4.1 The Consideration shall be ** Provided that of this amount ** shall not
be paid at Completion and any payments in respect of this retained
amount shall be governed by the provisions of clause 4.3. Each Vendor's
share of entitlement to the Consideration (in percentage) is set
against his respective name in Schedule I Part A.
** CONFIDENTIAL TREATMENT REQUESTED
5
4.2 The Purchaser shall pay to the Vendors US$500,000 (Five Hundred
Thousand US Dollars) as a fixed non-adjustable first stage payment of
the Consideration ("INITIAL PAYMENT") at Completion.
4.3 Voting in respect of the Non-Voting Shares and payment for the
Non-Voting Shares shall be governed by the following provisions:
(a) the Purchaser undertakes to the Vendors not to exercise the
voting rights in respect of or attached to any of the
Non-Voting Shares unless and until, and to the extent, such
shares have been paid for pursuant to the provisions of
sub-clause (b) below;
(b) For every US$20,000 of Consideration paid by the Purchaser
subsequent to the payment of US$500,000 of the Consideration
paid pursuant to clause 4.2 above, the Purchaser shall be
totally released from its undertaking in sub-clause (a) in
respect of two (2) Non-Voting Shares (for the purpose of
identification, the share numbers of which the Purchaser may
choose at its discretion). Any such subsequent Consideration
which is paid shall be paid by the Purchaser by delivering a
cheque to each Vendor respecting such Vendor's share of
entitlement to such Consideration.
(c) To the extent the Non-Voting Shares have not already been paid
for pursuant to sub-clause (b), the Vendors may by notice in
writing require the Purchaser forthwith to pay for any
Non-Voting Shares which have not by then been paid for, once
the accumulated realised net profits (i.e., income minus
expenditure (including but without limitation to all taxes,
salaries and expenses paid to the Vendors and all expenses
incurred in connection with the Business)) after tax since 19
October, 1998 (after taking into account any losses since 19
October, 1998 and adding back any fees or remuneration payable
and paid by the Company to the directors nominated by the
Purchaser and other expenses incurred by the Purchaser on
account of the Company without the consent of the Vendors), as
audited by an independent public auditor of the Company,
equals or exceeds US$900,000 (Nine Hundred Thousand US
Dollars) Provided only that the assessment of whether this
target has been reached may only be made following preparation
of financial statements of the Company in respect of any
year-end (i.e. March 31) or half year period (i.e. September
30).
For the avoidance of doubt, the accumulated realised net
profits aftertax aforesaid are before dividends and other
distributions declared, made or paid, if any. The Purchaser
shall pay for the Non-Voting Shares which have not been paid
for forthwith upon receiving the notice of the Vendors issued
in accordance with this sub-clause(c) except in the case of
manifest error.
4.4 The Vendors and the Purchaser agree and undertake with each other that
unless and until one shareholder obtains voting rights to at least
50.01 percent of the entire issued share capital of the Company,
unanimous consent of all shareholders shall be required for any matter
that under general law or the Company's constitutional documents
requires a majority vote of votes cast by shareholders. Without
prejudice to the Purchaser's undertaking in clause 4.3(a), given that
technically the Non-Voting Shares do not represent a formal class of
shares without voting rights, for the purpose of this clause 4.4, the
Purchaser shall be deemed not to have any voting rights in respect of
any Non-Voting Shares for which payment has not been made pursuant to
clause 4.3 as if such Non-Voting Shares did constitute such a class of
shares.
** CONFIDENTIAL TREATMENT REQUESTED
6
4.5 The Vendors and the Purchaser further agree that they shall endeavour
to promote the business of the Company and maximize its profits and the
business of the Company shall be conducted in substantially the same
manner as that prior to Completion, in each case until the Non-Voting
Shares have been paid for. In particular, the Purchaser agrees that to
the extent practicable and reasonable, it shall:
(a) supply the Company with ** enzymes at reasonably competitive
prices; and
(b) promote the Company's non-enzyme products through its
affiliates and distribution channels; and
Provided That the Vendors are aware of and fully understand and agree
that ** has other customers with which it deals directly in relation to
the same business of the Company and ** will and shall be entitled to
continue to deal directly with these customers in any manner in the
future as it deems fit at its sole discretion.
4.6 The Vendors and the Purchaser further agree to procure that the Company
shall not reduce or increase its share capital on or before 18 October
2000 except with the prior consent of the Vendors and the Purchaser.
