<PAGE>
<PAGE>
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM 10-KSB
(Mark One)
[x] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 0-23462
ASIA MEDIA COMMUNICATIONS, LTD.
(Exact name of registrant as specified in its charter)
NEVADA 88-0207089
(State or other jurisdiction (IRS employer
of Corporation or organization) identification No.)
712 FIFTH AVENUE, 7TH FLOOR
NEW YORK, NY 10019
(Address of principal executive offices)
(212) 582-3400
Registrant's telephone number, including area code
---------------
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
<TABLE>
<CAPTION>
TITLE OF EACH CLASS: NAME OF EACH EXCHANGE ON WHICH REGISTERED
-------------------- -----------------------------------------
<S> <C>
Common Stock None
</TABLE>
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Common Stock
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
YES NO x
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-KSB. [X]
The registrant has been inactive and there is no market value of the
voting stock held by non-affiliates of the registrant.
The number of shares outstanding of each of the registrant's classes of
stock as of the latest practicable date are:
<TABLE>
<CAPTION>
CLASS OF SECURITIES: OUTSTANDING AT 12/15/98
-------------------- ------------------------
<S> <C>
Common Stock, Par Value $.01 5,535,586 Shares
</TABLE>
===============================================================================
<PAGE>
<PAGE>
PART I
ITEM 1. BUSINESS
Asia Media Communications, Ltd. (the "Registrant" or the "Company") was
incorporated under the laws of the State of Nevada on February 20, 1985 under
the name Sperzel-NV Inc. On May 21, 1992, the Company filed a petition for
relief under Chapter 11 of the Federal bankruptcy laws in the United States
Bankruptcy Court for the District of Nevada. On January 31, 1994, the Company's
reorganization plan was confirmed by the Bankruptcy Court. Pursuant thereto, the
Company purchased the net assets of Asia Media Communications Ltd., which
consisted primarily of a video library that was intended to be distributed in
the Far East, and changed its name to reflect such acquisition. The video
library proved commercially unexploitable and during calendar 1995 and until
March, 1996 the Company's principal activity consisted of seeking opportunities
in other business ventures.
On March 18, 1996, the Company completed a merger (the "Merger") with
Kremlyovskaya Group, Inc., a privately held Delaware corporation ("KGI"). KGI,
through a wholly owned subsidiary in Belgium, was a distributor of vodka and
other products in foreign markets, primarily Russia. In August 1996, the Company
and the former shareholders of KGI, by mutual consent, rescinded the Merger as
of the effective date thereof.
On October 30, 1996, certain shareholders of the Company entered into a
stock purchase agreement with D-Vine Investment Partners, a Delaware general
partnership between Edward Tobin and Christopher F. Brown (the "Partnership"),
pursuant to which the Partnership purchased an aggregate of 3,656,667 shares of
the Company's common stock (the "Purchased Shares"), representing approximately
76.4% of the Company's total issued and outstanding capital stock on such date.
The purchase price for the Purchased Shares was $150,000 (approximately $.04 per
share). Immediately following such transaction, the Company entered into a
Consulting Agreement with Ian Rice, the former Chairman of the Company and the
sole shareholder of one of the selling shareholders, pursuant to which Mr. Rice
agreed to assist the Company for a period of 90 days in identifying and locating
suitable acquisitions for the Company. In consideration of such services, the
Company issued to Mr. Rice an aggregate of 750,000 shares of the Company's
common stock.
On December 31, 1996, the Company, through its wholly owned subsidiary,
AMC International Holdings Ltd., a British Virgin Islands corporation ("AMC
Holdings"), purchased from IPC Corporation, Ltd., a Singaporean corporation (the
"Vendor"), effective as of January 1, 1996, all of the issued and outstanding
capital stock of IPC Corporation (Australia) Pty Ltd., an Australian corporation
("IPC Australia"). The consideration paid was $1.00 in cash plus the issuance to
the Vendor of 25 preference shares of AMC Holdings (the "Preference Shares"),
each having a stated value of $1,000,000 (the "Stated Value"). The Preference
Shares are exchangeable at any time and from time to time at the option of the
holder into shares of the Company's common stock, on the basis of one share of
common stock for each $2.00 of the Stated Value of each Preference Share or part
thereof so exchanged. The Preference Shares are also redeemable at any time and
from time to time at the option of the Company upon payment of the Stated Value
of each Preference Share or part thereof so redeemed. In addition, the Vendor
assigned to AMC Holdings all of the indebtedness of IPC Australia to the Vendor
which was approximately $25,000,000. In order to effect the exchange of the
Preference Shares for shares of the Company's common stock, the Company granted
an option to AMC Holdings to acquire, for no consideration, such number of
shares of its common stock as may be required to effect the exchange of all of
the Preference Shares. In April 1997, the Company and the Vendor executed an
agreement pursuant to which the Vendor agreed, subject to certain terms and
conditions, never to exercise its rights, as holder, to exchange the Preference
Shares for shares of the Company's common stock. The Company is uncertain
whether such agreement would be binding upon an innocent purchaser for value
of the Preference Shares.
On August 1, 1997, the Company sold a warrant to purchase 1,000,000
shares of its common stock (the "Warrant") to Oceanic Strategic Holdings,
Limited, an unrelated third party, for $50,000 in
2
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<PAGE>
cash. The exercise price of the Warrant is $.01 per share, provided that both
the exercise price per share and the number of shares issuable upon exercise of
the Warrant are subject to adjust upon the happening of certain events, except
for a reverse stock split in which case no adjustment is to be made. The Warrant
is exercisable at any time and from time to time on and after August 1, 1998
until August 1, 2001.
On September 1, 1997, the Company sold, for nominal cash consideration,
all of the capital stock of AMC Holdings to an unrelated party effective as of
December 31, 1996, the date of the acquisition of the capital stock of IPC
Australia. The purchaser assumed all of the Company's obligations under the
agreement pursuant to which AMC Holdings acquired the capital stock of IPC
Australia. The effect of the foregoing transaction was to completely negate the
acquisition of IPC Australia, except with respect to the possible exchange of
the Preference Shares.
Following the sale of the capital stock of AMC Holdings, the Company's
principal activity has been to seek business opportunities in other business
ventures.
ITEM 2. PROPERTIES
The Company does not own or lease any real property. The Company
presently operates from offices on a rent-free basis utilized by the President
and a director.
ITEM 3. LEGAL PROCEEDINGS
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
(a) (1) Market Information
The Registrant has been inactive and its Common Stock has had no market
value.
(a) (2) Recent Sales of Unregistered Securities
No securities that were not registered under the Securities Act of
1933, as amended (the "Act"), have been issued or sold by the Company during
calendar 1994, 1995 and 1996, except as described below.
1. On January 31, 1994, pursuant to the Company's Plan of
Reorganization, the Company issued an aggregate of 3,800,000 shares of its
common stock to several parties in connection with the acquisition of a
video library. The shares were offered and sold to sophisticated investors in
reliance upon the exemption provided by Section 4 (2) of the Act. The video
library proved commercially unexploitable and in 1996, two of the recipients of
the shares returned to the Company an aggregate of 3,192,000 shares.
3
<PAGE>
<PAGE>
2. On March 18, 1996, the Company issued an aggregate of
89,125,000 shares of its common stock to 14 parties in connection with the
merger of Kremlyovskaya Group, Inc. with and into a wholly owned subsidiary of
the Company. All of such parties were sophisticated investors and the shares
were offered and sold in reliance upon the exemption provided by Section 4(2) of
the Act. On August 15, 1996, the merger was rescinded and all of the shares were
returned to the Company.
3. On December 26, 1996, the Company granted an option for no
consideration to its wholly owned subsidiary, AMC International Holdings, Ltd.
