1
EXHIBIT 10.45
2
DATED THIS 2ND DAY OF JANUARY 2000
BETWEEN
TAN TIAN SIN
(NRIC No. 601110-04-5319)
CHEW ▇▇▇▇ ▇▇▇▇
(NRIC No. 640714-04-5418)
AND
TECHNOCHANNEL TECHNOLOGIES SDN BHD
(Company No. 426318-M)
---------------------------------------------------
SALE AND PURCHASE AGREEMENT
[relating to 13,334 ordinary shares of Ringgit Malaysia One
(RM1.00) only each in Pacific Office Supplies Sdn Bhd
(Company ▇▇. ▇▇▇▇▇▇-▇) ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Four Million Six Hundred and Sixty Six Thousand and
Six Hundred and Sixty Seven (RM4,666,667-00) only]
---------------------------------------------------
MESSRS PEI ANIZA & PARTNERS
ADVOCATES & SOLICITORS
BLOCK G, UNIT G605
PHILEO DAMANSARA 1, ▇▇ ▇, ▇▇▇▇▇ ▇▇/▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ JAYA
3
THIS AGREEMENT is made this 1st day of January 2000 between TAN TIAN SIN (NRIC
No. 601110-04-5319) and CHEW ▇▇▇▇ ▇▇▇▇ (NRIC NO. 640714-04-5418) both of No. 1,
Wisma MBG, Jalan PJS ▇▇/▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ Darul
Ehsan (hereinafter referred to as "the Vendors") of the one part and
TECNOCHANNEL TECHNOLOGIES SDN BHD (Company No. 426318-M) a company incorporated
in Malaysia and having its registered ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇ ▇-▇▇▇, Phileo
Damansara 1, No 9, ▇▇▇▇▇ ▇▇/▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ (hereinafter referred to as "the Purchaser") of the other part.
WHEREAS:-
(1) Pacific Office Supplies Sdn Bhd (Company No. 354391-M), a company
incorporated in Malaysia and having its registered office at No. 79M,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
(hereinafter referred to as "the Company") has an authorised share
capital of Ringgit Malaysia One Hundred Thousand (RM100,000.00) only
divided into One Hundred Thousand (100,000) ordinary shares of Ringgit
Malaysia One (RM1.00) each of which Twenty Thousand (20,000) ordinary
shares have been issued and are fully subscribed.
(2) The Company is presently involved in the business of selling stationery
and other related products.
(3) The Vendors are the registered and beneficial owner of Thirteen
Thousand Three Hundred Thirty-Four (13,334) ordinary shares of Ringgit
Malaysia One (RM1.00) each in the issued and paid-up capital of the
Company representing sixty six point sixty seven per centum (66.67%) of
the issued and paid-up capital of the Company (hereinafter referred to
as "the Sale Shares"). The respective shareholdings of the Vendors in
the Company are as follows:
(i) TAN TIAN SIN 10,000 shares (50%)
(ii) CHEW ▇▇▇▇ ▇▇▇▇ 10,000 shares (50%)
1
4
(4) The present directors of the Company (hereinafter referred to as "the
Existing Directors") are the persons whose names and addresses appear
in the First Schedule hereto.
(5) The Vendors are desirous of selling and the Purchaser is desirous of
purchasing the Sale Shares upon the terms and conditions and on the
basis of representations, warranties and undertakings hereinafter
contained.
(6) The financial position of the Company as at 31st day of December, 1999
(hereinafter called "the Accounts Date") is as indicated in the audited
Accounts of the Company annexed hereto and marked as Appendix I
(hereinafter referred to as "the Accounts") which Account shall be
subject to final adjustment on mutual agreement on completion of the
due diligence exercise.
NOW IT IS HEREBY AGREED AND DECLARED as follows:
1. DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires, the following
expressions shall have the following meanings:-
"Accounts" the audited balance sheet and profit account
of the Company as at the Accounts Date and
annexed hereto as Appendix I
"Accounts Date" the 31st December 1999;
"Agreement" this Agreement for the sale and purchase of
the Sale Shares, and any such modifications,
variations, amendments or additions, as the
Parties to this Agreement may agree in
writing from time to time;
"Acquisition Date" the date of this agreement i.e. 2nd January
2000
2
5
"Business" means the business of selling stationery and other
related products;
"Business Day" a day (excluding Saturday and Sunday) on which
banks are open for business in Malaysia;
"Business Records" means:
(a) all current marketing and customer files
and customer lists of the Company;
(b) service promotional descriptive sales and
application literature and other advertising
material;
(c) supplier lists; and
(d) all records of the Service Contracts.
