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EXHIBIT 1
DATED THE 26TH DAY OF SEPTEMBER 2000
OEI HONG LEONG
and
CHIP LIAN INVESTMENTS (HK) LIMITED,
CALISAN DEVELOPMENTS LIMITED
and
SANION ENTERPRISES LIMITED
and
POWERVOTE TECHNOLOGY 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 26th 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. POWERVOTE TECHNOLOGY LIMITED, a company incorporated in British Virgin
Islands whose place of business is at 7th 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 authorised
share capital of $800,000,000 divided into 8,000,000,000 shares of $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
1,608,800,000 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 as to 50% by Paul
Y. - ITC Construction Holdings Limited ("Paul Y.") and beneficially
owned as to 50% by Hanny Holdings Limited ("Hanny"). Both Paul Y. and
Hanny are public companies listed on the Stock Exchange.
AND NOW IT IS HEREBY AGREED as follows:
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1. CONDITIONS PRECEDENT AND THE SALE AND PURCHASE
1.1 Completion of this Agreement shall be conditional upon clearance for the
Securities and Futures Commission that a general offer will not be
required to be made by the Purchaser in respect of all the shares of the
Company apart from the Sale 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 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 or otherwise not waived by the Purchaser, 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 The Vendor and the Vendor Guarantor shall undertake to place down the
remaining 524,413,585 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 $1,287,040,000 representing $0.80 per Sale Share.
2.2 The Purchaser shall, upon signing of this Agreement, pay a deposit of
$128,704,000 (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 or specifically waived in writing by
the Purchaser 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 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
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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 $514,816,000 which together with the
Deposit being 50% of the purchase consideration of the
Sale Shares; and
(ii) a promissory note of $643,520,000 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. and Hanny severally,
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 favour 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 favour 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").
(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;
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(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-exemption 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 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.
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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 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.
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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.
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 below (or such
other address as he or it may have notified to the other parties in
accordance with this Clause).
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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 his 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 the parties hereto have executed this Agreement as of 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/
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for and on behalf of
Powervote Technology Limited
in the presence of:
/s/ MAGGIE HO SZE NOA
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