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EXHIBIT 3
DATED THE 28TH DAY OF SEPTEMBER 2000
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OEI HONG LEONG
and
CHIP LIAN INVESTMENTS (HK) LIMITED,
CALISAN DEVELOPMENTS LIMITED
and
SANION ENTERPRISES LIMITED
and
GREAT DECISION LIMITED
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AGREEMENT
for the sale and purchase of shares in
China Internet Global Alliance Limited
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THIS AGREEMENT is made on the 28th day of September 2000.
BETWEEN:
1. OEI HONG LEONG (HKID Card No. D076875(9)) of 52nd Floor, Bank of China
Tower, 1 Garden Road, Central, Hong Kong (the "Vendor Guarantor");
2. CHIP LIAN INVESTMENTS (HK) LIMITED, CALISAN DEVELOPMENTS LIMITED and
SANION ENTERPRISES LIMITED, whose principal place of business is at 2nd
Floor, Bank of China Tower, 1 Garden Road, Central, Hong Kong
(collectively the "Vendor"); and
3. GREAT DECISION LIMITED, a company incorporated at P.O. Box 957,
Offshore Incorporation Centre, Road Town, Tortola, British Virgin
Islands whose place of business is at 31st Floor, Paul Y. Centre, 51
Hung To Road, Kwun Tong, Kowloon, Hong Kong (the "Purchaser").
WHEREAS:
(A) China Internet Global Alliance Limited (the "Company") is a public
company incorporated under the laws of Hong Kong and has an authorized
share capital of HK$800,000,000 divided into 800,000,000 shares of
HK$0.10 each, 4,609,789,420 of which have been issued and are fully
paid or credited as fully paid. The whole of the issued share capital
of the Company is listed on The Stock Exchange of Hong Kong Limited
(the "Stock Exchange").
(B) The Vendor Guarantor, through his beneficial ownership of the Vendor,
owns 2,133,213,585 shares of the Company equivalent to approximately
46.27% of the entire issued share capital of the Company.
(C) The Vendor has agreed to sell to the Purchaser an aggregate of
804,400,000 shares of the Company ("the Sale Shares") beneficially
owned by it upon the terms and conditions set out herein.
(D) The Purchaser has agreed to purchase the Sale Shares in reliance upon
the representations, undertakings, warranties and indemnities in this
Agreement and otherwise in accordance with the terms and subject to the
conditions set out in this Agreement.
(E) The Purchaser is a private company beneficially owned by Paul Y. - ITC
Construction Holdings Limited ("Paul Y."). Paul Y. is a public company
listed on the Stock Exchange.
(F) By an agreement dated 26th September 2000 between the Vendor Guarantor,
the Vendor and Powervote Technology Limited as the purchaser
("Powervote") and a supplemental agreement dated 28th September 2000
between the same parties (collectively the "Hanny Agreement"), the
Vendor Guarantor has procured the Vendor to sell to Powervote
532,600,000 shares of the Company ("Hanny's Shares"). By an agreement
dated
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28th September 2000 (the "Hutch Agreement") between Namble Limited
as the vendor ("Namble") and Powervote as the purchaser, Namble
has agreed to sell to Powervote 271,800,000 shares of the Company
("Hutch's Shares").
AND NOW IT IS HEREBY AGREED as follows:
1. CONDITIONS PRECEDENT AND THE SALE AND PURCHASE
1.1 Completion of this Agreement shall be conditional upon clearance from
the Securities and Futures Commission that a general offer will not be
required to be made by the Purchaser or Powervote in respect of all the
shares of the Company apart from the Sale Shares, Hanny's Shares and
Hutch's Shares and the Stock Exchange not having notified the Company
that its listing will or may be withdrawn at, on or as a result of
completion of this Agreement, the Hanny Agreement or the Hutch
Agreement save for the reason that there will be insufficient public
interests or holding of the shares of the Company under Chapter 8 of
the Listing Rules.
1.2 In the event of the said conditions in Clause 1.1 not being satisfied
by 25th October 2000, then the provisions of this Agreement shall
forthwith terminate and cease to be of effect and save as aforesaid no
party hereto shall have any further liability under or pursuant to the
provisions of this Agreement provided that such termination shall be
without prejudice to the rights of the parties hereto in respect of
this Agreement occurring prior to such termination.
