EXHIBIT 10.37
EXECUTION COPY
Dated 18 September 2004
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS LIMITED (1)
HTI (BVI) HOLDINGS LIMITED (2)
----------------
SALE AND PURCHASE AGREEMENT
relating to
PEARL CHARM LIMITED
----------------
THIS AGREEMENT is made the 18th day of September 2004
BETWEEN:
1. ▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS LIMITED, a company incorporated with limited
liability in Hong Kong whose registered office is at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (the "Vendor"); and
2. HTI (BVI) HOLDINGS LIMITED, a company incorporated with limited liability
in the British Virgin Islands whose registered office is at P. O. Box 975,
Offshore Incorporations Centre, Road Town, Tortola, the British Virgin
Islands (the "Purchaser").
WHEREAS:-
A. PEARL CHARM LIMITED (the "Company") (Registration Number 379843) is a
company incorporated under the laws of the British Virgin Islands with
limited liability, further particulars of which are set out in Schedule 1.
B. The Company holds interest in the Group Companies, as shown in structure
chart set out in Schedule 2.
C. The Vendor is the beneficial owner and registered holder of the Sale Share.
D. The Vendor wishes to sell to the Purchaser, and the Purchaser wishes to
purchase from the Vendor, the Sale Share on the terms and subject to the
conditions set out herein.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement (including the Recitals and the Schedules), the words and
expressions set out below shall have the respective meanings attributed to
them below unless the context otherwise requires:-
"Business Day" a day on which banks are open for business in Hong Kong
(excluding Saturday or Sunday);
"Completion" completion of the sale and purchase of the Sale Share
in accordance with the terms and conditions of this
Agreement;
"Consideration" US$1.00;
"Group Companies" the Company and its subsidiaries and associated
companies;
Page 1 of 10
"Hong Kong" the Hong Kong Special Administrative Region of the
People's Republic of China;
"Sale Share" one share of US$1.00 in the Company; and
"US$" United States dollars, the lawful currency of the
United States of America.
1.2 Unless the context otherwise requires, words importing the singular only
shall include the plural and vice versa and words importing natural persons
shall include corporations and unincorporated associations and vice versa.
1.3 The descriptive headings contained in this Agreement are for the purpose of
convenience only and do not form part of and shall not affect the
construction of this Agreement or any part thereof.
1.4 References to Clauses and Schedules are to the clauses of and the schedules
to this Agreement and references to sub-clauses, paragraphs and
sub-paragraphs are to sub-clauses of the Clauses, paragraphs of the
sub-clauses and sub-paragraphs of the paragraphs where they respectively
appear.
1.5 Reference to any statute or statutory provision shall where the context so
admits or requires be construed as reference to those provisions as
respectively amended, consolidated, extended, modified or re-enacted from
time to time, and shall include any other order, regulations, instruments
or other subordinate legislation made under the relevant statute.
1.6 The Schedules form an integral part of this Agreement and shall have the
full force and effect as if expressly set out in the body of this Agreement
and any reference to this Agreement shall, unless the context otherwise
requires, include the Schedules.
2. SALE AND PURCHASE
2.1 Upon and subject to the terms and conditions of this Agreement, the Vendor
as legal and beneficial owner of the Sale Share, shall sell or procure the
sale of, and the Purchaser shall purchase, the Sale Share free from all
claims, charges, liens, options, encumbrances and equities of any kind
whatsoever but together with all rights attached, accrued or accruing
thereto and all dividends and distributions declared, made or paid or
agreed to be made or paid thereon after the date hereof.
2.3 The total consideration for the sale of the Sale Share shall be an amount
equal to US$1.00. Payment of the Consideration shall be made by the
Purchaser by wire transfer or such other way as the parties may agree.
Page 2 of 10
3. COMPLETION
3.1 Completion shall take place simultaneously with the signing of this
Agreement at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ or at
such other place or time as the parties hereto may agree, when all (but not
part only) of the businesses set out in Clauses 3.3 to 3.4 shall be
transacted.
3.2 On or before Completion, the Vendor shall procure that a board meeting of
the Company is held at which resolutions shall be passed approving the
registration of the transfer of the Sale Share to the Purchaser.
3.3 At Completion, the Vendor shall deliver or procure to be delivered to the
Purchaser:
(a) share certificate for the Sale Share in the name of the Vendor or its
nominee;
(b) instrument of transfer executed by the Vendor in relation to the Sale
Share in favour of the Purchaser;
(c) a certified extract of the resolutions of the board of directors of
the Company referred to in Clause 3.2; and
(d) a certified extract of its board (and, if required, shareholders')
resolutions approving the execution of this Agreement and such other
documents and deeds as may be required relating to the transactions
contemplated hereby.
3.4 At Completion, the Purchaser shall:
(a) pay to the Vendor the Consideration; and
(b) deliver or procure to be delivered to the Vendor such documents and
deeds as may be required relating to the transactions contemplated
hereby.
