EXHIBIT 2.12
DATED THIS DAY OF 2000
BETWEEN
ADAPTEC MFG (S) PTE LTD
AND
ROXIO CI LTD
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TRANSFER OF ASSETS AGREEMENT
relating to the transfer of assets by Adaptec Mfg (S) Pte Ltd
in consideration of the allotment of shares in the
capital of Roxio CI Ltd
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THIS AGREEMENT is made on the day of 2000
BETWEEN
(1) ADAPTEC MFG (S) PTE LTD (Regn No. 00121/1987-N) ("Adaptec"), a company
incorporated in the Republic of Singapore with its registered office at
No. ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇);
AND
(2) Roxio CI Ltd (Regn No. ) ("Roxio"), a company incorporated in the
Cayman Islands with its registered office at (address)
WHEREAS
(A) Adaptec is a private limited company incorporated in the Republic of
Singapore and has at the date hereof the authorised share capital and
issued and paid-up share capital as set out in Schedule 1.
(B) Roxio is currently a 100% owned subsidiary of Adaptec and has at the
date hereof the authorised share capital and issued and paid-up share
capital as set out in Schedule 2.
(C) Adaptec is desirous of transferring its assets ("hereinafter referred
to as "SPG assets") as set out in Schedule 3 to its subsidiary, Roxio
and in consideration therefor, Roxio shall issue (NO. OF SHARES)
ordinary shares of US$1/- each in its capital to Adaptec as set out in
Schedule 4 upon the terms and subject to the conditions contained in
this Agreement.
IT IS HEREBY AGREED as follows:-
1. DEFINITIONS & INTERPRETATION
In this Agreement, unless the subject or context otherwise requires:-
1.1 the following words and expressions shall have the following
meanings:-
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"COMPLETION DATE" means or such other date as the parties
hereto may agree in writing;
"CONSIDERATION SHARES" means (NO. OF SHARES) ordinary shares
of US$1/- each in the capital of Roxio
credited as fully paid up to be allotted and
issued by Roxio to Adaptec as set out against
its name in Schedule 4;
"DIRECTORS" means the directors (including their
alternates) for the time being of Adaptec and
Roxio and "Director" shall mean any of them;
"SHAREHOLDERS" means the persons who are registered for the
time being as holders of the shares in the
Register of Members of Roxio and Adaptec
"US$" means United States dollar.
1.2 Any reference to "COMPLETION" shall mean completion of the
transfer of the assets as set out in Schedule 3 and the allotment
of the ordinary shares in the share capital of Roxio Cl, Ltd in
consideration thereof.
1.3 References to Recitals and Clauses are to recitals and clauses of
this Agreement and "Agreement" shall mean this Agreement.
1.4 The headings in this Agreement are for convenience only and shall
not affect the interpretation hereof.
1.5 Where applicable, words importing the singular include the plural
and vice versa, words importing any gender include every gender,
references to persons include bodies corporate and unincorporate
and references to time shall mean Singapore time.
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2. TRANSFER OF ASSETS
2.1 Subject to the terms and conditions of this Agreement, Adaptec
shall transfer its SPG assets to Roxio and Roxio hereby agrees to
issue to Adaptec, Consideration Shares free from all charges,
liens and other encumbrances and with all rights, benefits and
entitlements now or hereafter attaching thereto.
2.2 Roxio is not obliged to complete the allotment of the
Consideration Shares unless the transfer of SPG assets from
Adaptec is completed simultaneously.
3. CONSIDERATION
3.1 The consideration for the allotment of Consideration Shares shall
be the sum of US$(CONSIDERATION) being the fair market value of
the SPG assets of Adaptec.
3.2 The consideration for the Consideration Shares shall be satisfied
in whole by the allotment and issue by Roxio of the Consideration
Shares, credited as fully paid up to Roxio as set out in Schedule
3.
3.3 The Consideration Shares shall be allotted and issued on terms
that they will rank PARI PASSU in all respects with the existing
ordinary shares in the capital of Roxio at the date of allotment.
4. COMPLETION
4.1 Subject as hereafter provided, completion shall take place at the
office of Adaptec or such other place as the parties hereto may
agree in writing on the Completion Date.
4.2 Roxio shall, in consideration of the mutual convenants set out
hereinbefore, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, duly
execute in favour of Adaptec the share certificates in respect of
the Consideration Shares.