("AMC Holdings"), to acquire, for no consideration, such number of shares of the
Company's common stock as may be required to effect the exchange of preference
shares to be issued to AMC Holdings. On December 31, 1996, AMC Holdings issued
25 preference shares to IPC Corporation, a publicly traded company in Singapore,
in connection with the acquisition of a wholly owned subsidiary of IPC
Corporation. The option was granted in reliance upon the exemption provided in
Section 4 (2) of the Act.
ITEM 6. PLAN OF OPERATION
The Company's current business plan is primarily to seek one or more
potential businesses which may, in the opinion of management, warrant the
Company's involvement. The Company recognizes that as a result of its limited
financial, managerial or other resources, the number of suitable potential
businesses which may be available to it will be extremely limited. In seeking to
attain its business objective, the Company will not restrict its search to any
particular industry. Rather, the Company may investigate businesses of
essentially any kind or nature, including but not limited to, finance, high
technology, manufacturing, service, sports, research and development,
communications, insurance, brokerage, transportation and others. It is
emphasized that the business objectives discussed herein are extremely general
and are not intended to be restrictive upon the discretion of management. The
Company has not conducted any market studies with respect to any business or
industry.
The Company will not restrict its search to any specific industry and
may acquire any entity or position in a company which is (i) in its preliminary
or development stage, or (ii) is a going concern. At this time it is impossible
to determine the needs of the business in which the Company may seek to
participate, and whether such business may require additional capital,
management, or may be seeking other advantages which the Company may offer. In
other instances, possible business endeavors may involve the acquisition of or a
merger with a company which does not need additional equity, but seeks to
establish a public trading market for its securities.
Businesses which seek the Company's participation in their operations
may desire to do so to avoid what such businesses deem to be adverse factors
related to undertaking a public offering. Such factors include substantial time
requirements and legal costs, along with other conditions or requirements
imposed by Federal and state securities laws.
The analysis of potential business endeavors will be undertaken by or
under the supervision of the Company's management. Management is comprised of
individuals of varying business experience, all of whom are engaged in other
activities and devote only a limited amount of their time to the Company.
Management will rely on their own business judgment in formulating decisions as
to the types of businesses which the Company may acquire or in which the Company
may participate.
In analyzing prospective businesses, management will consider such
factors as available technical, financial and managerial resources; working
capital and other financial requirements; such businesses' history of
operations, if any, and prospects for the future; the nature of present and
expected competition; the quality and experience of management services which
may be available and the depth of that management; risk factors; the potential
for growth and expansion; the potential for
4
<PAGE>
<PAGE>
profit; the perceived public recognition or acceptance of such businesses,
products, services, trade or service marks; its name identification; and other
relevant factors.
While the above factors will be considered, to a large extent a
decision to participate in a specific business will be difficult, if not
impossible, to analyze through the application of objective criteria. In many
instances, the achievements of a specific business to date may not necessarily
be indicative of its potential for the future because of various changing
requirements in the marketplace, such as the ability to substantially shift
marketing approaches, expand significantly or change product emphasis, change or
substantially alter management, or other factors. On the other hand, the
management of such companies may not have proven their abilities or
effectiveness, or established the viability of the market, or the products or
services which they propose to market. As such, the profitability of such a
business may be unpredictable and might therefore subject the Company and its
assets to substantial risks.
It is anticipated that locating and investigating specific proposals
will take a substantial period of time, although the time such process will take
can by no means be assured. Further, even after a business is located, the
negotiation, drafting and execution of relevant agreements, disclosure documents
and other instruments will require substantial additional time, effort and
attention on the part of management, as well as substantial costs for attorneys,
accountants and others. If a decision is made not to participate in a specific
business endeavor, the costs theretofore incurred in the related investigation
might not be recoverable. Furthermore, even if an agreement were reached for the
participation in a specific business, the failure to consummate that transaction
might result in the loss to the Company of the related costs incurred.
ITEM 7. FINANCIAL STATEMENTS
The following financial statements of Asia Media Communications, Ltd. are
included in Item 7.
Balance Sheet at December 31, 1996 and 1995.
Statements of operations for the Years Ended December 31, 1996 and 1995.
Statements of Stockholders' Equity for the Years ended December 31, 1996
and 1995.
Statements of Cash Flows for the Years ended December 31, 1996 and 1995
Notes to Financial Statements
5
<PAGE>
<PAGE>
INDEPENDENT AUDITORS' REPORT
----------------------------
To the Board of Directors
Asia Media Communications, Ltd.
(Formerly Sperzel-NV, Inc.)
New York, New York
We have audited the accompanying balance sheet of Asia Media Communications,
Ltd., (formerly Sperzel-NV, Inc.), (a corporation), as of December 31, 1996 and
the related statements of operations, stockholders' equity and cash flows for
the year then ended. These financial statements are the responsibility of
management. Our responsibility is to express an opinion of these financial
statements based on our audit. The financial statements for Asia Media
Communications, Ltd., for the year ended December 31, 1995 were audited by other
auditors whose report, dated March 20, 1996 on those statements, expressed an
uncertainty as to the Company's ability to continue as a going concern.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit and the report of other auditors provide a reasonable
basis for our opinion.
In our opinion, based on our audit, the financial statements referred to above
present fairly, in all material respects, the financial position of Asia Media
Communications, Ltd., as of December 31, 1996 and the results of its operations
and its cash flows for the year then ended in conformity with generally accepted
accounting principles.
6
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<PAGE>
Page 2
The accompanying financial statements have been prepared assuming the Company
will continue as a going concern. As discussed in Note 6, the Company has no
cash and it is uncertain at this point whether the Company will be able to pay
its liabilities in the normal course of the business. The accompanying financial
statements do not include any adjustments to reflect the possible future effects
on the recoverability and classification of assets or the amounts and
classification of liabilities that may result from the possible inability of the
Company to continue as a going concern.
Wlosek & Braverman, L.L.C.
Certified Public Accountants
December 28, 1998
Clifton, New Jersey
7
<PAGE>
<PAGE>
ASIA MEDIA COMMUNICATIONS, LTD.
(FORMERLY SPERZEL-NV, INC.)
BALANCE SHEET
DECEMBER 31, 1996
<TABLE>
<S> <C>
ASSETS
------
Current Assets:
Cash $ -
----------
Total Assets $ -
==========
LIABILITIES AND DEFICIT IN STOCKHOLDERS' EQUITY
-----------------------------------------------
Current Liabilities:
Advance from shareholder $ 14,448
----------
Commitments and Contingencies (Notes 8 & 9)
Deficit in Stockholders' Equity:
Common stock, $.01 par value, 100,000,000
shares authorized; 5,535,586
shares issued and outstanding 55,356
Additional paid-in capital 748,825
Deficit in retained earnings ( 84,908)
----------
719,273
Less: Treasury stock (Note 4) ( 733,721)
----------
Total Deficit in Stockholders' Equity ( 14,448)
----------
Total Liabilities and Deficit in Stockholders' Equity $ -
==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
8
<PAGE>
<PAGE>
ASIA MEDIA COMMUNICATIONS, LTD.
(FORMERLY SPERZEL-NV, INC.)
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
For the Years Ended
December 31,
1996 1995
--------- ---------
<S> <C> <C>
Revenues:
Settlement of shareholder debt $ 16,746 $ -
---------- ---------
Costs and Expenses:
Cost of Sales - -
Selling, general and administrative expenses:
Legal and other fees 18,526 11,537
Other expenses - 543
---------- ----------
Total Costs and Expenses 18,526 12,080
---------- ----------
Loss before Income Tax Benefit ( 1,780) ( 12,080)
Income Tax (Benefit)
Current ( 267) ( 1,812)
Deferred 267 1,812
---------- ----------
Total Income Tax (Benefit) - -
---------- ----------
Net Loss $ ( 1,780) $ ( 12,080)
========== ==========
Loss Per Common Share $ ( 0.00) $ ( 0.00)
========== ==========
Average weighted number of common
shares outstanding 5,465,919 8,037,586
========== ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
9
<PAGE>
<PAGE>
ASIA MEDIA COMMUNICATIONS, LTD.