5. COMPLETION
5.1 Completion of the sale and purchase of the Sale Shares shall take place
at such time as may be agreed between the parties hereto within three
business days of the fulfillment of the Conditions at the office of Ede
Charlton at 13th Floor, Wing On Centre, 111 Connaught Road Central,
Hong Kong, when all (but not part only) of the following business shall
be transacted:
(a) the Vendors shall confirm to the Purchaser of the fulfillment
of the Conditions;
(b) the Vendors shall deliver to or to the order of the
Purchaser:-
(i) duly executed sold notes in a form complying with the
Stamp Duty Ordinance in favour of the Purchaser
and/or its nominee(s) in respect of the Sale Shares,
together with a cheque drawn on an account with a
licensed bank in Hong Kong in favour of the
"Government of the Hong Kong Special Administrative
Region" for an amount equal to the ad valorem stamp
duty payable under the Stamp Duty Ordinance in
respect of the said sold notes;
** CONFIDENTIAL TREATMENT REQUESTED
7
(ii) instruments of transfer in respect of the Sale Shares
duly executed by or on behalf of the Vendors and
their nominees (as the registered holders and
transferors of the Sale Shares) in favour of the
Purchaser and/or its nominee;
(iii) all share certificates in respect of the Sale Shares;
(iv) a written letter from Tsang Kwok Kwong irrevocably
waive all rights of pre-emption and all other
restrictions whatsoever vis-a-vis the Purchaser on
transfer over or in respect of the Sale Shares and
the Option Shares (as defined in clause 6) or any of
them to which he may be entitled under the articles
of association of the Company or otherwise; and
(v) such other documents as may be reasonably required by
the Purchaser which are necessary according to law to
give a good title to the Sale Shares and to enable
the Purchaser and/or its nominee to be registered as
the holders thereof;
(c) the Vendors shall deliver to or to the order of the Purchaser
the statutory books (which shall be written up to but not
including the Completion Date), certificate of incorporation
and each certificate of incorporation on change of name;
(d) the Vendors shall procure a board meeting of the Company to be
held at which:-
(i) the Purchaser and/or its nominee shall be approved
for registration as the holder(s) of the Sale Shares
subject only to the relevant instruments of transfer
being duly stamped and presented for registration;
(ii) signed resignation in approved form from Tsang Kwok
Kwong as secretary of the Company shall be tendered
and approved, such resignation to take effect on
Completion Date;
(iii) The President and Chief Operating Officer of ** shall
each be appointed directors of the Company, and such
person as they shall nominate shall be appointed as
secretary, such appointments to take effect (in the
case of the directors) on the Completion Date; and
(e) the Purchaser shall:
(i) pay the Initial Payment in accordance with clause 4.2
by delivering to each Vendor a cheque representing
such Vendor's share of entitlement to the Initial
Payment; and
(ii) deliver to the Vendors a certified true copy of the
resolution of the sole director of the Purchaser
approving the purchase and the related transactions
contemplated herein and the execution and completion
of this Agreement and all other associated deeds and
documents.
** CONFIDENTIAL TREATMENT REQUESTED
8
5.2 The Purchaser shall not be obliged to complete this Agreement or
perform any obligations under this clause 5 unless theVendors
demonstrate that they are able to comply fully with the requirements of
clause 5.1 and the Vendors shall not be obliged to complete this
Agreement or perform any obligations under this Clause 5 unless the
Purchaser demonstrates that it is able to comply fully with the
requirements of Clause 5.1(e).
6. TRANSFER OF SHARES
6.1 Each of the Vendors hereby agrees and undertakes not to sell, transfer,
charge, encumber, grant options over or otherwise dispose of or create
encumbrances over, or of any beneficial interest in, any of his shares
in the capital of the Company now owned or hereafter acquired by him
under or pursuant to the articles of association of the Company or
otherwise within the Option Period except with the prior written
consent of the President of the Purchaser given at his sole discretion.
6.2 For a period of twenty (20) years after the Completion Date ("OPTION
PERIOD") and so long as any of the Vendors shall beneficially own any
shares in the capital of the Company, the Purchaser shall have a call
option over each of such shares exercisable at any time and from tune
to time after the Consideration has been fully paid and in any event
not earlier than two (2) years after the Completion Date, to purchase
the Option Shares at the Prescribed Price (as defined in clause 6 9)
("OPTION"). The Purchaser may exercise the Option by serving a written
notice ("OPTION NOTICE") on the relevant Vendor ("SELLER") requiring
him to transfer all or such number of shares he beneficially owns in
the capital of the Company ("OPTION SHARES") to the Purchaser and/or
its nominee at the Prescribed Price.
6.3 Upon service of the Option Notice, the Seller shall be bound to sell
the Option Shares to the Purchaser and/or its nominee at the Prescribed
Price.
6.4 Completion of the sale and purchase of the Option Shares shall take
place at the Company's registered office on a date to be appointed by
[its board of directors] whereupon:
(a) the Seller shall, if requested by the Purchaser, resign as a
director of the Company;
(b) the Seller shall deliver or procure to be delivered to the
Purchaser and/or its nominee duly executed transfer documents
to effect the sale of the Option Shares together with the
respective share certificate(s) relating thereto; and
(c) the Purchaser shall pay the Prescribed Price to the Seller.
6.5 The Option Shares shall be sold and transferred with all rights and
benefits attaching thereto at the date of the Option Notice and free
from all charges, liens, encumbrances, claims and other third party
rights whatsoever. Any stamp duty or other tax payable on the transfer
of the Option Shares shall be borne by the Purchaser.
** CONFIDENTIAL TREATMENT REQUESTED
9
6.6 If the Seller shall make default in transferring any of the Option
Shares pursuant to this clause 6, the Company may receive the purchase
money on behalf of the Seller and the Seller hereby appoints any one
director of the Company as his attorney to execute the relevant
transfer documents pursuant to sub-clause 6.4(b) and upon execution of
such documents, the Company shall hold the purchase money in trust for
the Seller. The receipt of the purchase money shall be good discharge
to the Purchaser (who shall not be concerned with the application
thereof) and, after the names of the transferee(s) has or have been
entered in the register of members of the Company, the validity of the
proceedings as respect such transferee(s) shall not be questioned by
any person except on the ground of breach of this Agreement on the part
of the Purchaser.
6.7 The Vendors shall exercise and procure the exercise of all voting and
other rights available to them to ensure the implementation of the
foregoing provisions of this clause 6 and any provisions contained in
the articles of association of the Company restricting transfers of the
Option Shares shall be waived or suspended to allow such sales and
purchases to proceed as provided above.