1.3 On and subject to the terms and conditions contained in this Agreement,
the Vendor hereby agrees to sell as beneficial owner to the Purchaser
and the Purchaser, relying on the representations warranties,
undertakings and indemnities made and given by the Vendor under this
Agreement, agrees to purchase from the Vendor the Sale Shares free from
all claims, charges, liens, encumbrances, equities and third party
rights and together with all rights attached thereto and all dividends
and distributions declared, paid or made in respect thereof after the
date hereof.
1.4 Subsequent to the Satisfaction of the conditions precedent set out in
Clause 1.1, the Vendor and the Vendor Guarantor shall undertake to
place down (after deduction of the sale of the Hanny's Shares) the
remaining 796,213,585 shares of the Company to independent third
parties on or prior to the Completion Date.
2. PURCHASE CONSIDERATION
2.1 The purchase consideration for the sale of the Sale Shares as mentioned
above shall be HK$643,520,000 representing HK$0.80 per Sale Share.
2.2 The Purchaser shall, upon signing of this Agreement, pay a deposit of
HK$77,432,000 ("the Deposit") to Winthrop, Stimson, Putnam & Roberts as
escrow agent ("Escrow Agent"). In the event that any of the conditions
precedent shall not be satisfied on or before 25th October 2000, the
Purchaser may by notice in writing rescind this Agreement and the
Escrow Agent shall refund the Deposit to the Purchaser whereby this
Agreement shall terminate and no parties shall have any liability
towards each other. In the event
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that the said conditions in Clause 1.1 have been satisfied and the
Purchaser cannot complete this transaction, the Deposit shall be
forfeited by the Vendor absolutely.
3. COMPLETION
3.1 Completion of the sale and purchase of the Sale Shares shall take place
on or before the second business day after the conditions set out in
Clause 1.1 have been fulfilled or such other date as the parties hereto
may mutually agree in writing provided that on completion date the
conditions set out in Clause 1.1 shall have been fulfilled (the
"Completion Date").
3.2 Completion of the sale and purchase of the Sale Shares shall take place
in the office of the Vendor's principal place of business or elsewhere
as may be mutually agreed in writing by the parties hereto when the
following business will be simultaneously transacted.
(a) The Purchaser shall deliver to the Vendor:
(i) banker's draft for HK$244,328,000 which together with
the Deposit being 50% of the purchase consideration
of the Sale Shares; and
(ii) a promissory note of HK$321,760,000 being the balance
of the purchase consideration of the Sale Shares to
be issued in favour of the Vendor and secured by the
Sale Shares and guaranteed by Paul Y., such
promissory note shall carry an interest rate of 7
1/2% per annum for a period of six (6) months.
(b) The Vendor shall deliver to the Purchaser or its nominee(s)
the following:
(i) sold note(s) (if any, in so far as relevant) and
instrument(s) of transfer in favor of the Purchaser
and/or its nominee(s) in respect of the Sale Shares
and shares of the Subsidiaries not registered in the
name of the Company all duly executed by the Vendor
or its nominee(s);
(ii) original certificates in respect of the Sale Shares
(or confirmation by CCASS);
(iii) a banker's draft drawn in favor of the Hong Kong SAR
Government for half share of the estimated ad valorem
stamp duty payable under the Stamp Duty Ordinance in
respect of the sold note(s) and instrument(s) of
transfer in respect of the Sale Shares;
(iv) such other documents as may be required to give a
good and effective transfer of title to the Sale
Shares to the Purchaser and/or its nominee(s) and to
enable it/them to become the registered holder(s)
thereof; and
(v) all statutory books, certificates of incorporation,
common seals, records and books of accounts of the
Company and its subsidiaries (the "Group").
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(c) The Vendor will cause a meeting of the board of directors of
each of the Company and the subsidiaries (if applicable) to be
held at which resolutions shall be passed to:
(i) appoint such persons as the Purchaser may nominate as
directors and secretaries of the Company and the
subsidiaries (if applicable) all to take effect from
the Completion Date;
(ii) amend all banking authorisations, instructions and
mandates of the Group in such manner as the Purchaser
may require, with effect from the effective date of
the changes under sub-paragraph (i) above; and
(iii) approve (subject to stamping) such transfers of the
Sale Shares and shares of the Subsidiaries and the
registration of the relevant shares in the name of
the Vendor or its nominee(s) as contemplated in
Clause 3.2(b)(i).