(FORMERLY SPERZEL-NV, INC.)
STATEMENTS OF DEFICIT IN STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1996 AND 1995
<TABLE>
<CAPTION>
Retained
Additional Earnings Total
Number Common Paid-in (Accumulated Treasury Stockholders'
Of Shares Stock Capital Deficit) Stock Equity
--------- ----- ------- -------- ----- ------
<S> <C> <C> <C> <C> <C> <C>
Balances, January 1, 1995 8,037,586 $ 170,132 $ 626,549 $( 71,048) $( 733,721) $( 8,088)
Net Loss - - - ( 12,080) - ( 12,080)
---------- --------- --------- ---------- ---------- ---------
Balances, December 31, 1995 8,037,586 170,132 626,549 ( 83,128) ( 733,721) ( 20,168)
Common stock cancellation (3,252,000) ( 32,520) 32,520 - - -
Issuance of common stock
in connection with
consulting services
provided at value par 750,000 7,500 - - - 7,500
Reclassification in connection
with common stock par value - ( 89,756) 89,756 - - -
Net Loss - - - ( 1,780) - ( 1,780)
---------- --------- --------- ---------- ---------- ---------
Balances, December 31, 1996 5,535,586 $ 55,356 $ 748,825 $( 84,908) $( 733,721) $( 14,448)
========== ========= ========= ========== ========== =========
</TABLE>
The accompanying notes are an integral part of these financial statements.
10
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<PAGE>
ASIA MEDIA COMMUNICATIONS, LTD.
(FORMERLY SPERZEL-NV, INC.)
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
For the Years Ended
December 31,
1996 1995
--------- ----------
<S> <C> <C>
Net Loss $( 1,780) $( 12,080)
--------- ----------
Adjustments to reconcile net loss to net cash
provided by operating activities:
Capital stock issued in connection with
consulting services rendered 7,500 -
Changes in assets and liabilities:
Increase (decrease) in accounts payable ( 3,422) 3,422
Decrease in advances from stockholder ( 2,298) ( 1,261)
-------- --------
Total Adjustments 1,780 2,161
-------- --------
Net Cash used in Operating Activities - ( 9,919)
-------- --------
Net (decrease) increase in cash and cash
equivalents - ( 9,919)
Cash and cash equivalents, beginning - 9,919
-------- --------
Cash and cash equivalents, end $ - $ -
======== ========
</TABLE>
DISCLOSURE OF ACCOUNTING POLICY
For purposes of the statement of cash flows, the Company considers all
short-term investments with an original maturity of three months or less to be
cash equivalents.
The accompanying notes are an integral part of these financial statements.
11
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ASIA MEDIA COMMUNICATIONS, LTD.
(FORMERLY SPERZEL-NV, INC.)
NOTES TO FINANCIAL STATEMENTS
NOTE 1: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation:
The accompanying balance sheet includes the accounts of Asia Media
Communications, Ltd., a corporation purchased by Sperzel-NV, Inc. on
January 31, 1994. On the same date, Sperzel NV, Inc. changed its name to
Asia Media Communications, Ltd. As Asia Media Communications, Ltd., the
Company had attempted to acquire the licensing rights for distribution
of videos in the Far East. However, the acquisition was never completed
and the Company is seeking opportunities in other business ventures. The
Company also had acquisition and merger agreements relating to the
distribution of vodka and other products, primarily in Russia as well as
an Australian company which distributes computer equipment in the Far
East. All acquisition and merger agreements were effectively rescinded
as of their respective effective dates, and accordingly, no transactions
related thereto are included in the accompanying financial data.
Income taxes:
The Company has adopted the Statement of Financial Accounting Standard
No. 109 (FAS 109), Accounting for Income Taxes, from its inception. FAS
109 requires an asset and liability approach that recognizes deferred
tax assets and liabilities for the expected future tax consequences of
events that have been recognized in the Company's financial statements
or tax returns. In estimating future tax consequences, FAS 109 generally
considers all expected future events other than enactments of changes in
the tax law or rates.
Business activity:
The Company, a Nevada corporation, with its administrative office now located in
New York, was incorporated on February 20, 1985. At the present time, the
Company has no current operations, and is actively attempting to acquire a
business operation, or obtain one through merger with a privately-held company
seeking public status.
12
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<PAGE>
ASIA MEDIA COMMUNICATIONS, LTD.
(FORMERLY SPERZEL-NV, INC.)
NOTES TO FINANCIAL STATEMENTS
NOTE 1: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES - Continued
Income (Loss) per Share:
The computation of income (loss) per share of common stock is based on
the weighted average number of shares outstanding during the periods
presented.
Use of Estimates:
The preparation of financial statements in conformity with generally
accepted accounting principles requires the Company to make estimates
and assumptions that affect (1) the reported amounts of assets and
liabilities, (2) disclosure of contingent assets and liabilities at the
date of the financial statements, and (3) reported amounts of revenues
and expenses during the reporting period. Actual results could differ
from those estimates.
NOTE 2: REORGANIZATION
On January 31, 1994, the company's reorganization plan
was confirmed by the United States Bankruptcy Court,
District of Nevada. Pursuant thereto, the Company
acquired Asia Media Communications, Ltd. and changed its
name accordingly. The Company accounted for its
reorganization using "fresh start" reporting, thereby
restating assets and liabilities at reorganizing values,
which approximates fair market at the reorganization
date. The Asia Media Communications, Ltd. balance sheet
as of January 31, 1994, (date of reorganization) follows:
<TABLE>
<S> <C>
Assets
Current Assets
Cash $ 6,445
Property and equipment:
Assets held for disposal 501
Other Assets
Deposits 5,900
--------
$ 12,846
========
</TABLE>
13
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<PAGE>
ASIA MEDIA COMMUNICATIONS, LTD.
(FORMERLY SPERZEL-NV, INC.)
NOTES TO FINANCIAL STATEMENTS
NOTE 2: REORGANIZATION - Continued
Asia Media Communications, Ltd. balance sheet as of January 31, 1994
(date of reorganization) - Continued:
<TABLE>
Liabilities and Stockholders' Equity (Deficit)
----------------------------------------------
<S> <C>
Current Liabilities:
Accounts payable $ 6,443
Accrued liabilities 25,500
Advances from Stockholders 17,943
--------
Total Current Liablities 49,886
--------
Stockholders' (Deficit):
Common stock 160,132
Additional paid-in capital 536,549
Retained earnings -
--------
696,681
Less: Treasury Stock 733,721
--------
Total Stockholders' (Deficit) ( 37,040)
--------
$ 12,846
========
</TABLE>
NOTE 3: ADVANCES FROM STOCKHOLDERS
The settlement of indebtedness of $16,746 related to advances made in
prior years from a shareholder company. The indebtedness did not bear
interest nor were there any specific repayment terms. As part of the
rescission of K.G.I. Acquisition, (see Note 8), the indebtedness was
canceled. During 1996, another shareholder paid accounts payable
aggregating $14,448 on behalf of the Company. The payments were
substantially for professional fees rendered. The indebtedness is
non-interest bearing and has no specific repayment terms.
NOTE 4: TREASURY STOCK
Treasury stock is shown at cost and consists of 771,290 shares of common
stock. The shares held in the treasury were adjusted for the effects of
a reverse 1 to 10 stock split.
14
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<PAGE>
ASIA MEDIA COMMUNICATIONS, LTD.
(FORMERLY SPERZEL-NV, INC.)