6.8 For a period of twenty-four months commencing eighteen (18) months
after the Completion Date, each Vendor shall have a put option
exercisable against the Purchaser over all (but not part only) of the
shares ("OPTION SHARES") beneficially owned by him in the capital of
the Company ("PUT OPTION"). The Put Option shall be exercisable at any
time during the said twenty-four months period at the Prescribed Price
(as defined in clause 6.9) by serving a written notice on the Purchaser
("OPTION NOTICE"). Upon service of the Option Notice the Purchaser
(and/or its nominee(s)) shall be bound to purchase and the Vendor
serving the Option Notice ("SELLER") shall be bound to sell the Option
Shares at the Prescribed Price and clauses 6.4 to 6.7 (both inclusive)
shall apply, mutatis mutandis.
6.9 For the purposes of this clause 6, the Prescribed Price for the Option
Shares shall be:
(a) if at the date of the Option Notice, the Seller shall have
terminated his service agreement with the Company (other than
by reason of death or physical incapacity or termination by
and on the default of the Company) before the expiration of
eighteen (18) months from the commencement of his employment
under the service agreement, One Hong Kong Dollar (HK$1); or
(b) if at the date of the Option Notice, the Seller shall have
terminated his service agreement with the Company (other than
by reason of death or physical incapacity or termination by
and on the default of the Company) before the expiration of
two years but after the expiration of eighteen months from the
commencement of his employment under the service agreement,
then:
(i) the Prescribed Price of 25% of the Option Shares
shall be One Hong Kong Dollar (HK$1); and
(ii) the Prescribed Price of 75% of the Option Shares
shall be a percentage of the then entire issued share
** CONFIDENTIAL TREATMENT REQUESTED
10
capital of the Company represented by 75% of the
Option Shares times a sum in US$ equivalent to one
and a half (1.5) times the before tax operative
profit of the Company for the twelve months
proceeding the date of the Option Notice. ("RELEVANT
PROFIT"); or
(c) in any other circumstances, a percentage equivalent to the
percentage of the then entire issued share capital of the
Company represented by the Option Shares times a sum in US$
equivalent to one and a half (1.5) times the Relevant Profit
For the purposes of this clause 6.9, the auditor of the Company is
hereby irrevocably instructed to determine the Relevant Profit (or, if
he refuses to act, a person nominated by the President of the Hong Kong
Society of Accountants); taking into account all such circumstances as
shall seem to him relevant. The auditor or such person nominated by the
President of the Hong Kong Society of Accountants as the case may be is
hereby instructed to act as expert and not as arbitrator and his
decision shall (save in respect of manifest error) be final and binding
on the Seller and the Purchaser for all purposes and his costs shall be
borne by the Company.
7. WARRANTIES
7.1 The Vendors hereby jointly and severally:
(a) represent, warrant and undertake to the Purchaser in the terms
set out in Schedule II and accepts that the Purchaser is
entering into this Agreement and each part thereof in reliance
upon each of the Warranties.
(b) undertake to indemnify the Purchaser against any reasonable
costs (including all reasonable legal costs), expenses or
other liabilities, which it may incur in connection with any
of the Warranties being untrue or misleading or having been
breached.
No information relating to the Business of which the Purchaser has
knowledge (actual or constructive) save only for the information
disclosed shall prejudice any claim made by the Purchaser under the
Warranties or operate to reduce any covenant herein.
7.2 Without prejudice to any other remedy available to the Purchaser or its
ability to claim damages on any basis which is available by reason of
any of the Warranties being untrue or misleading or being breached, the
Vendors jointly and severally undertake to pay to the Purchaser or (in
the case of a liability to another person which has not been
discharged) to the person to whom the liability has been incurred an
amount equal to any deficiency or liability of the Company and/or the
Subsidiary which arises from any of the Warranties being untrue,
misleading or breached and which would not have existed or arisen if
the Warranty in question had not been untrue, misleading or breached.
7.3 Each of the Warranties shall be construed as a separate Warranty and
(save as expressly provided to the contrary) shall, not be limited or
restricted by reference to or inference from the terms of any other
Warranty.
** CONFIDENTIAL TREATMENT REQUESTED
11
7.4 The Vendors hereby jointly and severally undertake that they will from
time to time and within a period of 24 months after Completion,
forthwith disclose in writing to the Purchaser any event, fact or
circumstance which may become known to either of the Vendors after the
date hereof and which is materially inconsistent with any of the
Warranties or which could reasonably be expected materially to affect a
purchaser for value of any of the Sale Shares or which may entitle the
Purchaser to make any claim under this Agreement.
8. ANNOUNCEMENTS
8.1 Subject to any applicable statutory or regulatory rules, or otherwise
as may be required, none of the parties hereto shall make any public
announcement in relation to the transactions the terms is of which are
set out in this Agreement or the transactions or arrangements hereby
contemplated or herein referred to or any matter ancillary hereto or
thereto without the prior consent of the other parties (which consent
shall not be unreasonably withheld or delayed).
9. COSTS
9.1 Each party shall pay its own costs in relation to the negotiations
leading up to the sale and purchase of the Sale Shares and to the
preparation, execution and carrying into effect of this Agreement.
9.2 Notwithstanding anything herein provided, the Vendors shall pay all ad
valorem stamp duty on the sale of the Sale Shares and the Purchaser
shall pay all ad valorem stamp duty on the purchase of the Sale Shares.