"Companies Act" means the Malaysian Companies ▇▇▇ ▇▇▇▇ and all
regulations made thereunder;
"Company" means PACIFIC OFFICE SUPPLIES (Company No.
354397-M) a company incorporated in Malaysia and
having its registered office at No. 79M, ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
"Completion" means the day when the events specified in Clause
5.2 occur;
"Completion Date" from the date of this Agreement (or such later
date as the parties may agree); means a date
which is not later than nine (9) month(s)
3
6
"Conditions Precedent" means the conditions of sale referred to in
Clause 3 hereof:
"Employees" means the persons who are currently employed
by the Company for the purposes of the
Business and as listed in the Second Schedule
hereto:
"Encumbrance" included any mortgage, charge, pledge, lien
and any other encumbrance whatsoever;
"Liabilities" means all the liabilities of the business
outstanding as at the Accounts Date as
disclosed in the Accounts;
"Purchase Price" means the purchase price of the Sale Shares
as determined in accordance with Clause 4.1
of this Agreement;
"Purchaser's Solicitors: means MESSRS PEI ANIZA & PARTNERS Advocates
& Solicitors Block G, Unit G605, Phileo
Damansara 1, ▇▇. ▇, ▇▇▇▇▇ ▇▇/▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Jaya.
"Sale Shares: means all the Thirteen Thousand Three
Hundred Thirty-Four (13,334) issued and
fully paid shares of the Company owned by
the Vendors which are to be sold to the
Purchaser subject to the terms of this
Agreement;
"Service Agreements" means the several current contracts entered
into between the Company and the Employees;
"Tax" means all forms of tax whether of Malaysia
or elsewhere whenever imposed (including
without limitation tax, income tax, property
tax, sales tax, payroll tax,
4
7
withholding tax, profits tax, capital gains
tax, capital transfer tax, development tax,
development land tax, estate duty national
insurance tax, stamp duty, capital duty,
value added tax, custom or other import or
export duties) and all statutory,
governmental, state, provincial, local
governmental or municipal impositions duties
rates and levies and all penalties, charges,
costs and interest relating thereto:
"Warranties" means the warranties as set out in the Third
Schedule;
1.2 In this Agreement, unless the context otherwise requires:
(a) words denoting the singular number include the plural and
vice-versa;
(b) words denoting a gender include every gender;
(c) words denoting natural persons include bodies corporate and
unincorporated;
(d) reference to clause and schedules are to clauses and
schedules to this Agreement;
(e) references to any legislation or to any provision of
legislation shall include any modification or re-enactment of
that legislation or any legislative provision substituted
for, and all regulations and statutory instruments issued
under such legislation and or provision, headings to the
Clauses and Schedules of this Agreement are inserted for
convenience only and shall not affect the construction or
interpretation of this Agreement;
(g) where a word or a phrase is defined, other parts of speech
and grammatical forms of that word or phrase have
corresponding meanings;
5
8
(h) references to any party to this agreement or any other
agreement or instrument shall include the party's successors
and permitted assigns;
(i) references to any agreement or instrument shall include
references to such agreement or instrument as amended,
novated, supplemental, varied or replaced from time to time;
(j) references to Ringgit Malaysia or "RM" shall be taken as
referring to amounts in Malaysian currency; and
(k) all schedules and annexure to this Agreement and its recitals
and all certificates and other agreements delivered pursuant
to this Agreement shall form a part of this Agreement.
1.3 All warranties, representations, indemnities, covenants, agreements and
obligations given or entered into by more than one person are given or
entered into jointly and severally.
2. AGREEMENT FOR SALE
2.1 The Vendors shall sell and the Purchaser shall purchase the Sale
Shares for the consideration set out in Clause 4 hereof, free from all
charges, debentures, encumbrances or liens and with all rights,
benefits and advantages attached thereto including all rights to
dividends and other distributions declared made and paid as from the
Completion Date as hereinafter defined.
3. CONDITIONS OF SALE
3.1 It is hereby expressly agreed between the parties hereto that this
Agreement and the sale and purchase hereunder of Sale Shares in the
Company is subject to and conditional upon the following:
6
9
(i) the Vendors obtaining the approval of its board of directors
for the transfer of the Sale Shares from the Vendors to the
Purchaser or its nominee;
(ii) the Vendors delivering a certified true copy or extract of
such a resolution to the Purchaser on or before the Completion
Date;
(iii) completion of satisfactory due diligence; and
(iv) deposition of all relevant legal documentations as mentioned
under Clause 5.1 herein
4. CONSIDERATION
4.1 The total consideration payable by the Purchaser to the Vendors for
the Sale Shares shall be Ringgit Malaysia Four Million Six Hundred and
Sixty Six Thousand and Six Hundred and Sixty Seven (RM4,666,667-00)
only (hereinafter referred to as "the Purchase Price") and shall be
payable by the Purchaser nine (9) months after the Acquisition Date by
cash.