NOTES TO FINANCIAL STATEMENTS
NOTE 5: INCOME TAXES
Since the Company has not generated any taxable income since its
emergence from bankruptcy, no provision for income tax has been made.
Temporary differences giving rise to the deferred tax asset consist of
potential net operating loss carryforwards for both financial and tax
reporting purposes. However, Statement of Financial Accounting Standard
No. 109, Accounting for Income Taxes, allows the establishment of a
valuation allowance to offset any deferred tax asset that may result
from the recording of potential future net operating loss carryforwards.
Since it is unclear at this time whether any income tax benefit will be
realized in the future for the recognition of the Company's net
operating loss carryforward, an allowance was establish to reduce the
deferred tax asset as follows:
<TABLE>
<CAPTION>
1996 1995
------ ------
<S> <C> <C>
Deferred tax asset for future benefits
of net loss carryforward $ 28,720 $ 28,453
Less: valuation allowance to
recognize possible non-realization
of net operating loss carryforward (28,720) ( 28,453)
--------- ---------
$ - $ -
========= =========
</TABLE>
The following temporary differences gave rise to the deferred tax assets
at December 31:
<TABLE>
<CAPTION>
For the Year Ended
December 31
1996 1995
--------- ---------
<S> <C> <C>
Tax benefit of net operating loss
carryforward $ 28,720 $ 28,453
Valuation allowance for judgement
of realizability of net operating loss
carryforward in future years $ (28,720) $ (28,453)
</TABLE>
15
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ASIA MEDIA COMMUNICATIONS, LTD.
(FORMERLY SPERZEL-NV, INC.)
NOTES TO FINANCIAL STATEMENTS
NOTE 5: INCOME TAXES - Continued
A reconciliation of income tax expenses at the statutory rate to the
Company's effective rate is as follows:
<TABLE>
<CAPTION>
For the Year Ended
December 31
1996 1995
--------- ---------
<S> <C> <C>
Computed at the expected
statutory rate - -
Less: Tax benefit, current - -
--------- ---------
Income tax expense computed
At effective rate $ - $ -
========= =========
</TABLE>
The Company can carry forward its $189,689 net operating loss as
follows:
<TABLE>
<CAPTION>
Year of
Expiration
----------
<S> <C>
2007 $ 106,561
2008 71,048
2009 12,080
---------
Total $ 189,689
=========
</TABLE>
NOTE 6: GOING CONCERN CONTINGENCY
As of December 31, 1996, the Company had no assets and reported losses
for the periods since the date of its reorganization, (January 31,
1994). Subsequent to 1996, the Company sold a warrant for $50,000, (see
Note 9), in order to generate cash for operations; however, the
Company's ability to continue as a going concern will depend upon
management's acquiring profitable operations and the ability to develop
a sufficient cash flow to meet its obligations as they become due.
16
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<PAGE>
ASIA MEDIA COMMUNICATIONS, LTD.
(FORMERLY SPERZEL-NV, INC.)
NOTES TO FINANCIAL STATEMENTS
NOTE 7: RELATED PARTY TRANSACTIONS
The Company presently operates from offices on a rent-free basis
utilized by the President and director. Actual space utilization is
deminimus in nature and is non-reimbursable. There are no pending lease
arrangements at the present time.
NOTE 8: CERTAIN TRANSACTIONS
Acquisition of K.G.I.:
In March 1996, the Company acquired Kremlyovskaya Group, Inc., (K.G.I.),
a privately-held Delaware corporation. K.G.I., through a wholly owned
subsidiary in Belgium, distributes vodka and other product in foreign
markets, primarily Russia. Subsequent thereto, the Company and K.G.I.,
by mutual consent, rescinded the merger acquisition as of the
acquisition date in 1996. Accordingly, the accompanying financial
statements report no transaction relative thereto, except the
cancellation of the shareholder indebtedness, (see Note 3).
Acquisition of I.P.C. Australia:
On December 31, 1996, (the "Effective Date"), the Company, through its
newly formed, wholly owned subsidiary, AMC International Holdings Ltd.,
a British Virgin Islands corporation, ("AMC Holdings"), purchased from
I.P.C. Corporation, Ltd., a Singaporean corporation (the "Vendor"),
effective as of January 1, 1996, all of the issued and outstanding
capital stock of I.P.C. Corporation (Australia) Pty Ltd., an Australian
corporation ("IPC Australia"). The consideration paid was $1.00 in cash
plus the issuance to I.P.C. of 25 preference shares of AMC Holdings (the
"Preference Shares"), each having a stated value of $1,000,000, (the
"Stated Value"). The Preference Shares are exchangeable at any time and
from time to time at the option of the holder into shares of the
Company's common stock, par value $.01 per share, (the "Common Stock"),
on the basis of one share of Common Stock for each $2.00 of the Stated
Value of each share or part thereof of a Preference Share so exchanged.
The Preference Shares are also redeemable at any time and from time to
time at the option of the Company upon payment of the Stated Value of
each Preference Share or part thereof so redeemed. In addition, I.P.C.
assigned to AMC Holdings all of the indebtedness of I.P.C. Australia to
I.P.C. which on the Effective Date was approximately $25,000,000.
17
<PAGE>
<PAGE>
ASIA MEDIA COMMUNICATIONS, LTD.
(FORMERLY SPERZEL-NV, INC.)
NOTES TO FINANCIAL STATEMENTS
NOTE 8: CERTAIN TRANSACTIONS - Continued
Acquisition of I.P.C. Australia - continued:
The Company granted an option to "AMC Holdings" in order to effect the
exchange of Preference Shares for common shares as described above. In
1997, the Company and I.P.C. Corporation, Ltd. executed an agreement
that, subject to certain terms and conditions, I.P.C. agreed never to
exercise the option to exchange the Preference Shares pursuant to the
option agreement. Management is presently uncertain as to the legal
binding effect of the forbearance agreement upon an innocent purchaser
for value and, accordingly, reports the contingent commitment to honor
this option agreement, (See Note 9).
On September 1, 1997, the Company sold, for nominal cash, the capital
stock of "AMC Holdings" effective December 31, 1996, (date of
acquisition). The effect of this sale transaction, (which carried the
same terms and conditions as the purchase agreement of the same date),
was to completely negate the acquisition of I.P.C. Australia effectively
creating a rescinded purchase. The Company was thereby restored to its
same condition prior to the I.P.C. Australia purchase, with the
exception of the contingent obligations.
NOTE 9: COMMITMENTS AND CONTINGENCIES
Option Agreement:
Pursuant to the I.P.C. Australia acquisition described in Note 8, the
Company granted its newly formed subsidiary, AMC Holdings, an option to
acquire 12,500,000 shares of the Company's common stock in order to
effect the exchange provision related to the preference shares. Further,
as described in Note 8, the agreement of forbearance with respect to the
option may not be binding upon a purchaser for value. Accordingly, the
Company may be forced to issue 12,500,000 shares of its common stock to
such a purchaser and are thereby reserved.
18
<PAGE>
<PAGE>
ASIA MEDIA COMMUNICATIONS, LTD.
(FORMERLY SPERZEL-NV, INC.)
NOTES TO FINANCIAL STATEMENTS
NOTE 9: COMMITMENTS AND CONTINGENCIES - Continued
Sale of Warrant (Subsequent Event):
In August 1997, the Company sold a warrant to purchase 1,000,000 shares
of its common stock to Ocean Strategic Holdings, Limited, (holder), at
an exercise price of $.01 per share. The Company received $50,000 as
consideration for the warrant. Under the terms of the warrant, the
holder's share rights may be adjusted to effect for certain capital
transactions that the Company may establish; however, in the event of a
stock split, the exercise price and number of shares shall not be
adjusted. The warrant is exercisable as of August 1, 1998 and expires
August 1, 2001. As of the present date, no shares have been issued
pursuant to the warrant and the Company has reserved 1,000,000 shares of
its common stock.