10. FURTHER ASSURANCE
10.1 Each of the parties hereto undertakes to the other parties that it will
do all such acts and things and execute all such deeds and documents as
may be necessary or desirable to carry into effect or to give legal
effect to the provisions of this Agreement and the transactions hereby
contemplated.
10.2 At all times (whether before or after Completion (so long as the
relevant Vendor is under a service contract with the Company)) the
Vendors shall at their own cost and expense provide or procure to be
provided to the Purchaser all such information relating to the Business
and/or the affairs of the Company and/or the Subsidiary as they may
have in their possession or under their control as the Purchaser shall
from time to time reasonably require and, for this purpose, shall give
the Purchaser and its representatives, agents and advisers full access
to, and permit them to copy, all such information.
11. ACCESS TO INFORMATION
As from the date of this Agreement until Completion the Vendors shall
give and. shall procure that the Purchaser and any persons authorised
by it will be given all such information relating to the Group and such
access to the premises and copies of all books, title deeds, records,
accounts and other documentation of the Group 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 Group 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.
** CONFIDENTIAL TREATMENT REQUESTED
12
12. MISCELLANEOUS
12.1 Any provision of this Agreement which is capable of being performed
after but which has not been performed at or before Completion and all
warranties and indemnities and other undertakings contained in or
entered into pursuant to this Agreement shall remain in full force and
effect notwithstanding Completion.
12.2 The Vendors shall not assign or transfer, or purport to assign or
transfer, any of their rights or obligations arising under this
Agreement without the prior written consent of the Purchaser but the
Purchaser may assign or transfer all or any part of its rights and
obligations arising under this Agreement to any associated company
which is a subsidiary or parent company of the Purchaser or a company
under the control of the Purchaser or of the same person as is the
Purchaser (and for the purposes of this clause 12.2 "control" shall
have the same meaning as defined in Section 2(2) of the Inland Revenue
Ordinance (Cap.112 of the Laws of Hong Kong)).
12.3 This Agreement shall be binding on and enure for the benefit of the
successors of each of the parties but shall not be assignable.
12.4 Any remedy conferred on a party for breach of this Agreement (including
the breach of any Warranty) shall be cumulative, in addition and
without prejudice to all other rights and remedies available to it and
the exercise of or failure to exercise any remedy shall not constitute
a waiver by a party of any of its rights or remedies.
12.5 This Agreement constitutes the whole agreement between the parties
relating to the transactions hereby contemplated (no party having
relied on any representation or warranty made by any other party which
is not a term of this Agreement) and no future variation and/or waiver
shall be effective unless made in writing and signed by each of the
parties.
12.6 This Agreement shall supersede all and any previous agreements or
arrangements between the parties hereto or any of them relating to the
Company or to any other matter referred to in this Agreement and all or
any such previous agreements or arrangements (if any) shall cease and
determine with effect from the date hereof.
12.7 If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect, the remaining provisions
hereof shall in no way be affected or impaired thereby.
12.8 The provisions of clause 14.12 of the Business Acquisition Agreement
shall be deemed to be repeated herein, mutatis mutandis (for the
avoidance of doubt, including cross-references to other provisions in
that agreement relating to "Regular Warranties" and "Special
Warranties" and so that cross-references to this Agreement and the
parties shall be deemed to be repeated but with references to the
Business Acquisition Agreement and the parties thereto).
** CONFIDENTIAL TREATMENT REQUESTED
13
13. NOTICES
(a) Any notices (which term shall include any other communication)
required to be given under this Agreement or in connection
with the matters contemplated by it shall, except where
otherwise specifically provided, be in writing in the English
language.
(b) Any such notice shall be addressed as provided in clause
13.1(c) and may be:
(i) personally delivered, in which case it shall be
deemed to have been given upon delivery at the
relevant address; or
(ii) sent by pre-paid post in which case it shall be
deemed to have been given 7 days after the date of
posting; or
(iii) sent by facsimile, in which case it shall be deemed
to have been given when dispatched, subject to
confirmation of uninterrupted transmission by a
transmission report.
(c) The addresses and other details of the parties referred to in
clause 13.1(b):
Name: Robert Albert Smeaton
Address: **
Fax No.: **
Name: Raymond Chih Chung Kwong
Address: **
Fax No.: **
Name: Geneva Investment Holdings Limited
Address: c/o Deacons Graham & James
3-6/F., Alexandra House,
Chater Road,
Central,
Hong Kong
Fax No.: (852) 2810-0431
14. TIME OF THE ESSENCE
Time shall be of the essence of this Agreement.
15. LAW AND ARBITRATION
15.1 This Agreement shall be governed by, and construed in accordance with,
the laws of the Hong Kong Special Administrative Region.
** CONFIDENTIAL TREATMENT REQUESTED
14
15.2 Any dispute, controversy or claim arising out of or relating to this
Agreement, or the breach termination or invalidity thereof, shall be
settled by arbitration in accordance with the UNCITRAL Arbitration
Rules as at present in force and as may be amended by the rest of this
clause upon application by any party hereto to the Hong Kong
International Arbitration Centre ("HKIAC"). The arbitration shall be
conducted in the English language and the place of arbitration shall be
in Hong Kong at the Hong Kong International Arbitration Centre. Any
such arbitration shall be administered by HKIAC in accordance with
HKIAC Procedures for Arbitration Rules as are therein contained. The
decision of the arbitrators (by rule of majority) shall be final and
binding on the parties (including any decision on their fees).