4.2 The parties hereby agree and confirm that in the event of any variation
of the value of the revenue and net tangible assets of the Company upon
completion of a satisfactory due diligence by more than three per
centum (3%) from the value of the revenue and net tangible assets of
the Company as the date of this Agreement, the Purchase Price as stated
in Clause 4.1 above shall be renegotiated.
There shall be no adjustment to the Purchase Price if such variation of
the revenue and net tangible assets of the Company is less than three
per centum (3%).
48. DEVELOPMENT OF AN E-COMMERCE WEBSITE
It is hereby agreed between the parties that the development and
execution of a complete office supplies E-Commerce Website shall be
undertaken and financed solely by the purchaser at no cost to the
company.
7
10
5. COMPLETION
5.1 DOCUMENTS
Notwithstanding any provisions to the contrary contained herein the
Vendors shall at anytime between execution of this Agreement and the
Completion Date deposit with the Purchasers Solicitors the following:-
5.1.1 Share Certificates of the Sale Shares together with the
relevant transfer forms duly executed for the same in favour of
the Purchaser by September 30th 2000;
5.1.2 letters of resignation of the Existing Directors of the Company
to take effect by September 30th 2000 without the payment of
any compensation or damages or any other payment of whatsoever
nature arising from loss of office;
5.1.3 a resolution in accordance with the Memorandum and Articles of
Association of the Company approving the transfer of the Sale
Shares from the Vendors to the Purchaser or its nominee or
nominees and the registration of such transfer to take effect
on the Completion Date subject only to the same being stamped
at the expense of the Purchaser;
5.1.4 a resolution of the respective Board of Directors of the
Vendors approving the sale and transfer of the Sale Shares to
the Purchaser;
5.1.5 a resolution in accordance with the Memorandum and Articles of
Association of the Company approving the appointments of the
nominees of the Purchaser to the Board of Directors of the
Company to take effect on the Completion Date;
5.2 COMPLETION
5.2.1 Completion of the sale and purchase of the Sale Shares shall
take place at the registered office of the Purchaser or at
other places as may be determined by the Purchaser on the
Completion Date whereupon:-
8
11
5.2.1.1 the Purchaser's Solicitors are hereby expressly or
irrevocably authorized to release all the documents
referred to under Clause 5.1 hereof to the
Purchaser; and
5.2.1.2 the Vendors shall cause the Company to give and
deliver to and the Purchaser shall take delivery of
the Business Records and the Service Contracts.
5.2.2 Concurrently on the Completion Date BUT SUBJECT ALWAYS to the
fulfilment of all the conditions of sale under Clause 3.1,
the Purchaser's Solicitors shall release the Purchase Price
to the Vendors Nine (9) months (i.e. September 30th 2000)
after the Acquisition Date.
5.2.3 Upon completion and satisfaction of the matters referred to
in Clause 5.2.1 and Clause 5.2.2, beneficial ownership of the
Sale Shares shall be vested on the Purchaser. However, the
sales of the shares shall be binding upon signing of this
agreement.
6. EMPLOYEES
6.1 It is hereby acknowledged by the Purchaser that after Completion the
Employees will continue to be employed by the Company in accordance
with the prevailing terms and conditions and without any change in
seniority of position.
7. PENDING COMPLETION
7.1 With effect from the date of the execution of this Agreement hereof
the Vendors hereby agree and undertake with the Purchaser:-
7.1.1 that the Vendors shall use their best endeavours to carry on
the business of the Company in a professional manner and
shall not carry out or omit to carry out any act which is or
will be detrimental to the business and affairs of the
Company;
9
12
7.1.2 that no amendment whatsoever be made to the Memorandum and
Articles of Association of the Company without the prior
written consent of the Purchaser.
7.1.3 that the Company shall not issue or allot shares or create or
issue any obligations or securities convertible into shares
whether fully paid or otherwise to any persons including the
Vendors themselves without the prior written consent of the
Purchaser.