19
<PAGE>
<PAGE>
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
On December 23,1998, the Company dismissed Albright, Persing & Associates,
Ltd. ("APA"), its independent accountants that had audited the Company's
financial statements for the for the year ended December 31, 1995 and the 11
month period ended December 31, 1994. The report of APA on the Company's
financial statements for each of such periods did not contain an adverse opinion
or a disclaimer of opinion, nor was it qualified or modified as to uncertainty,
audit scope, or accounting principles, except that it expressed an uncertainty
as to the Company's ability to continue as a going concern. The dismissal of APA
was approved by the company's board of directors. During the year ended December
31, 1995 and the 11 month period ended December 31, 1994 and during the interim
period preceding the dismissal of APA, there were no disagreements with APA on
any matter of accounting principles or practice, financial statement disclosure,
or auditing scope or procedure. No "reportable events" within the meaning of
Item 304(a)(1)(v) of Regulation S-K promulgated under the Securities Exchange
Act of 1934, occurred during either the year ended December 31, 1995 or the 11
month period ended December 31, 1994 or during the interim period preceding the
dismissal of APA.
On December 24, 1998, the Company engaged Wlosek & Braverman L.L.C. as the
principal accountant to audit the Company's financial statements for its fiscal
year ended December 31, 1996.
20
<PAGE>
<PAGE>
PART III
ITEM 9. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
<TABLE>
<CAPTION>
Name and Address Age Capacities
- ---------------- --- ----------
<S> <C> <C>
Edward Tobin -- Director, President, Chief Executive
712 Fifth Avenue, 7th Fl. and Chief Financial Officer
New York, NY 10019
Christopher F. Brown -- Director
712 Fifth Avenue, 7th fl.
New York, NY 10019
Thomas Tuttle -- Director
712 Fifth Avenue, 7th Fl.
New York, NY
BACKGROUND INFORMATION
Edward Tobin - From 1986 to the present, Mr. Tobin has been a director of GEM
Ventures Ltd., an investment banking firm. From 1991 to 1996, Mr. Tobin was a
director of Lincklaen Partners, a private investment firm.
Christopher F. Brown - From 1994 to the present. Mr. Brown has been the
president of Global Emerging Markets N.A., a financial consulting firm. From
1987 until 1993, Mr. Brown was a financial representative with Shearson Lehman
Brothers.
Thomas Tuttle - From 1995 to the present, Mr. Tuttle has been the president of
GEM Investment Advisors, Inc., a fianncial consulting firm. Prior to 1995, Mr.
Tuttle held various positions with Morgan Stanley & Co. and McKinsey & Co.
ITEM 10. EXECUTIVE COMPENSATION
During calendar 1996, none of the officers or directors were compensated
for their services as the Registrant was inactive.
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information regarding ownership of
Registrant's Common Stock as of the date of this report by all shareholders who
own 5% or more of Registrant's common stock:
</TABLE>
<TABLE>
<CAPTION>
Amount and
Nature of
Title of Beneficial Percent of
Name and Address Class Ownership Class
- ---------------- -------- ---------- ----------
<S> <C> <C> <C>
D-Vine Investment Partners(1) Common 3,656,667 66%
Direct
</TABLE>
- ----------------
(1) A general partnership between Messrs. Tobin and Brown.
21
<PAGE>
<PAGE>
The following table lists, as of the date hereof, the number and percentage
of each class of equity shares of Registrant or any of its subsidiaries
beneficially owned, directly or indirectly, by each officer and director, and by
all directors and officers of Registrant, as a group:
<TABLE>
<CAPTION>
Name of Amount and Nature Percent
Title Beneficial of of
of Class Owner Beneficial Ownership Class
- -------- ---------- -------------------- -------
<S> <C> <C> <C>
Common Edward Tobin(1) 3,656,667 Indirect 66%
Common Christopher F. Brown(1) 3,656,667 Indirect 66%
Common Thomas Tuttle -0- -0-
Common All officers and 3,656,667 66%
directors as a
group
</TABLE>
Registrant does not know of any arrangements, the operation of which may,
at a subsequent date, result in a change in control of registrant.
- -----------------
(1) These shares are held in the name of D-Vine Investment Partners, a Delaware
general partnership between Messrs. Tobin and Brown.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
On March 16, 1996, Marlow Properties, Inc., a company of which Mr. Ian Rice
(who resigned as a director in October 1996) is the sole officer, director, and
principal shareholder, and Melissa Rice, Mr. Rice's daughter, agreed to cancel,
respectively, 3,040,000 and 152,000 shares of the Registrant's common stock
which had been issued in connection with the acquisition by the Registrant of a
video library that had not proved commercially exploitable.
22
<PAGE>
<PAGE>
PART IV
ITEM 13. EXHIBITS, LIST AND REPORTS ON FORM 8-K
<TABLE>
<S> <C>
(a)(1) Financial Statements. See
(a)(2) Financial Statement Schedules.
(a)(3) Exhibits
</TABLE>
<TABLE>
<CAPTION>
Number Description
- ------ -----------
<S> <C>
2. Plan of Reorganization incorporated by reference to Registrant's
Report on Form 10-SB as filed with the Commission on February 16,
1994.
3.1 Registrant's Certificate of Incorporation, as amended,
incorporated by reference to Registrant's Report on Form 10-SB as
filed with the Commission on February 16, 1994.
3.2 Registrant's By-laws incorporated by reference to Registrant's
Report on Form 10-SB as filed with the Commission on February 16,
1994.
10.1 Agreement and Plan of Merger, dated March 18, 1996, by and among
Communications, Ltd., AMC Merger Co., Inc., Kremlyovskaya Group,
Inc. Riccardo Franchini and Richard Gaspar incorporated by
reference tReport on Form 8-K as filed with the Commission on
April 3, 1996.
10.2 Rescission Agreement, dated as of August 15, 1996, by and among
Asia Media Communications, Ltd., Kremlyovskaya Group Inc.,
Kremlyovskaya Group NV, Riccardo Franchini, Richard Gaspar, Yakov
Tillman, Tadeus Tonley, Valentin Kassakine, Guerman Liberman,
Youri Bykhovski, Wengen Investments Ltd., Redwatch Investments
Inc. SA, Safine A.G., Wallflower Investments Inc., SA, Able
Investments Ltd., Whitehall Investments Company Inc. and
Merton Trustees Limited, incorporated by reference to
Registrant's report on Form 8-K filed with Commission on
October 15, 1996.
10.3 Consulting Agreement, dated as of October 30, 1996, between Asia
Media Communications, Ltd. and Ian Rice, incorporated by reference
to Registrant's report on form 8-K filed with the Commission on
November 7, 1996.
10.4 Option Agreement, dated as of December 26, 1996, between Asia
Media Communications, Ltd. and AMC International Holdings, Ltd.
10.5 Written Consent of the Sole Director of AMC International
Holdings, Ltd. dated as of December 27, 1996.
10.6 Share Acquisition Agreement, dated December 1996, among IPC
Corporation, Asia Media Communications, Ltd. and AMC International
Holdings, Ltd.
10.7 Letter Agreement, dated April 1, 1997, between AMC International
Holdings, Ltd. and IPC Corporation.
10.8 Warrant, dated August 1, 1997, to purchase 1,000,000 shares of
Asia Media Communications, Ltd. issued to Ocean Strategic Holdings
Limited.
10.9 Share Purchase Agreement, dated September 1, 1997, by and between
Parthanon Investment Corporation and Asia Media Communications,
Ltd.