IN WITNESS whereof this Agreement has been entered into the day and
year first above written.
** CONFIDENTIAL TREATMENT REQUESTED
15
SCHEDULE I
PART A
(THE VENDORS)
Name No. of Sale Shares Held % of Entitlement of Consideration
Robert Albert Smeaton 63 45%
Raymond Chih Chung Kwong 77 55%
Total 140 100%
=== ====
PART B
(THE COMPANY)
1. Name **
2. Date of incorporation: 19 June 1998
3. Place of incorporation: Hong Kong
4. Registered Office: **
5. Authorised share capital: HK$10,000 divided into 10,000 ordinary shares of
HK$1.00 each
6. Issued share capita/: 200 ordinary shares of HK$1.00 each
7. Directors: Robert Albert Smeaton and Tsang Kwok Kwong
8. Secretary: Tsang Kwok Kwong
9. Auditors: Paul W. C. Ho & Company, Certified Public Accountants
10. Registered and Beneficial Shareholders: Robert Albert Smeaton (88 shares)
Raymond Chih Chung Kwong
(102 shares)
Tsang Kwok Kwong (10 shares)
** CONFIDENTIAL TREATMENT REQUESTED
16
PART B
(THE SUBSIDIARY)
1. Company Name:
(in Chinese) **
(in English) **
2. Nature: wholly-foreign-owned enterprise established under the laws of
the PRC
3. Total Investment: **
4. Registered Capital: **
5. Scope of Business: Production of laundering and dyeing auxiliary (70%
export)
6. Date of Approval: 27 November 1995
7. Term of Operation: 12 years (29 November 1995 to 28 November 2007)
8. Address: **
9. Legal Representatives: Tsang Kwok Kwong
** CONFIDENTIAL TREATMENT REQUESTED
17
SCHEDULE II
1. Preliminary
(A) The representations, warranties and undertakings contained in Schedule
V to the Business Acquisition Agreement (including the Regular
Warranties and the Special Warranties, as defined in the Business
Acquisition Agreement) shall be deemed to be repeated (and with
equivalent provisions as to timing for claims) by the Vendors mutatis
mutandis in relation to the Business and Business Assets (both as
defined in the Business Acquisition Agreement) of the Company and the
Subsidiary.
(B) Where any of the Warranties is qualified as being "to the information,
knowledge or belief of the Vendors" or "so far as the Vendors are
aware" or by other similar expression, the Vendors shall be deemed to
be giving such Warranty to the best of their knowledge, belief and
information.
2. Information
(A) All information given in this Agreement, including the Schedules, is
true, complete and accurate at the date hereof.
(B) To the knowledge of the Vendors all information given to the Purchaser
and its professional advisers by the Vendors, the officers and
employees of the Company, the Vendors' professional advisers and the
Company's advisers was when given and is at the date hereof true, and
accurate in all material respects and there is no fact, matter or
circumstance known to the Vendors which has not been disclosed to the
Purchaser or its professional advisers which renders any such
information untrue, inaccurate or misleading and this Agreement has
been entered into by the Vendors in good faith.
(C) The copy of the memorandum and articles of association of the Company
produced to the Purchaser is complete and accurate in all respects, has
attached to it copies of all resolutions and other documents required
by law to be so attached and fully sets out the rights and restrictions
attaching to each class of share capital of the Company.
3. Sale Shares
(A) The Vendors are the sole beneficial owners of the Sale Shares, each
Vendor owning the number of Sale Shares set out in Schedule I Part A
and are entitled to sell and transfer the full legal and beneficial
ownership of the same to the Purchaser. The Vendors are the sole
beneficial owners of a total of 190 shares in the capital of the
Company. Tsang Kwok Kwong is the sole beneficial and registered owner
of 10 shares in the capital of the Company representing 5% of the
entire issued share capital of the Company. The shares beneficially
owned by the Vendors and Tsang Kwok Kwong in the Company collectively
constitute the Company's entire issued share capital.
(B) There is no option, right to acquire, mortgage, charge, pledge, lien or
other form of security or encumbrance on, over or affecting any of the
Sale Shares or any other issued shares of the Company or any part of
the unissued share capital of the Company and there is no agreement or
commitment to give or create any of the foregoing and no claim has been
made by any person to be entitled to any of the foregoing which has not
been waived in its entirety or satisfied in full.
** CONFIDENTIAL TREATMENT REQUESTED
18
(C) The Sale Shares represent 70% of the entire issued share capital of the
Company and are fully paid up and rank pari passu in all respects.
(D) There is no agreement or commitment outstanding which calls for the
allotment or issue of or accords to any person the right to call for
the allotment or issue of any shares or debentures in the Company.
(E) No consent of any third party is required for the sale of any of the
Sale Shares save as provided in the articles of association of the
Company.
4. Corporate Matters
(A) The Company has been duly incorporated and is validly existing under
the laws of Hong Kong and has full power, authority and legal right to
own its assets and carry on its business.
(B) Save for the Subsidiary, the Company has no interest in the share
capital of any company or in any partnership or joint venture.
(C) The copies of the memorandum and articles of association of the Company
is accurate, complete and up to date in all material respect as at the
date of this Agreement. The Company has complied with its memorandum
and articles of association in all material respects and none of the
activities, agreements, commitments or rights of the Company is ultra
vires or unauthorised.