7.1.4 that the Company shall not, (save and except expressly
provided by this Agreement) consolidate or subdivide any
shares, create any new class of shares, grant any options over
shares or any rights to subscribe for shares or debentures or
to convert any debentures or obligations into shares, alter
any of the rights attached to any shares, reduce any share
capital or otherwise re-organise or grant any rights in
respect of the share capital in any way without the prior
written consent of the Purchaser;
7.1.5 that the Company shall not (save and except as disclosed to
the Purchaser) in any way sell or dispose any part of its
undertaking, property or assets in any manner howsoever save
in the ordinary course of business without the prior written
consent of the Purchaser;
7.1.6 that the Company shall not (save and except in the ordinary
course of business or as disclosed to the Purchaser) enter
into any material or substantial transaction or incur any
material or substantial liability, whether actual or
contingent. For the purpose of this paragraph the term
"transaction" includes guarantees and indemnities;
7.1.7 that the Company will not without the consent of the Purchaser
in any way depart from the ordinary course of its day to day
business either as regards the nature or scope or manner in
conducting the same;
10
13
7.1.8 that the Company and all persons within the Vendors' control
shall not carry out or otherwise do or omit to do anything
which may cause or be likely to cause the licenses for the
operations of the business of the Company to be suspended,
withdrawn or jeopardise the renewal thereof;
7.1.9 that since the Accounts Date and save and except for the
dividend to be paid for the year ending December 31st 1999
amounting to fifty per centum (50%) of the audited retained
earnings as at December 31st 1999 no dividend have been
declared or paid and no distribution of capital made in
respect of share capital of the Company and no loan
(otherwise than in the ordinary course of the day business or
which is expressly provided by the terms of this Agreement)
or loan capital of the Company has been repaid in whole or in
part and before the Completion Date no such distribution made
and no loan (otherwise than in the ordinary course of day to
day business) or share or loan capital will be repaid in whole
or in part save with the prior written consent of the
Purchaser;
7.1.10 that the Company is the sole beneficial owner and has a good
and marketable title to all of the assets included in the
Accounts and to all assets acquired thereafter prior to the
Completion Date;
7.1.11 that the Company have not done or omitted to do anything
whereby any policy of insurance effected by it has or may
become void or voidable and the Company will keep and
maintain insurance cover in respect of its assets;
7.1.12 that the Vendors shall not, without the Purchaser's knowledge
and approval, on behalf of the Company or cause the Company
to enter into any contracts or obligations whatsoever or
incur any capital expenditure or grant any options and/or
enter into any agreement for the sale of shares of the
Company;
11
14
7.1.13 that the Company shall not borrow any money other than in the
ordinary and proper course of normal day to day business of
the Company, as carried on at the date of the Agreement; and
7.1.14 that the Company shall not make any material change to the
remuneration or benefits which are now payable to its
directors, officers or employees or any of them.
8. VENDORS' WARRANTIES
8.1 Subject to the matters specified herein and in the Accounts (which
matters the Vendors warrant to be true) and any matter or thing
hereafter done or omitted to be done at the request in writing or with
the approval in writing of the Purchaser, the Vendors hereby, to the
best of his knowledge, information and belief, warrants and represents
to the Purchaser in the terms set out in the Third Schedule hereto
(which paragraphs of the Third Schedule shall not be in any way
construed to be limited or restricted by reference or inference from
the terms of any other paragraphs in the Third Schedule or the
provisions of this Agreement) as terms and conditions of this Agreement
and that insofar as any of the said terms and conditions relate in
whole or in part to present or past matters of fact they shall be
deemed to constitute representations upon the faith of which the
Purchaser has entered into this Agreement.
8.2 The Vendors hereby warrants to the Purchaser that the warranties and
representations set out in the Third Schedule will to the best of his
knowledge, information and belief, be true as if given immediately
prior to Completion with reference to facts then existing as well as
at the date of this Agreement (where any matter occurs after execution
of this Agreement which will cause the warranties not to be true, the
Vendors shall immediately upon discovery of the same disclose to the
Purchaser).
8.3 The Vendors will forthwith prior to the Completion disclose in writing
any matter relating to the Company which becomes known to the Vendors
between the date of this Agreement and Completion which is inconsistent
with any of the said warranties or
12
15
representations or which is material to be known by any prudent
purchaser of the Sale Shares.
8.4 In the event of any breach or non-fulfilment of any of the said
warranties or representations whenever occurring, any breach or
non-fulfilment of a material nature thereof or upon the happening or
discovery of any event or circumstance which would render untrue or
misleading any of the said warranties or representations or any
warranty or representation of a material particular, the Purchaser
shall be entitled to the following (without prejudice to and in
addition to any remedies which the Purchaser may be entitled to in law
or otherwise) upon failure by the Vendors to remedy any of the said
breach or non-fulfilment within thirty (30) days of the written notice
given by the Purchaser to the Vendors:
8.4.1 If prior to Completion, to rescind this Agreement; or
8.4.2 alternatively, to proceed with completion.