4. VENDOR'S WARRANTIES
4.1 The Vendor hereby warrants to the Purchaser that:
(i) the Vendor being the legal and beneficial owner of the Sale Share is
entitled to sell and transfer the Sale Share and pass full legal and
beneficial ownership thereof to the Purchaser free from all claims,
charges, liens, options, encumbrances and equities of any kind
whatsoever;
(ii) the Vendor has the power and authority to enter into this Agreement,
and to perform its obligations hereunder and enter into all
transactions contemplated by this Agreement and all necessary
corporate and other action has been taken to authorise the execution,
delivery and performance by it of this Agreement and the documents
herein contemplated;
(iii) the execution and delivery of, and the performance by the Vendor of
its
Page 3 of 10
obligations under this Agreement will not result in a breach of any
provision of the memorandum or articles of association of the Vendor
or any Group Company;
(iv) this Agreement constitutes and when executed will constitute valid,
legal and binding obligations on the part of the Vendor in accordance
with its terms;
(v) the Sale Share represents the entire issued and allotted share capital
of the Company and is fully paid up;
(vi) no indebtedness (actual or contingent) is outstanding between the
Vendor and each of the Group Companies; and
(vii) the information contained in Schedules 1 and 2 is true and accurate.
4.2 The Vendor shall forthwith notify the Purchaser upon becoming aware of any
event which is expected to cause any of the Vendor's warranties in Clause
4.1 to be incorrect, misleading or breached in any material respects.
4.3 The Vendor's warranties set out in each paragraph of Clause 4.1 shall be
separate and independent and save as expressly provided shall not be
limited by reference to any other paragraph or anything else in this
Agreement
5. PURCHASER'S REPRESENTATIONS AND WARRANTIES
5.1 The Purchaser hereby represents and warrants to the Vendor that:
(a) the Purchaser has the power and authority to enter into this
Agreement, and to perform its obligations hereunder and enter into all
transactions contemplated by this Agreement and all necessary
corporate and other action has been taken to authorise the execution,
delivery and performance by it of this Agreement and the documents
herein contemplated;
(b) the execution and performance of this Agreement and the documents
herein contemplated do not violate any applicable law, rule or
regulation to which the Purchaser is subject; and
(c) this Agreement constitutes and will constitute valid, legal and
binding obligations on its part in accordance with its terms.
5.2 The Purchaser shall forthwith notify the Vendor upon becoming aware of any
event which is expected to cause any of the Purchaser's warranties in
Clause 5.1 to be incorrect, misleading or breached in any material
respects.
5.3 The Purchaser's warranties set out in each paragraph of Clause 5.1 shall be
separate and independent and save as expressly provided shall not be
limited by reference to any other paragraph or anything else in this
Agreement.
Page 4 of 10
6. FURTHER ASSURANCE
Subject to and notwithstanding Completion, each party agrees with and
undertakes to the other party that at any time and from time to time upon
the written request of any other party, such party will:
(a) promptly and duly execute and deliver any and all such further
instruments and documents and do or procure to be done all and any
such acts or things as the other party may reasonably deem necessary
in obtaining the full benefits of this Agreement and of the rights and
ownership herein granted; and
(b) do or procure to be done each and every act or thing which the other
party may from time to time reasonably require to be done for the
purpose of enforcing the other party's rights under this Agreement.
7. CONFIDENTIALITY
7.1 Each party undertakes that it shall not reveal, and shall cause its
shareholders, directors, senior executives, employees and agents not to
reveal, to any third party any information concerning the transactions
contemplated hereunder and/or the contents hereof (collectively,
"Confidential Information") without the prior written approval of the other
party hereto.
7.2 Nothing in this Section 7 shall prevent a party hereto from using or
disclosing any Confidential Information which (a) is already known by such
party at the time it is disclosed to it; (b) has been rightfully received
by such party from a third party without a breach of an obligation of
confidentiality; (c) is in the public domain through no wrongful act of
such party; (d) is independently developed by such party without use,
directly or indirectly, of the Confidential Information; (e) is required to
be disclosed by applicable law, regulation or legal process or by judicial
order; or (f) is released in connection with the proposed spin off and
listing of ▇▇▇▇▇▇▇▇▇ Telecommunications International Limited.
7.3 Notwithstanding anything contained in this Agreement, either party
acknowledges and agrees that the other party may be required by law or any
competent regulatory body (including but without limitation to The Stock
Exchange of Hong Kong Limited and the Securities and Futures Commission) to
issue time sensitive and/or urgent announcements relating to this Agreement
or matters contemplated under this Agreement. Either party shall procure to
be provided to the other party a copy of each drafts of such time sensitive
and/or urgent announcements promptly, and shall consider in good faith any
comments provided to it in a timely manner by the other party to the extent
reasonably practicable within the time frame stipulated by law or by the
relevant competent regulatory body.