(D) The register of members and other statutory books of the Company have
been properly kept by the company secretary and the Company has
maintained proper and consistent accounts, books and records of its
business, assets and activities (including all accounts, books and
records required to be kept by the law) and all such registers and
records contain a true, accurate, up to date and complete record of the
matters which should be dealt with therein, are in the possession of
the Company and no notice or allegation that any of the same is
incorrect or should be rectified has been received.
(E) All returns and forms required to be filed with the Companies Registry
have been properly filed within any applicable time limit and
compliance has been made in all material respects with all legal,
filing and procedural requirements and other formalities in connection
with the Company concerning:
(a) its memorandum and articles of association or other
constitutional documents (including all resolutions passed or
purported to have been passed);
(b) the filing of all documents required by the Companies
Ordinance or other appropriate legislation to be filed with
the Registrar of Companies or other appropriate regulatory
bodies;
** CONFIDENTIAL TREATMENT REQUESTED
19
(c) issues of shares debentures or other securities;
(d) payments of interest and dividends and making of other distributions;
and
(e) directors and other officers.
(F) The Vendors are not aware of any material breach by the Company or any
of its officers (in his capacity as such) of any legislation or
regulations affecting it or its business.
5. Litigation and Insolvency
(A) The Company is not engaged whether as plaintiff, defendant or otherwise
in any material litigation or arbitration, administrative or criminal
or other proceeding and no litigation or arbitration, administrative or
criminal or other proceedings against the Company is pending,
threatened or expected and so far as the Vendors are aware, there is no
fact or circumstance likely to give rise to any such litigation or
arbitration, administrative or criminal or other proceedings or to any
proceedings against any director, officer or employee (past or present)
of the Company in respect of any act or default for which the Company
might be vicariously liable.
(B) So far as the Vendors are aware no receiver has been appointed of the
whole or any part of the assets or undertaking of the Company.
(C) So far as the Vendors are aware no petition has been presented, no
order has been made and no resolution has been passed for the winding
up or dissolution of the Company.
(D) The Company has not stopped payment nor is insolvent or unable to pay
its debts within the meaning of section 178 of the Companies Ordinance.
(E) No unsatisfied judgment is outstanding against the Company.
(F) The Company has not committed nor is liable for any criminal, illegal,
unlawful act imposed by or pursuant to statute.
6. Powers of attorney and Guarantees
(A) The Company has not given any power of attorney or other express
authority and the Vendors are not aware of any implied or ostensible
authority which is outstanding or effective to any person to enter into
any contract or commitment on its behalf other than to its employees to
enter into routine trading contracts in the normal course of their
duties.
(B) The Company has not given any guarantee or warranty or made any
representation in respect of services, articles or trading stock sold,
hired or leased or contracted to be sold, hired or leased by it save
for all such guarantees or warranties as are usually implied by Hong
Kong law and (save as aforesaid) has not accepted any liability or
obligation to service, repair, maintain, take back or otherwise do or
not do anything in respect of any services, articles or stock had been
delivered by it.
** CONFIDENTIAL TREATMENT REQUESTED
20
7. Loans and other obligations
(A) No loan made by the Company has been made in breach of the Companies
Ordinance (Cap 32 of the Laws of Hong Kong), the Banking Ordinance (Cap
155 of the Laws of Hong Kong) or any regulations made thereunder, or
the Money Lender Ordinance (Cap 163 of the Laws of Hong Kong).
(B) No person other than the Company has given any guarantee of or security
for any overdraft, loan or loan facility granted to the Company or any
other obligation imposed on or incurred by the Company.
(C) There are no liens, guarantees, indemnities, pledges, mortgages,
charges, debentures or encumbrances or unusual liabilities given, made
or incurred by or on behalf of the Company.
8. Tenancy Agreement
(A) The Company does not own and has not owned (whether jointly or singly)
any real property in Hong Kong or elsewhere. The Property is the only
real property anywhere used or occupied by the Company or in respect of
which the Company has any estate, interest, right or liability. The
Property is occupied by the Company under and pursuant to the Tenancy
Agreement.
(B) In relation to the Tenancy:
(i) the Tenancy is good valid and subsisting and in no way has
become void or voidable;
(ii) all rent and other charges payable under the Tenancy have been
promptly paid as and when due and there is no overdue rent
payable as at Completion;
(iii) there has been no breach in any material respect of the
covenants, conditions, obligations or restrictions imposed
upon the Company under the Tenancy and there is no
circumstances under which (with or without the taking of any
other action) would entitle the landlord of the Property or
any other third party to exercise the right or power of entry
to or to take possession of or which would in any other way
affect or restrict the continued possession, quiet enjoyment
or present use of the Property by the Company pursuant to the
terms of the Tenancy Agreement;
(iv) on the Completion Date there will be a written tenancy
agreement in respect of the Property for a term of three years
from the Transfer Date at the current rate of rental entered
into between the landlord of the Property and the Company and
references to the "Tenancy" and the "Tenancy Agreement" herein
shall be deemed to include such new arrangement. Such tenancy
agreement will be properly and adequately stamped;
** CONFIDENTIAL TREATMENT REQUESTED
21
(v) the term of the Tenancy, the rental payment and deposits paid
or payable in respect of the Tenancy are fully and correctly
set out in the Tenancy Agreement;
(vi) there is no review of the rent payable by the Company in
respect of the Tenancy in the course of being determined;
(vii) the Company has not received or been served on any notice to
quit, Form CRI01 and other notice of termination of the
Tenancy required to be served upon the Company so as to
terminate the Tenancy or entitle the landlord of the Property
to recover possession of the Property prior to the end of the
term of the Tenancy; and
(viii) so far as the Vendors are aware there has been no deduction by
the landlord of the Property from the deposit pursuant to the
terms of the Tenancy Agreement and the entire amount of
deposit paid to the landlord will be returned to the Company
upon termination of the Tenancy.