8.5 The Vendors agree that notwithstanding any investigation of the
business assets and accounts of the Company made by or on behalf of the
Purchaser, the Vendors will indemnify the Purchaser and keep the
Purchaser harmless from and against any damages, deficiencies, losses,
costs, liabilities and expenses (including reasonable legal fees and
disbursements) resulting from or arising out of any breach of any of
the representations, warranties, covenants and agreements made by the
Vendors herein and from any claim for Tax against the Company arising
from the circumstances occurring prior to Completion.
8.6 All undertakings, warranties, representations, indemnities and other
obligations of whatsoever type given made or undertaken pursuant to
this Agreement shall subject always to the provisions of Clause 8.7
below (except for any obligations fully performed prior to or at the
Completion Date) continue in full force and effect notwithstanding
completion of this Agreement.
13
16
9. NOTICES
9.1 Any notice or other document to be given under this Agreement and all
other communications between the parties with respect to this Agreement
shall be in writing and may be given or sent by:
9.1.1 hand; or
9.1.2 registered post, or other fast postal service; or
9.1.3 telex, facsimile or other electronic media,
to the other party at the addresses or facsimile transmission numbers
set out below or such other person, addresses or facsimile transmission
numbers as either party may give notice of to the other:-
(i) For the Vendors:
No. 1, Wisma MBG, Jalan PJS ▇▇/▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ Darul Ehsan
Attention: ▇▇. ▇▇▇ TIAN SIN
(ii) For the Purchaser:
TECNOCHANNEL TECHNOLOGIES SDN BHD
▇▇▇▇▇ ▇, ▇▇▇▇ ▇-▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇,
▇▇ 9, ▇▇▇▇▇ ▇▇/▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: ▇▇ ▇.▇. ▇▇▇▇
9.2 All such notices and documents shall be in the English language.
9.3 Any notice or other document shall be deemed to have been duly served
upon and received by the addressee -
14
17
9.3.1 if delivered by hand, at the time of delivery;
9.3.2 if sent by registered post, or other fast postal service,
within three (3) days of despatch; and
9.3.3 in the case of telegram, telex or facsimile, on a business
day immediately following the date of the telegram, telex or
facsimile transmission, as the case may be, to be
authenticated by the receipt by the sender of a transmission
controlled report appearing on its face to emanate from the
sendees machine showing the answer-back code of the
recipient, the relevant number of pages, the correct
facsimile number of the recipient and the result of the
transmission being described as "O.K." or any equivalent
description indicating that the communication has been
properly transmitted.
9.4 In proving the giving of a notice or any other document under or in
respect of this Agreement it shall be sufficient to show;
9.4.1 in the case of registered post or other fast postal service,
that the notice or other document was contained in an
envelope which was duly addressed and posted; or
9.4.2 in the case of facsimile transmission or telex or other
electronic media was duly transmitted from the despatching
terminal as evidenced by a transmission report generated by
the despatching terminal.
9.5 No change in the address of the parties hereto as specified in
sub-clause 9.1 howsoever brought about shall be effective or binding
on either party unless that party has given to the other actual notice
of such change of address.
15
18
10. MISCELLANEOUS
10.1 Agreement to Subsist
10.1.1 Notwithstanding the completion of the sale and purchase of the Sale
Shares, the provisions warranties undertakings and agreements contained
herein shall continue thereafter to subsist for so long as may be
necessary for the purpose of giving effect to each and every of these
clauses in accordance with the terms hereof.
10.2 Assignment
10.2.1 The parties hereto shall not assign or otherwise part with their rights
and interests in this Agreement provided always that the Purchaser may
transfer the Sale Shares to any of the Purchaser's subsidiary or
related or associated companies as allowed under the Companies ▇▇▇
▇▇▇▇.
10.3 Entire Agreement
10.3.1 This Agreement (together with any documents referred to herein)
constitutes the entire agreement between the parties hereto and it is
expressly declared that no variation hereof shall be effective unless
made in writing.
10.4 Specific Performance
10.4.1 The parties hereto shall be entitled to specific performance of the
sale and purchase of the Sale Shares herein.
10.5 Rescission
10.5.1 Any right of rescission conferred upon a party herein shall be in
addition to and without prejudice to all other rights and remedies
available to it and no exercise or failure to exercise such a right
shall constitute a waiver by it of any such right or remedy.