</TABLE>
23
<PAGE>
<PAGE>
<TABLE>
<S> <C>
23.1 Consent of Experts and Counsel
27.1 Financial Data Schedule
99 Letter, dated December 28, 1998 from Albright, Persing &
Associates, Ltd., the Registrant's former principal accountant's,
to the Securities and Exchange Commission pursuant to Item
304(a)(3) of Regulation S-K.
(b) Reports on Form 8-K
</TABLE>
The Company filed a Form 8-K with the Commission on October 11, 1996
relating to a change in control and the rescission of the merger with
Kremyovskaya Group, Inc. The Company also filed a Form 8-K with the Commission
on November 6, 1996 relating to a change of control. Neither of such reports
contained any financial statements.
24
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
ASIA MEDIA COMMUNICATIONS, LTD.
a Nevada Corporation
<TABLE>
<S> <C>
Dated: December 28, 1998 By: /s/ Edward Tobin
--------------------------------------------
Edward Tobin, President, Chief Executive
Officer and Chief Financial Officer
Dated: December 28, 1998 /s/ Christopher F. Brown
--------------------------------------------
Christopher F. Brown, Director
Dated: December 28, 1998 /s/ Thomas Tuttle
--------------------------------------------
Thomas Tuttle, Director
</TABLE>
25
<PAGE>
<PAGE>
Exhibit 10.4
OPTION AGREEMENT
AGREEMENT, dated as of this 26th day of December 1996, by and between
Asia Media Communications, Ltd., a Nevada corporation ("Parent"), and AMC
International Holdings, Ltd., a British Virgin Islands corporation ("AMHL").
WHEREAS, Parent is the record and beneficial owner of all of the
issued and outstanding common shares of AMHL; and
WHEREAS, AMHL proposes to create a class of preference shares (the
"Preference Shares") which are exchangeable into shares of the Parent's common
stock, par value $.01 per share (the "Common Stock"), pursuant to resolutions
substantially in the form of Exhibit A hereto (the "Resolutions"); and
WHEREAS, the Parent desires AMHL to create the Preference Shares and
therefore is willing to grant to AMHL an option to acquire such number of shares
of Common Stock as may be required to be exchanged for the Preference Shares,
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
1. Parent hereby grants to AMHL an option to acquire, for no
consideration, such number of shares of Common Stock as may be required from
time to time to exchange any Preference Shares presented for exchange in
accordance with the terms of the Resolutions (the "Option Shares").
2. Parent covenants and agrees with AMHL as follows:
(a) The Option Shares, when issued in exchange for Preference Shares
in accordance with the rights, preferences and privileges thereof as set forth
in the Resolutions, will be duly authorized, validly issued, fully paid and
nonassessable.
(b) Parent will at all times that any Preference Shares are
exchangeable into Option Shares, out of Parent's authorized but unissued shares
of Common Stock solely for the purpose of issuance upon exchange of Preference
Shares as provided in the Resolutions, free from preemptive rights or any other
actual contingent purchase rights of others other than the holders of the
Preference Shares, reserve such number of shares of Common Stock as shall be
issuable (taking into account the adjustments and restrictions set forth in
Section 5 of the Resolutions) upon the exchange of all outstanding Preference
Shares.
3. Upon any exchange of Preference Shares for Common Stock, Parent
shall not be required to issue stock certificates representing fractions of
shares of Common Stock, but may if otherwise permitted, make a cash payment in
respect of any final fraction of a share based on
<PAGE>
<PAGE>
the Per Share Market Value (as defined in the Resolutions) at such time. If
Parent elects not, or is unable, to make such a cash payment, the holder of a
Preference Share shall be entitled to receive, in lieu of the final fraction of
a share, one whole share of Common Stock.
4. The term of this Agreement shall commence upon the date hereof and
shall continue so long as any Preference Shares are outstanding and are
exchangeable into Common Stock.
5. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to conflict of laws
principles.
6. The Option Shares will not be registered under the Securities Act
of 1933, as amended (the "Act"), and therefor may not be transferred or sold
unless registered under the Act or pursuant to an exemption from registration
thereunder. The certificates evidencing the option Shares will bear an
appropriate restrictive legend.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date and year written above.
Asia Media Communications, Ltd.
TOM TUTTLE
By:_________________________
TOM TUTTLE
AMC International Holdings, Ltd.
EDWARD TOBIN
By:_________________________
EDWARD TOBIN
<PAGE>
<PAGE>
Exhibit 10.5
Written Consent
of the
Sole Director
of
AMC International Holdings, Ltd.
The undersigned, Edward J. Tobin, the sole director for the time being
of AMC International Holdings, Ltd., a British Virgin Islands corporation (the
"Company"), hereby adopts the following resolutions by written consent as
permitted under the Company's Articles of Association:
WHEREAS, the Company's Memorandum of Association authorizes the
issuance of 1000 preference shares, par value $1.00 per share (the Preference
Shares"), with such powers, preferences, rights, qualifications, limitations and
restrictions as shall be fixed by resolution of the Company's directors; and
WHEREAS, the directors desire, pursuant to their authority as
aforesaid, to fix the powers, preferences, rights, qualifications, limitations
and restrictions of the Preference Shares; and
WHEREAS, the Company's parent, Asia Media Communications, Ltd., a
Nevada corporation ("AMC"), has granted the Company an option to acquire, for no
consideration, such number of shares of AMC's common stock, par value US$0.01
per share (the "AMC Common Stock"), as may be required for the purpose of
effecting the exchange provided for herein,
NOW, THEREFORE, BE IT RESOLVED, that the powers, preferences, rights,
qualifications, limitations and restrictions of the Preference Shares shall be
as follows:
Section 1. Stated Value. Each Preference Share shall have a stated
value of $1,000,000.00 per share (the "Stated Value").
Section 2. Dividends. Holders of Preference Shares shall not be
entitled to receive dividends.
Section 3. Voting Rights. Except as otherwise provided herein and as
otherwise provided by law, the Preference Shares shall have no voting rights.
However, so long as any Preference Shares are outstanding, the Company shall
not, without the affirmative vote of the holders of three-fourths of the
Preference Shares then outstanding, (i) alter or change adversely the powers,
preferences or rights given to the Preference Shares or (ii) authorize or create
any class of shares ranking as to dividends or distribution of assets upon a
Liquidation (as defined below) senior to, prior to or pari passu with the
Preference Shares.
<PAGE>
<PAGE>
Section 4. Liquidation. Upon any liquidation, dissolution or
winding-up of the Company, whether voluntary or involuntary (a "Liquidation"),
the holders of Preference Shares shall be entitled to receive out of the assets
of the Company, whether such assets are capital or surplus, for each Preference
Share an amount equal to the Stated Value, but without interest, before any
distribution or payment shall be made to the holders of any Junior Securities,
and if the assets of the Company shall be insufficient to pay in full such
amounts, then the entire assets to be distributed shall be distributed among the
holders of Preference Shares ratably in accordance with the respective amounts
that would be payable on such shares if all amounts payable thereon were paid in
full. A sale, conveyance or disposition of all or substantially all of the
assets of the Company shall be deemed a Liquidation; provided that, a
consolidation or merger of the Company with or into any other Company or
Companies shall not be treated as a Liquidation, but instead shall be subject to
the provisions of Section 5. The Company shall mail written notice of any such
liquidation, not less than 60 days prior to the payment date stated therein, to
each record holder of Preference Shares.
Section 5. Exchange.
(a) Each Preference Share shall be exchangeable into shares of AMC
Common Stock at the Exchange Ratio at the option of the holder in whole or in
part at any time after the expiration of 100 days after the Original Issue Date.