(C) A true and complete copy of the Tenancy Agreement has been provided to
the Purchaser.
9. No Assets and Liability
Since its incorporation, the Company has not entered into any contract
or agreement (whether or not legally binding) or transacted any
business or acquired or owned any assets or assumed any liability
whatsoever save for its execution of the Business Acquisition Agreement
10. Repetition at Completion
All warranties and representations contained in the foregoing
provisions of this Schedule shall be deemed to be repeated immediately
before Completion and to relate to the facts then existing.
** CONFIDENTIAL TREATMENT REQUESTED
22
SIGNED by ROBERT ALBERT )
SMEATON in the presence of: ) /s/ Robert Albert Smeaton
SIGNED BY RAYMOND CHIH CHUNG )
KWONG in the presence of: ) /s/ Raymond Chih Chung Kwong
SIGNED )
for and on behalf of GENEVA ) /s/ Illegible
INVESTMENT HOLDINGS LIMITED )
** CONFIDENTIAL TREATMENT REQUESTED
23
Confidential Treatment Requested indicates portion of
this document have been redacted and have been
separately filed with the Commission.
THIS AGREEMENT is made on the 8th day of July, 2002.
BETWEEN:
(1) RAYMOND CHIH CHUNG KWONG OF ** ** ("Raymond")
(2) GENEVA INVESTMENT HOLDINGS LIMITED a company incorporated in the
British Virgin Islands whose registered office is situated at Craigmuir
Chambers, **
** ("Geneva")
(3) ** a company incorporated in Hong Kong whose registered office is at **
**
(4) ROBERT ALBERT SMEATON of ** ** ("Robert"); and
WHEREAS:
(i) Raymond made payments on behalf of ** to a trade vendor October 18,
1998 and entered into a Promissory note with ** dated November 17,
1998, for the amount of HK$748,583.54 at a simple interest rate of 6%
per annum. This is still outstanding and per the Promissory note
Raymond can only be paid any portion at the same time the three other
Promissory notes entered into by Geneva, Robert Albert Smeaton
("Robert") and Kwok Kwong Tsang ("Tsang") are paid and in proportion to
Raymond's outstanding amount to the total of the outstanding Promissory
notes.
(ii) (a) By an agreement dated 21 October 1998 ("Sales Agreement"), Raymond
and Robert sold to Geneva the total of 140 shares of ** which
represented 70% of the outstanding shares of ** in the following
proportion:
Name No. of Sale Shares % of Entitlement of Consideration
- ---- ------------------ ---------------------------------
Robert 63 45%
Raymond 77 55%
-- ---
140 100%
(b) By clause 4.3 of the Sales Agreement, the voting rights of 90
of these shares are restricted. Of those 90 shares, 50 were
attributable to Raymond and 40 to Robert.
(c) Under the Sales Agreement there remains a secondary payment of
US$900,000.00 to be paid upon ** accumulating profit net of
taxes of the same amount. Upon payment or a portion of this
the shares or a portion would no longer be restricted.
** CONFIDENTIAL TREATMENT REQUESTED
(iii) ** paid to Raymond Automobile expenses of HK$111,335.00 (US$14,385.00)
which was paid in error and has not been repaid.
(iv) By an agreement dated 21 October, 1998 (Service Agreement), Raymond
agreed to provide service to **.
Now it is hereby agreed as follows:
3. In consideration that as at 1 July, 2002 ** shall pay the agreed sum of
US$100,000.00 (One Hundred Thousand US dollars) to Raymond, in the
manner of US$20,000.00 or HK$156,000.00 (Twenty thousand US dollars or
One Hundred and Fifty Six Thousand HK dollars) upon execution of this
agreement, and thereafter by eight (8) equal calendar monthly payments
of US$10,000.00 or HK$78,000.00 (Ten thousand US dollars or Seventy
Eight Thousand HK dollars) commencing on the 15 July, 2002. Raymond,
Geneva, ** and Robert agree as follows:
(a) That Raymond hereby releases unto ** all rights and benefits
charged or assigned unto ** under the said Promissory Note to
hold the same unto ** absolutely free and absolutely
discharged of and from the said Promissory Note and of the
from all principal interest (other than that set out in this
Clause) and other monies thereby secured and all claims and
demands for or in respect of the same or in anyway relating
thereto.
(b) Raymond hereby releases ** from all current contractual
responsibilities.
(c) ** and Geneva hereby release Raymond from all previous and
current contractual responsibilities and any debts owing to **
including past automobile expenses (US$14,365.80) in exchange
for Raymond waving outstanding interest (US$18,100.48) due
under the Promissory note up to and including 31 December,
2001.
(d) The restrictions imposed by Clause 4.3 of the Sales Agreement
on the Raymond Non-Voting Shares shall be removed immediately;
Raymond shall have no other financial or other claims against
Geneva or its Parent Company Dyadic International, Inc. or **.
This eliminates any obligations of Geneva in the Sale
Agreement. Raymond releases all his rights under the Sales
Agreement and specifically his right to any payment that could
be due from Geneva in the future under Clause 4.3(c) of the
Sales Agreement.