16
19
10.6 COSTS
10.6.1 Each party to this Agreement shall pay their own solicitors
costs of and incidental to this Agreement and the sale and
purchase hereby agreed to be made and the Stamp Duty for the
transfer of shares and any other incidental cost thereto shall
be borne solely by the Purchaser.
10.7 EFFECT OF HEADINGS
10.7.1 The headings and sub-headings in this Agreement are inserted
for convenience only and shall not be considered in
construing the provisions of this Agreement.
10.8 SCHEDULES
10.8.1 The Schedules hereto shall have full effect and shall be read
as part and parcel of this Agreement as if they were
incorporated.
10.9 BINDING
10.9.1 THIS AGREEMENT shall be binding upon and inure for the
benefit of the respective permitted assigns and
successors-in-title of the parties.
10.10 GOVERNING LAW
10.10.1 The validity, performance, interpretation and effect of the
terms and conditions of this Agreement shall be governed by
and construed in all respects in accordance with the laws of
Malaysia and each party hereto shall duly submit to the non-
exclusive jurisdiction of the Malaysian Courts.
10.11 Any dispute arising out of or in connection with this
Agreement shall be referred to the jurisdiction of the Courts
of Malaysia.
17
20
IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals
the day and year first above written.
Signed by )
TAN TIAN SIN ) /s/ TAN TIAN SIN
(NRIC No. 601110-04-5319) )
)
CHEW ▇▇▇▇ ▇▇▇▇ ) /s/ CHEW ▇▇▇▇ ▇▇▇▇
(NRIC No. 640714-04-5418) )
in the presence of:- ) /s/ [Signature illegible]
Signed by )
)
for and on behalf of ) /s/ ▇.▇. ▇▇▇▇
TECHNOCHANNEL TECHNOLOGIES SDN BHD )
(Company No. 426318-M) )
in the presence of:- ) /s/ [Signature illegible]
21
THE FIRST SCHEDULE ABOVE REFERRED TO
(which is taken read and construed as an essential part of this Agreement)
THE DIRECTORS
TAN TIAN SIN (NRIC NO. 601110-04-5319)
CHEW ▇▇▇▇ ▇▇▇▇ (NRIC NO. 040714-04-5440)
19
22
THE SECOND SCHEDULE ABOVE REFERRED TO
(which is taken read and construed as an essential part of this Agreement)
THE LIST OF EMPLOYEES
Name Designation Length of Service
Sales Department
TAN TIAN KUAN Sales Manager 10 Years
TAN TIAN GOH Sales Manager 10 Years
TAN ENG CHUAN Sales Executive 5 years 9 months
▇▇▇ ▇▇▇▇ SUM Sales Executive 9 months
TAN ▇▇▇ ▇▇ Sales Executive 8 months
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Sales Executive 1 1/2 months
VOO TIAN FATT Sales Executive 1 month
TAN SIEW HWA Sales Coordinator 5 years 3 months
ROHAYAH BT DEGHAFAR Sales Coordinator 2 years 10 months
WANG ▇▇▇ ▇▇▇ Sales Coordinator 7 months
NORAMIZA BT ABD RAZAK Processing Clerk 6 months
Operation
TAN ▇▇▇▇ ▇▇▇▇ Operation Executive 10 months
Purchasing Department
CHEW FEI FEI Procurement Executive 4 years 5 months
TAN TECK MEE Purchasing Assistant 4 months
Admin Department
TAN OOI LING Sales Administrator 2 months
MUHAMMAD KHAIRUL B Despatch Clerk 8 months
CHE ▇▇▇▇▇
▇▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ Account Executive 2 years 3 months
BONG ▇▇▇ ▇▇▇▇ Account Clerk 3 years 3 months
Store Department
KUMAR A/L ARUMGAN Store Supervisor 3 years
MAH ▇▇ ▇▇▇ Store Assistant
CHANDRA SEGERAN A/L RENGIAH Store Supervisor 3 years 3 months
Van Driver
MURUGAN A/L KHRISHNAN Van Driver 4 years
▇▇▇▇▇▇ ABIDEEN BIN Van Driver 3 years 4 months
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ BIN AMAT Van Driver 2 years 7 months
▇▇▇▇▇ ▇▇▇▇▇▇ B MOHD SALLEH Van Driver 7 months
ABDULLAH SIDEK B AHMAD Van Driver 7 months
ZAIAZMI B ZAINUL ABIDIN Van Driver 7 months
CHANDRAN A/L PERIANICKEN Van Driver 3 months
ASAT BIN HARUN Van Driver 1 month
▇▇▇▇▇▇▇▇▇ A/L ▇▇▇▇▇▇▇▇▇▇ Van Driver
Attendant
RANJIT A/▇ ▇▇▇▇▇▇▇▇▇▇▇ Attendant 2 years 6 months
21
24
THE THIRD SCHEDULE ABOVE REFERRED TO
(which is taken read and construed as an essential part of this Agreement)
WARRANTIES AND REPRESENTATIONS
THE VENDORS
1. Vendors' Authority
(a) The Vendors have authority and power to enter into and perform
this Agreement.