The holder shall effect exchanges by surrendering to the Company the certificate
or certificates representing the Preference Shares to be exchanged, together
with the form of exchange notice attached hereto as Exhibit A (the "Holder
Exchange Notice") in the manner set forth in Section 5(h). The Company shall
effect such exchange by exercising the option granted to it by AMC. Each Holder
Exchange Notice shall specify the number of Preference Shares to be exchanged
and the date on which such exchange is to be effected, which date may not be
prior to the date the Holder delivers such Notice by facsimile (the "Holder
Exchange Date"). Subject to Section 5(c) and, as to the original Holder (or its
sole designee) each Holder Exchange Notice, once given, shall be irrevocable. If
the holder is exchanging less than all Preference Shares represented by the
certificate or certificates tendered by the holder with the Holder Exchange
Notice, the Company shall promptly deliver to the holder a certificate for such
number of shares as have not been exchanged.
(b) (i) Not later than ten Trading Days after the Exchange Date, the
Company will deliver or cause to be delivered to the holder (i) a certificate or
certificates representing the number of shares of AMC Common Stock being
acquired upon the exchange of Preference Shares and (ii) one or more
certificates representing the number of Preference Shares not exchanged;
provided, however that the Company shall not be obligated to issue certificates
evidencing the shares of AMC Common Stock issuable upon exchange of any
Preference Shares until certificates evidencing such Preference Shares are
either delivered for exchange to the Company, or the holder notifies the Company
that such certificates have been lost, stolen or destroyed and provides a bond
(or other adequate security reasonably acceptable to the Company) satisfactory
to the Company to indemnify the Company from any loss incurred by it in
connection therewith.
(c) (i) The exchange price for each Preference Share (the "Exchange
Price") in effect on any Exchange Date shall be US$2.00, unless adjusted
pursuant to Section 5(c)(ii) or (iv) below.
2
<PAGE>
<PAGE>
(ii) If AMC, at any time while any Preference Shares are
outstanding, (a) shall pay a stock dividend or otherwise make a distribution or
distributions on shares of its Junior Securities payable in shares of its
capital stock (whether payable in shares of AMC Common Stock or of capital stock
of any class), (b) subdivide outstanding shares of AMC Common Stock into a
larger number of shares, (c) combine outstanding shares of AMC Common Stock into
a smaller number of shares, or (d) issue by reclassification of shares of AMC
Common Stock any shares of capital stock of the Company, the Exchange Price
designated in Section 5(c)(i) shall be multiplied by a fraction of which the
numerator shall be the number of shares of AMC Common Stock outstanding before
such event and of which the denominator shall be the number of shares of AMC
Common Stock outstanding after such event. Any adjustment made pursuant to this
Section shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or distribution
and shall become effective immediately after the effective date in the case of a
subdivision, combination or re-classification.
(iii) All calculations under this Section 5 shall be made to the
nearest cent or the nearest 1/100th of a share, as the case may be.
(iv) In case of any reclassification of the AMC Common Stock, any
consolidation or merger of AMC with or into another Person, the sale or transfer
of all or substantially all of the assets of AMC or any compulsory share
exchange pursuant to which the AMC Common Stock is converted into other
securities, cash or property, the holders of the Preference Shares then
outstanding shall have the right thereafter to exchange such shares only into
the shares of stock and other securities and property receivable upon or deemed
to be held by holders of AMC Common Stock following such reclassification,
consolidation, merger, sale, transfer or share exchange, and the holders of the
Preference Shares shall be entitled upon such event to receive such amount of
securities or property as the shares of the AMC Common Stock into which such
Preference Shares could have been exchanged immediately prior to such
reclassification, consolidation, merger, sale, transfer or share exchange would
have been entitled. The terms of any such consolidation, merger, sale, transfer
or share exchange shall include such terms so as to continue to give to the
holder of Preference Shares the right to receive the securities or property set
forth in this Section 5(d)(vii) upon any exchange following such consolidation,
merger, sale, transfer or share exchange. This provision shall similarly apply
to successive reclassifications, consolidations, mergers, sales, transfers or
share exchanges.
(d) AMC has covenanted and agreed with the Company that it will at all
times reserve and keep available so long as any Preference Shares are
exchangeable for shares of AMC
3
<PAGE>
<PAGE>
Common Stock, out of AMC's authorized and unissued AMC Common Stock solely for
the purpose of issuance upon exchange of Preference Shares as herein provided,
free from preemptive rights or any other actual contingent purchase rights of
Persons other than the holders of Preference Shares, such number of shares of
AMC Common Stock as shall be issuable (taking into account the adjustments and
restrictions of Section 5 hereof) upon the exchange of all outstanding
Preference Shares. AMC has also covenanted and agreed that all shares of AMC
Common Stock that shall be so issuable shall, upon issue, be duly and validly
authorized, issued and fully paid and nonassessable.
(e) Upon an exchange hereunder AMC shall not be required to issue
stock certificates representing fractions of shares of AMC Common Stock, but may
if otherwise permitted, make a cash payment in respect of any final fraction of
a share based on the Per Share Market Value at such time. If AMC elects not, or
is unable, to make such a cash payment, the holder of a Preference Share shall
be, entitled to receive, in lieu of the final fraction of a share, one whole
share of AMC Common Stock.
(f) The issuance of certificates for shares of AMC Common Stock on
exchange of Preference Shares shall be made without charge to the holders
thereof for any documentary stamp or similar taxes that may be payable in
respect of the issue or delivery of such certificate, provided that the Company
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate upon
exchange in a name other than that of the holder of such Preference Shares so
exchanged and the Company shall not be required to issue or deliver such
certificates unless or until the Person or Persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
(g) Preference Shares exchanged into AMC Common Stock shall not be
canceled but shall be retained by the Company as treasury shares.
(h) Each Holder Exchange Notice shall be given by facsimile and by
mail, postage prepaid, addressed to the attention of the Chief Financial Officer
of the Company at the facsimile telephone number and address of the principal
place of business of the Company.
(i) The shares of AMC Common Stock to be acquired upon exchange of the
Preference Shares will not be registered under the United States Securities Act
of 1933, as amended (the "Act"), and therefore may not be transferred or sold
unless registered under the Act or pursuant to an exemption from registration
thereunder. The certificates evidencing such shares of AMC Common Stock shall
bear an approrpiate restrictive legend.
Section 6. Redemption.
(a) Each Preference Share shall be redeemable, in whole or in part, at
the
4
<PAGE>
<PAGE>
option of the Company at any time after the expiration of 90 days after the
Original Issue Date, out of funds legally available therefore, at a redemption
price equal to the Stated Value per share or a pro rata portion thereof in the
event of a redemption of a part of a Preference Share. The Company shall effect
such redemption by providing notice (a "Redemption Notice") to the holder at
least 10 Trading Days (the "Notice Period") prior to the date of redemption (the
"Redemption Date") of the Company's intention to redeem all or a portion of the
Preference Shares. Such Redemption Notice shall include details as to the number
of Preference Shares to be redeemed, the Redemption Date, and the procedures for
such redemption. The holder of the Preference Shares shall have the right during
the Notice Period to exchange the Preference Shares for AMC Common Stock as set
forth in Section 5.
(b) Preference Shares redeemed shall not be canceled and shall be
retained by the Company as treasury shares.
(c) Each Redemption Notice shall be given by facsimile and by mail,
postage prepaid, addressed to the attention of the registered holder of the
Preference Shares at the facsimile telephone number and address of the principal
place of business of the holder.
Section 7. Definitions. For the purposes hereof, the following terms
shall have the following meanings:
"Exchange Ratio" means, at any time, a fraction, of which the
numerator is Stated Value and of which the denominator is the Exchange Price at
such time.
"Junior Securities" means the common shares and all other classes of
shares of the Company (other than the Preference Shares) except as may be
approved by the holders of the Preference Shares as provided in Section 3
hereof.
"Original Issue Date" shall mean the date of the first issuance of any
of the Preference Shares regardless of the number transfers of any particular
Preference Shares and regardless of the number of certificates which may be
issued to evidence such Preference Shares.