8. ENTIRE AGREEMENT
Page 5 of 10
8.1 This Agreement together with all other documents which are referred to in
this Agreement as being required by its terms to be entered into by the
parties or any of them in connection with this Agreement set out and
constitute the entire agreement and understanding between the parties
relating to the transactions hereby contemplated and supersede any previous
or contemporaneous drafts, representations, warranties, promises,
assurances, arrangements, discussions, negotiations, agreements or
undertakings relating thereto whether written or oral and no party shall
rely on any representations or warranties except those expressly stated
herein.
8.2 No purported alteration or variation of this Agreement shall be effective
unless it is in writing, refers specifically to this Agreement and is duly
executed by each of the parties hereto.
9. ASSIGNABILITY
This Agreement shall enure for the benefit of successors of the respective
parties hereto but shall not be assignable.
10. NOTICES
10.1 Any notice or other communication given or to be given pursuant to this
Agreement shall be in writing sent or delivered to the party at the address
or facsimile number as set out below or as may be notified by such party to
the other:-
Vendor:-
Address : ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Attention : Company Secretary
Fax no. : (▇▇▇) ▇▇▇▇ ▇▇▇▇
Purchaser:-
Address : ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Attention : Company Secretary
Fax no. : (▇▇▇) ▇▇▇▇ ▇▇▇▇
10.2 Any notice or other communication shall be deemed to have been received if
sent by facsimile, on the date of transmission, or if delivered personally,
when delivered, or if sent by post, 7 days if overseas and 48 hours if
local after the date of posting.
10.3 Reference in Clause 10.1 to writing shall include a notice or communication
by facsimile.
Page 6 of 10
11. COSTS AND EXPENSES
Each party shall bear its own costs and expenses in relation to the
negotiations leading up to the sale and purchase of the Sale Share and to
the preparation, execution and carrying into effect of this Agreement and
all other documents referred to in it which relate to the sale and purchase
of the Sale Share. The Vendor confirms that no expense of whatever nature
relating to the sale and purchase of the Sale Share has been or is to be
borne by the Company.
12. COUNTERPARTS
12.1 This Agreement may be executed in any number of counterparts, and by the
parties on separate counterparts, but shall not be effective until each
party has executed at least one counterpart.
12.2 Each counterpart shall constitute an original of this Agreement, but all
the counterparts shall together constitute but one and the same instrument.
13. INVALIDITY
Each provision of this Agreement is severable and distinct from the others
and if at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any jurisdiction,
that shall not affect or impair:-
(a) the legality, validity or enforceability in that jurisdiction of any
other provision of this Agreement; or
(b) the legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this Agreement.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and the Purchaser hereby submits to the exclusive
jurisdiction of the Hong Kong courts.
Page 7 of 10
IN WITNESS whereof this Agreement has been duly executed on the date first above
written.
SIGNED by ▇▇▇▇▇ ▇▇▇▇ )
for and on behalf of )
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS ) /s/ ▇▇▇▇▇ ▇▇▇▇
LIMITED )
In the presence of:- )
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇
--------------------------------------
SIGNED by ▇▇▇▇ ▇▇▇▇ )
for and on behalf of ) /s/ ▇▇▇▇ ▇▇▇▇
HTI (BVI) HOLDINGS LIMITED )
In the presence of:- )
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Page 8 of 10
Schedule 1
Particulars of Pearl Charm Limited
1. Date of Incorporation : 31 March 2000
2. Place of Incorporation : British Virgin Islands
3. Incorporation number : 379843
4. Address of Registered Office : ▇.▇. ▇▇▇ ▇▇▇
Offshore Incorporations Centre, Road Town
Tortola, British Virgin Islands
5. Business : Investment holding
6. Authorised Share Capital : US$50,000 divided into 50,000 shares of
US$1.00 each
7. Issued Share Capital : US$1
8. Shares held as follows :
Registered Holder Beneficial Owner No. of Shares Held
----------------- ---------------- ------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 1
Telecommunications Telecommunications
Limited Limited
9. Directors : ▇▇▇▇▇ ▇▇▇▇
Chan ▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Sng
10. Secretary : ▇▇▇▇▇ ▇▇▇▇
11. Auditors : PricewaterhouseCoopers
12. Financial Year End Date : 31 December
13. Outstanding Mortgages/Charges :
Date Instrument Property Mortgaged/Charged Amount Secured
---- ---------- -------------------------- --------------
NIL
Page 9 of 10
Schedule 2
Group Companies
No. Company Name Pearl Charm's % Interest
--- ------------ ------------------------
1. Widcombe Limited 100%
2. Wellington Gardens Limited 100%
3. ▇▇▇▇▇▇▇▇▇ Telecommunications Paraguay S.A 100%
Page 10 of 10