(e) The Purchaser will:
(i) produce for inspection by the Vendor (if and in so
far as relevant) the bought notes in respect of the
Sale Shares duly executed by the Purchaser and/or its
nominee(s) in compliance with the Stamp Duty
Ordinance; and
(ii) procure forthwith (if and in so far as relevant) the
stamping of the bought and sold notes and the
instrument(s) of transfer in respect of the Sale
Shares, and as soon as practicable thereafter present
the said instrument(s) of transfer together with the
share certificates in respect of the Sale Shares to
the Company for registration of the transfer at the
cost of the Purchaser.
3.3 The transactions described in Clause 3.2 (other than 3.2(e)(ii)) shall
take place at the same time so that in default of the performance of
any such transactions the other party shall not be obliged to complete
the sale and purchase aforesaid (without prejudice to any further legal
remedies).
3.4 The Vendor and the Vendor Guarantor jointly and severally undertake to
the Purchaser on demand to pay to the Purchaser or as it may direct an
amount equal to 50% of the amount by which the ad valorem stamp duty
assessed by the Commissioner of Stamp Duty on the sale and purchase of
the Sale Shares exceeds that estimated for the purpose of Clause
3.2(b)(iii).
4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
4.1 The Vendor and the Vendor Guarantor hereby jointly and severally
represent and warrant to and undertake with the Purchaser that the Sale
Shares are fully paid up and free from all lien, charge, encumbrance,
rights of pre-emption or other equities or third party rights of any
nature whatsoever on, over or affecting any of the Sale Shares and no
claim has been made by any person to be entitled to any of the
foregoing.
4.2 The unaudited consolidated interim financial statements of the Company
for the six (6) months period ended the 30th June 2000 announced on
19th September 2000 ("Schedule A") are complete and accurate, and show
a true and fair view of the affairs of
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financial position of the Company for the relevant period and are in
accordance with the generally accepted accounting principles, standards
and practices in Hong Kong.
4.3 The cash position of the Company as at the 28th August 2000 ("Schedule
B") which is $1,111,962,748 ("the Cash Position") is true and accurate
and reflect the true fiscal situation of the Company and there will be
no material adverse change to the Cash Position of the Company on
Completion Date. It is agreed that a fluctuation of more than 1% of the
Cash Position will be considered as a material adverse change.
4.4 From the date of this Agreement until the Completion Date, the Vendor
and the Vendor Guarantor (save as otherwise contemplated in this
Agreement) shall jointly and severally procure that (save with the
prior consent of the Purchaser and such consent not be unreasonably
withheld) none of the companies in the Group will
(a) issue or agree to issue any of its share or loan capital or
grant or agree to grant any option over or right to acquire
any of its share or loan capital;
(b) enter into any contract (otherwise than in the ordinary course
of business) or any material capital commitment or undertake
or incur any contingent liability;
(c) appoint any directors;
(d) increase (save for normal annual salary review) or agree to
increase the remuneration (including, without limitation,
bonuses, commissions and benefits in kind of their directors
or employees) or provide or agree to provide any gratuitous
payment or benefit to any such person or any of their
dependents and no employees shall be engaged or dismissed or
have their terms of employment altered;
(e) acquire or agree to acquire or dispose or agree to dispose of
any asset or stocks or enter into any contract other than in
the normal course of business;
and the Vendor shall procure that the Purchaser be kept fully informed of the
affairs of the Group until the Completion Date.
5. GUARANTEE
VENDOR GUARANTOR
(a) In consideration of the Vendor entering into this Agreement
with the Purchaser, the Vendor Guarantor covenants with and
guarantees with the Purchaser that if for any reason the
Vendor fails to observe the timely performance of any or
all of the Vendor's obligations under this Agreement or any
agreement or deed entered into pursuant hereto it will upon
receiving a demand in writing from the Purchaser or on its
behalf fulfil or procure fulfilment of all the said
obligations of the Vendor in compliance with the terms of
this Agreement or such other agreement or deed and will on
demand indemnify and keep indemnified the Purchaser from
and against all damages, costs, losses and expenses
incurred or suffered by them in
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connection with the failure by the Vendor to observe the
timely performance of any such obligation.