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4.3 Roxio shall:
(a) prior to or on completion, procure the necessary
approval of its Directors/Shareholders in accordance
with the requirements of the Laws of Cayman Islands of
its entry into this Agreement for the allotment and
issue of the Consideration Shares credited as fully
paid-up by Adaptec as set out in Schedule 3 as
consideration for the aforesaid allotment;
(b) on completion, issue to Adaptec the Consideration
Shares as set out in Schedule 4;
(c) on completion, deliver to Adaptec, the relative share
certificate relating to the Consideration Shares; and
(d) on completion, deliver to Adaptec such waivers,
consents, approvals and other documents as may be
necessary to enable Adaptec to be registered as the
holder of the Consideration Shares.
5. DURATION OF THIS AGREEMENT
All provisions of this Agreement shall not, so far as they have not
been performed at completion, be in any respect extinguished or
affected by completion or by any other event or matter whatsoever and
shall continue in full force and effect.
6. NO ASSIGNMENT
Each of the Parties hereto shall not assign its rights and obligations
under this Agreement without the prior written consent of the other
Party.
7. COSTS AND EXPENSES
All costs and expenses (including without limitation, legal or other
professional fees, taxes and stamp duties) incurred in the preparation,
negotiation and execution of this Agreement and related documents shall
(whether or not there is completion), be borne by the respective
parties accordingly.
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8. NOTICES
Any notice or request to be given, made or served for any purpose under
this Agreement shall be in writing and given, made or served by sending
the same by prepaid post or delivering it by hand or sending it by
facsimile transmission addressed to the parties at their respective
addresses set out on the execution page or as shall have been notified
(in accordance with this Clause) to the other party hereto for the
purposes of this Clause and shall be deemed to have been duly served
(if by hand or made by facsimile transmission) immediately or (if
served by post) 7 days after posting and in proving the same it shall
be sufficient to show that the transmission report confirming receipt
or the envelope containing the same was duly addressed stamped and
posted (as the case may be).
9. PREVIOUS AGREEMENTS
9.1 ENTIRE AGREEMENT : This Agreement and the documents referred to
herein are in substitution for all previous agreements, covenants
or undertakings, whether oral or in writing, between all or any of
the parties hereto and contain the whole agreement between the
parties relating to the subject matter of this Agreement.
9.2 AMENDMENTS : No amendment or variation of this Agreement shall be
effective unless in writing and signed by or on behalf of each of
the parties hereto.
10. REMEDIES
No remedy conferred by any of the provisions of this Agreement is
intended to be exclusive of any other remedy which is otherwise
available at law, in equity, by statute or otherwise, and each and
every other remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law,
in equity, by statute or otherwise. The election of any one or more of
such remedies by any of the parties hereto shall not constitute a
waiver by such party of the right to pursue any other available
remedies.
11. SEVERANCE
If any provision of this Agreement or part thereof is rendered void,
illegal or unenforceable by any legislation to which it is subject, it
shall be rendered void, illegal or unenforceable to that extent and no
further.
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12. ARBITRATION AND APPLICABLE LAW
12.1 Any dispute arising out of or in connection with this contract,
including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by
arbitration in Singapore in accordance with the Arbitration Rules
of Singapore International Arbitration Centre ("SIAC Rules") for
the time being in force which rules are deemed to be incorporated
by reference to this clause.
IN WITNESS WHEREOF this Agreement has been entered into the day and year first
above written.
SIGNED by )
)
for and on behalf of )
ADAPTEC MFG (S) PTE LTD )
in the presence of:- )
)
SIGNED by )
)
for and on behalf of )
ROXIO CI LTD )
in the presence of:- )
)
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SCHEDULE 1
AUTHORISED, ISSUED AND PAID-UP CAPITAL OF
ADAPTEC MFG (S) PTE LTD
Authorised Capital : S$500,000 divided into 500,000 ordinary
shares of S$1.00 each
Issued Capital : S$250,000 divided into 250,000 ordinary
shares of S$1.00 each
Paid-up Capital : S$250,000 divided into 250,000 ordinary
shares of S$1.00 each
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SCHEDULE 2
AUTHORISED, ISSUED AND PAID-UP CAPITAL OF ROXIO CI, LTD
Authorised Capital : US$50,000 divided into 50,000 ordinary
shares of US$1.00 each
Issued Capital : US$10 divided into 10 ordinary
shares of US$1.00 each
Paid-up Capital : US$10 divided into 10 ordinary
shares of US$1.00 each
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SCHEDULE 3
ASSETS TO BE TRANSFERRED BY ADAPTEC AS CONSIDERATION FOR SHARES
ALLOTTED IN ROXIO
ASSETS FAIR MARKET VALUE.
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a) 100% equity of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
GmbH.
b) (To provide full description of the SPG IP)
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SCHEDULE 4
CONSIDERATION SHARES TO BE ALLOTTED AND ISSUED TO ADAPTEC
NO. OF SHARES SHARE CERTIFICATES NOS.
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(To advise)
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