(b) This Agreement constitutes valid and binding obligations of
the Vendors in accordance with its terms.
(c) There is no outstanding indebtedness or other liability
(actual or contingent) owing by the Company to the Vendors or
any director of or any person connected with the Vendors, nor
is there any indebtedness owing to the Company by such person.
(d) The Vendors warrant and represent that in the event there are
contingent liabilities, capital or burdensome commitments,
deferred taxation and any other liabilities arising from
contracts entered into by the Vendors with others which have
not been disclosed hereunder as at the Accounts Date, the
Vendors agree that they shall fully bear the same.
THE COMPANY
2. Sale Shares
(a) The Vendors are the registered and beneficial owner of the
number of Sale Shares and is entitled to sell and transfer the
full legal and beneficial ownership of the same to the
Purchaser.
22
25
(b) Subject to the Agreement, there is no option, right to
acquire, mortgage, charge, pledge, lien or other form of
security or encumbrances over or affecting any of the Sale
Shares or any of the paid up 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.
(c) The Sale Shares comprise sixty six point sixty seven percentum
(66.67%) of the registered capital of the Company and the
rights and interest in the Company.
3. Memorandum and Articles of Association
(a) The copy of the Memorandum and Articles of Association
provided to the Purchaser is accurate and complete in all
respects.
(b) The Company has complied with its Memorandum and Articles of
Association in all respects.
4. Options
Subject to this Agreement, there is no agreement or commitment
outstanding which accords to any person the right to call for any right
or interest in the Company.
5. Law
(a) The Company:
(i) is duly incorporated and organised and validly exist
in good standing under the laws of Malaysia and has
all the necessary power, authority and capacity to:
23
26
(1) own or otherwise hold its property and
assets (including, without limitations, the
property and assets shown in its balance
sheet); and
(2) carry on its business as presently
conducted; and
(ii) has conducted its business in all material respects
in accordance with all applicable laws and
regulations of Malaysia.
(b) There is no order, decree or judgment of any court or any
Governmental Agency in Malaysia or any foreign country
outstanding against the Company or which may have a material
adverse effect upon the assets or business of the Company.
6. Licences
All necessary licences, consents, permits and approvals:
(a) have been obtained by the Company to enable it to carry on its
business effectively in the manner which such business is now
carried on; and
(b) are valid and subsisting and there is no reason why any of
them will be suspended, cancelled or revoked.
ACCOUNTS AND RECORDS
7. Books and Records
All accounts, books, ledgers and financial and other records of the Company;-
(a) have been fully, properly and accurately maintained in all
material respects;
(b) are in the possession of or under the control of the Company;
and
24
27
(c) contain true and accurate records of all matters required by
law to be incorporated.
8. The Accounts
The Accounts:-
(a) have been prepared in accordance with the requirements of all
relevant statutes and approved accounting standards
consistently applied in Malaysia;
(b) show a true and fair view of the assets and liabilities of the
Company as at the Accounts Date and the profits of the Company
for the year ended on the Accounts Date;
(c) disclose and make proper provision or reserve for or note all
contingent liabilities, capital or burdensome commitments and
deferred taxation; and
(d) disclose and make full provision or reserve for all actual
liabilities.
9. Returns
All returns, particulars, resolutions and other documents required
under any legislation to be delivered on behalf of the Company to the
authorities responsible for regulating corporate entities in Malaysia
or to any other authority whatsoever have been properly made and
delivered.
BUSINESS
10. Business since the Accounts Date
10.1 Since the Accounts Date:-
25
28
(a) there has been no interruption or alteration in the nature,
scope or manner of the business which business of the Company
and such business has been carried on lawfully and in the
ordinary and proper course of business so as to maintain it as
a going concern;
(b) there has been no material adverse change in business and
there has been no damage or destruction affecting the
Company's business or its assets;
(c) the Company has not acquired, sold, transferred or otherwise
disposed of any asset of any nature or cancelled or waived or
released or discounted in whole or in part any debts or
claims, except in the ordinary and proper course of business;
(d) the Company has not knowingly waived or released any rights
which are of a material or substantial value;
(e) no distribution of capital has been declared, made or paid in
respect of any share of the Company; and
(f) the Company has not incurred or become subject to any
liability or obligation (absolute or contingent), except
current liabilities and obligations incurred under those
contracts entered into by it in the ordinary and proper course
of business.