(e) Any and all rights and claims of Raymond to his prior or
present shares and interest in ** shall be relinquished.
(f) Any obligations of the Purchaser under Clause 4.3 of the Sales
Agreement are deemed as settled in full.
** CONFIDENTIAL TREATMENT REQUESTED
(g) Any of Raymond's rights to any further consideration under the
Sales Agreement is relinquished.
(h) The Non-Voting Shares sold by Robert are reserved and remain
subject to the Sales Agreement and are unaffected by this
agreement. Fur the avoidance of doubt, all Robert's rights
under the Sales Agreement remain unaffected including the
restrictions on the Non-Voting Shares sold by Robert.
(i) ** and Geneva jointly and severally release Raymond from any
restrictive covenant arisen from the Service Agreement. It is
acknowledged that Raymond has had no influence in running **
since 17 January, 2000.
(j) **Geneva and Robert jointly and severally release Raymond from
any restrictive covenant arisen from the Sales Agreement.
(k) Upon execution of this agreement, Raymond will have no past,
present and future obligations or responsibilities under the
Sales Agreement and Service Agreement.
2. Each of the parties hereto undertakes to the other parties that it will
do all such acts and things and execute all such deeds and documents as
may be necessary or desirable to carry into effect or to give legal
effect to the provisions of this Agreement and the transactions hereby
contemplated.
3. Served as the aforesaid provisions, all provisions of the Sales
Agreement and Service Agreement are deemed to be fully complied with by
all parties and all outstanding interests and responsibilities are
incorporated and substituted by this agreement.
4. This Agreement constitutes the whole agreement between the parties
relating to the transactions hereby contemplated (no party having
relied on any representation or warranty made by any other party which
is not a term of this Agreement) and no future variation and/or waiver
shall be effective unless made in writing and signed by each of the
parties.
5. If at any time any provisions of this Agreement is or becomes illegal,
invalid or unenforceable in any respect, the remaining provisions
hereof shall in no way be effected or impaired thereby.
6. This Agreement will be construed in accordance with and governed by the
laws of Hong Kong SAR and each party hereby submits to the
non-exclusive jurisdiction of the courts of Hong Kong as regards any
claim or matter arising under this Agreement.
** CONFIDENTIAL TREATMENT REQUESTED
In witness whereof this agreement has been entered into the [ ]
SIGNED by RAYMOND CHIH CHUNG KWONG )
) /s/ Raymond Chih Chung Kwong
In the presence of )
/s/ C. Neyland ) 18-7-02
CARMEL DENISE NEYLAN )
Justice of the Peace (Qualified) )
Department of Justice Queensland )
Signed by )
) /s/ Illegible, as President
for and on behalf of GENEVA INVESTMENT )
) July 11, 2002
HOLDINGS LIMITED )
)
in the presence of: )
/s/ Laura L. Morse )
Laura L. Morse )
Commission #CC959142 )
Expires Sep. 19, 2004 )
Bonded Thru Atlantic Bonding Co., Inc. )
SIGNED by ** )
) For and on behalf of
for and on behalf of ** ) **
) /s/ Illegible
in the presence of ) Authorized Signature(s)
/s/ H. Wong ) 8-7-2002
Henry Wong )
SIGNED by ROBERT ALBERT SMEATON )
) /s/ Robert Albert Smeaton
in the presence of )
/s/ H. Wong ) 8-07-02
Henry Wong )
** CONFIDENTIAL TREATMENT REQUESTED
Confidential Treatment Requested indicates portion of
this document have been redacted and have been
separately filed with the Commission.
THIS AGREEMENT is made on the 17th day of January 2000
Between:
(1) **, a company incorporated in Hong Kong and having its registered
office situated at **, **, (the "Company"); and
(2) RAYMOND CHIH CHUNG KWONG of ** ** ("the Manager"); and
WHEREAS:
A. The Company and Manager have entered into a Service Agreement dated
October 21, 1998 ("Service Agreement")
B. The Company and Manager have agreed to terminate the Service Agreement
on the terms hereinafter contained.
NOW IT IS AGREED as follows:
1. The Service Agreement is terminated effective from January 17th, 2000
and shall thereafter have no further effect whatsoever.
2. The Manager confirms that he has no claim against the Company
whatsoever for the loss of office whether in respect of fees
remuneration, compensation or otherwise.
3. The Manager shall forthwith transfer all or such number of shares he
beneficially owns in the capital of the Company to the Geneva
Investment Holdings Limited and/or its nominee at the price of HK
$1.00.
4. Neither the Manager nor the Company shall have any further claim
whatsoever against the other for or on account of the Service
Agreement.
IN WITNESS WHEREOF the parties have hereto set their hands the day and year
first above written.
SIGNED by ROBERT ALBERT SMEATON )
For and on behalf of ** ) /s/ Robert Albert Smeaton
** in the presence of )
SIGNED by RAYMOND CHIH CHUNG )
KWONG in the presence of ) /s/ Raymond Chih Chung Kwong
** CONFIDENTIAL TREATMENT REQUESTED
WITNESSED by the Board of Directors
Of **
TSANG KWOK KWONG )
Director ) /s/ Tsang Kwok Kwong
In the presence of )
ROBERT ALBERT SMEATON )
Director ) /s/ Robert Albert Smeaton
In the presence of )
MARK AARON EMALFARB )
Director ) /s/ Mark Aaron Emalfarb
In the presence of )
** CONFIDENTIAL TREATMENT REQUESTED