(b) Subject as hereinafter provided this guarantee is a continuing
guarantee and shall remain in force until all obligations of
the Vendor under this Agreement or any deed or agreement
referred to herein shall have been fulfilled or shall have
been expired and shall remain in full force and effect
notwithstanding any waiver, dis-application or variation to
the provisions of this Agreement. The Vendor Guarantor shall
be a primary obligor in respect of all its obligations under
this Agreement.
6. SEVERABILITY
If at any time any one or more provisions hereof is or becomes invalid,
illegal, unenforceable or incapable of performance in any respect, the
validity, legality, enforceability or performance of the remaining
provisions hereof shall not thereby in any way be affected or impaired.
7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding
between the parties in connection with the subject-matter of this
Agreement and supersedes all previous proposals, representations,
warranties, agreements or undertakings relating thereto whether oral,
written or otherwise and neither party has relied on any such
proposals, representations, warranties, agreements or undertakings.
8. TIME
Time shall be of the essence of this Agreement.
9. CONFIDENTIALITY
9.1 As soon as practicable after the signing of this Agreement the
parties shall cause a press announcement relating to this
Agreement be made.
9.2 Save as aforesaid and such disclosure as may be required by
the Stock Exchange, the Securities & Futures Commission or the
Committee on the Takeovers and Mergers or as may be required
to comply with the Code, neither of the parties hereto shall
make, and the Vendor (up to the Completion Date) and the
Purchaser (from the Completion Date) shall procure that the
Company will not make any announcement or release or disclose
any information concerning this Agreement or the transactions
herein referred to or disclose the identity of the other party
(save disclosure to their respective professional advisers
under a duty of confidentiality) without the prior written
consent of the other party.
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10. ASSIGNMENT
This Agreement shall be binding on and shall ensure for the benefits of
the successors and assigns of the parties hereto but shall not be
assigned by any party without the prior written consent of the other
party.
11. NOTICES AND OTHER COMMUNICATION
11.1 Any notice required or permitted to be given hereunder shall
be given in writing in the English language delivered
personally or sent by post (airmail if overseas) or by telex
or facsimile message to the party due to receive such notice
at his or its address as set out above (or such other address
as he or it may have notified to the other parties in
accordance with this Clause).
11.2 For the purpose of delivery of notices under this Agreement,
the address of the Vendor, the Vendor Guarantor and the
Purchaser are as stated in this Agreement.
12. COSTS AND EXPENSES
Each party shall bear their respective legal and professional fees,
costs and expenses incurred in the negotiation, preparation and
execution of this Agreement.
13. STAMP DUTY
Stamp duty arising out of the sale and purchase of the Sale Shares
shall be borne by the Vendor and the Purchaser hereto in equal shares.
14. COUNTERPARTS
This Agreement may be entered into in any number of counterparts and by
the parties to it on separate counterparts, each of which when so
executed and delivered shall be the original, but all the counterparts
shall together constitute one and the same instrument.
15. ELECTION
The Vendor Guarantor and the Purchaser hereby agree that at any time
before Completion the Purchaser may elect to purchase from the Vendor
Guarantor the entire issued share capital of the Vendor instead of the
Sale Shares provided that the Vendor Guarantor will give full
warranties on the Vendor and the Deposit shall be treated as deposit
for the purchase of the Vendor accordingly, all the remaining terms of
this Agreement shall apply mutatis mutandis.
16. GOVERNING LAW & JURISDICTION
This Agreement and the rights and obligations of the parties hereunder
shall be governed by and construed and interpreted in all respects in
accordance with the laws of Hong Kong SAR, and the parties hereto
hereby irrevocably submit to the non-exclusive jurisdiction of the Hong
Kong SAR Courts.
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IN WITNESS WHEREOF, each of the parties hereto have executed this Agreement the
day and year first above written.
SIGNED by OEI HONG LEONG /s/ OEI HONG LEONG
in the presence of: --------------------
/s/
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SIGNED by /s/ OEI HONG LEONG
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for and on behalf of
Chip Lian Investments (HK) Limited
in the presence of:
/s/
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SIGNED by /s/ OEI HONG LEONG
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for and on behalf of
Calisan Developments Limited
in the presence of:
/s/
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SIGNED by /s/ OEI HONG LEONG
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for and on behalf of
Sanion Enterprises Limited
in the presence of:
/s/OEI HONG LEONG
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SIGNED by /s/ TOM LAM
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for and on behalf of
Great Decision Limited
in the presence of:
/s/
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/s/
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/s/
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