11. Consequence of Purchase
The Company is not a party to, nor is it bound or affected by or
subject to, any statute, legislation, regulation, judgment, order,
decree or law which would be violated, contravened or under which
default would occur, as a result of the purchase of the Sale Shares by
the Purchaser or complied by the Company with the terms of this
Agreement, and such purchase or compliance will not:-
(a) result in the Company losing the benefit of any right or
privilege it presently enjoys;
26
29
(b) result in any present or future indebtedness of the Company
becoming due or capable of being declared due and payable prior
to its stated maturity; or
(c) give rise to or cause to become exercisable any right of
pre-emption.
12. Insurance
(a) All assets of the Company which are of an insurable nature have
at all times been and are insured in accordance with good
commercial practice.
(b) The Company has at all times been adequately insured against
accident, third party, public liability and other risks
normally covered by insurance.
(c) Nothing has been done or omitted to be done by or on behalf of
the Company which would make any policy of insurance void or
voidable or enable the insurers to avoid any claim made under
such policies of insurance.
(d) The Company has not suffered any uninsured extraordinary or
unusual losses nor waived any rights of material or substantial
value nor allowed any insurance to lapse.
(e) There are no existing circumstances which might lead to
liability under any such policies of insurance being avoided by
the insurers.
ASSETS
13. Charges
(a) The Company is the owner of and has good title to all assets
included in the Accounts.
27
30
(b) All assets which have been acquired by the Company since the
Accounts Date or after the Accounts Date are not subject to
any encumbrances or is the subject of any agreement or
commitment to give or create any encumbrances other than
those encumbrances specified in the Accounts.
(c) Since the Accounts Date, the assets of the Company have been
in the possession of or under the control of the Company.
14. Intellectual Property
(a) The Company has not disclosed to any person to whom
disclosure would be improper, of any of its know-how, trade
secrets, technical processes, lists of customers or
suppliers, or other confidential information.
(b) The Company is not using any processes which involve the
exercise of rights covered by patent or other rights of
third parties.
(c) The Company's activities do not infringe any intellectual
property rights of any third party.
CONTRACTS
15. General
The Company is not a party to:-
(a) any contract for hire or rent, hire-purchase or purchase by
way of sale or credit sale otherwise than in the ordinary and
proper course of business; and
(b) any other contract or instrument involving or likely to
involve obligations or liabilities which by reason of their
nature or magnitude ought reasonably to be made known to the
Purchase as intending Purchaser of the Sale Shares.
28
31
16. Powers of Attorney
There are no powers of attorney given by the Company which are currently in
force.
17. Insider Contracts
(a) There is no agreement or arrangement outstanding to which the
Company is a party and in which the Vendors or any Director or
any person connected with any of them is or has been
interested, whether directly or indirectly.
(B) The Company is not a party to, and its profits or financial
position have not been affected by any agreement or
arrangements which is not entirely on an arm's length nature.
EMPLOYEES
18. Disputes and Employees
There is no existing, threatened or pending industrial dispute
involving the Company and/or any of its employees and there is no
arrangement between the Company and any trade union or Organisation
representing any such employees.
TAX
19. Returns
The Tax returns which ought to have been made by or in respect of the
Company for any corporate income tax have been made and are up-to-date,
correct and have been made and filed are not the subject of any
dispute with the Inland Revenue or other appropriate authorities and
there is no circumstances which are likely to give rise to any such
dispute.
29
32
20. Provision
(a) The provision made on the Accounts are sufficient to cover all
Tax in respect of all accounting periods ended on or before
the Accounts Date for which the Company may at any time
hereafter become liable.
(b) Proper provision or reserve for deferred Tax in accordance
with generally accepted accounting principles and standards
has been made in the Accounts.
21. GENERAL
21. Accuracy of Information
(a) The Information provided in this Agreement and in the
accounts is true and accurate in all material respects.
(b) All written information given to the Purchaser and its
professional advisers by the officers or employees of the
Vendors or the Company, the Vendors' professional advisers and
the Company's advisers during the negotiations prior to this
Agreement was, when given, and remains (insofar as not
superseded by information subsequently supplied by the
Vendors) true and accurate in all material respects and all
documents supplied have been true and complete copies of such
documents.
30
33
APPENDIX I
(which is taken read and construed as an essential part of this Agreement)
THE ACCOUNTS
[***]
RM
[***] [***]
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
31