"Per Share Market Value" means on any particular date the closing bid
price per share of AMC Common Stock on such date on such stock exchange on which
the AMC Common Stock has been listed or if there is no such price on such date,
then the closing bid price on such exchange on the date nearest preceding such
date, or if the AMC Common Stock is not quoted on any exchange, the closing bid
price for a share of AMC Common Stock in the over-the-counter market as reported
by the National Quotation Bureau Incorporated (or similar organization or agency
succeeding to its functions of reporting prices).
5
<PAGE>
<PAGE>
"Person" means a corporation, an association, a partnership,
organization, a business, an individual, a government or political subdivision
thereof or a governmental agency.
"Trading Day" means (a) a day on which the AMC Common Stock is traded
on any stock exchange on which the AMC Common Stock has been listed.
IN WITNESS WHEREOF, the undersigned sole director for the time being
of AMC International Holdings, Ltd. has executed this written consent as of the
27th day of December, 1996.
EDWARD J. TOBIN
---------------------------
Edward J. Tobin
6
<PAGE>
<PAGE>
NOTICE OF EXCHANGE
AT THE ELECTION OF HOLDER
(To be Executed by the Registered Holder in order to Exchange Preference Shares)
The undersigned hereby irrevocably elects to exchange the number of Preference
Shares indicated below, into shares of common stock, par value U.S.$0.01 per
share (the "Common Stock"), of Asia Media Communications Ltd. ("AMC") according
to the conditions hereof, as of the date written below. If shares are to be
issued in the name of a person other than undersigned, the undersigned will pay
all transfer taxes payable with respect thereto and is delivering herewith such
certificates and opinions as reasonably requested by AMC in accordance
therewith. No fee will be charged to the Holder for any exchange, except for
such transfer taxes, if any.
The undersigned hereby represents that it is acquiriing the shares of AMC Common
Stock for investment and not with a view to the distribution thereof. The
undersigned understands and acknowledges that (i) the shares of AMC Common Stock
will not be registered under the United States Securities Act of 1933, as
amended (the "Act"), and therefore may not be transfered or sold unless
registered under the Act or pursuant to an exemption from registration
thereunder and (ii) the certificates evidencing such shares will contain an
appropriate restrictive legend.
Exchange calculations: ______________________________________________
Date to Effect Exchange
______________________________________________
Number of Preference Shares
to be Exchanged
______________________________________________
Applicable Exchange Price
______________________________________________
Signature
______________________________________________
Name:
______________________________________________
Address:
7
<PAGE>
<PAGE>
December 1996
IPC CORPORATION LTD
ASIA MEDIA COMMUNICATIONS LTD.
and
AMC INTERNATIONAL HOLDING LTD.
----------------------------------------------------
SHARE ACQUISITION AGREEMENT
----------------------------------------------------
BLAKE DAWSON WALDRON
Solictors
101 Collins Street
MELBOURNE VIC 3000
Tel: (03) 9679 3000
Fax: (03) 9679 3111
DX: 187
File Ref: JWLA:501781
<PAGE>
<PAGE>
SHARE ACQUISITION AGREEMENT
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Clause Page No.
- ------ -------
<S> <C> <C>
1. INTERPRETATION........................................ 1
2. ACQUISITION OF SHARES................................. 4
3. PURCHASE PRICE........................................ 4
4. COMPLETION............................................ 4
5. WARRANTIES............................................ 5
6. INDEMNITY FOR BREACH OF WARRANTY...................... 6
7. OBLIGATIONS OF THE VENDOR PENDING COMPLETION.......... 6
8. PUBLIC ANNOUNCEMENT................................... 7
9. ACCESS................................................ 7
10. STAMP DUTY AND EXPENSES............................... 7
11. NO ASSIGNMENT......................................... 8
12. NOTICES............................................... 8
13. GENERAL............................................... 9
14. LAW AND JURISDICTION.................................. 10
</TABLE>
Schedule 1 - Details of Shares
Schedule 2 - Corporate Profile
Schedule 3 - Warranties
Schedule 4 - Encumbrances
<PAGE>
<PAGE>
ii.
Schedule 5 - Warranty Disclosures
Schedule 6 - Information to be provided by the Vendor
<PAGE>
<PAGE>
SHARE ACQUISITION AGREEMENT made December __, 1996.
BETWEEN:
(1) IPC CORPORATION LTD of 23 Tai Seng Drive, IPC Building, Singapore (the
"Vendor");
(2) ASIA MEDIA COMMUNICATIONS LTD a Nevada corporation of 1330 Avenue of the
Americas, New York, NY 10019 ("AMC"); and
(3) AMC INTERNATIONAL HOLDINGS LTD a British Virgin Islands corporation of
c/-40th Floor, 245 Park Avenue, New York, NY 10019 (the "Purchaser").
RECITALS
A. The Vendor is the sole and absolute beneficial owner of the number and
class of shares in the capital of IPC Corporation (Australia) Pty Ltd ACN
061 803 674 (the "Company") set out in schedule 1.
B. The shares held by the Vendor (the "Shares") constitute the whole of the
issued share capital of the Company.
C. The Company, carries on the business of selling computers and computer
equipment throughout Australia (the "Business").
D. The Vendor has agreed to sell and the Purchaser has agreed to purchase the
Shares on the terms and conditions set out below.
E. The Purchaser is a wholly owned subsidiary of AMC.
THE PARTIES AGREE AND DECLARE AS FOLLOWS:
1. INTERPRETATION
1.1 Definitions
In this agreement, unless the context otherwise requires:
"Balance Date" means 31 October 1996;
"Completion Date" means 31 December 1996 or any later date agreed by the
parties may agree;
"Directors" in relation to the Company means the persons so specified in
schedule 2;
"Encumbrance" means any mortgage, lien, charge, pledge, claim, covenant,
encumbrance or other interest including any right of any person to purchase
any of the Shares whether under an option, agreement to purchase or
otherwise and, in relation to the assets of the Company, including any
retention of title or any right of any person to purchase, occupy or use
any of
<PAGE>
<PAGE>
2.
those assets whether under an option, agrement to purchase, license, lease,
hire-purchase or otherwise;
"Preferred Stock" means US $25 million of the Preferred Stock issued by the
Purchaser in accordance with the terms set out in Annexure A;
"Secretary" and "Public Officer" in relation to the Company means the
person(s) so specified in schedule 2;
"Subsidiary" means IPC Wholesale Pty Ltd, ACN 061 803 638.
"Warranties" means the representations and warranties referred to in
clause 5.
1.2 General
In this agreement unless the context otherwise requires;
(a) a reference to any legislation or legislative provision includes any
statutory modification or re-enactment of, or legislative provision
substituted for, and any subordinate legislation issued under, that
legislation or legislative provision;
(b) the singular includes the plural and vice and versa;
(c) a reference to an individual or person includes a corporation,
partnership, joint venture, association, authority, trust, state or
government and vice versa;
(d) a reference to any gender includes all genders;
(e) a reference to a recital, clause, schedule, annexure or exhibit is to
a recital, clause, schedule, annexure or exhibit of or to this
agreement;
(f) a recital, schedule, annexure or a description of the parties forms
part of this agreement;
(g) a reference to any agreement or document is to that agreement or
document (and, where applicable, any of its provisions) as amended,
novated, supplemented or replaced from time to time;
(h) a reference to any party to this agreement or any other document or
arrangement includes that party's executors, administrators,
substitutes, successors and permitted assigns;
(i) where an expression is defined, another part of speech or grammatical
form of that expression has a corresponding meaning; and
(j) "notice" means a written communication.
<PAGE>
<PAGE>
3.
(k) a reference to a "subsidiary" of a body corporate is to a subsidiary
of that body corporate within the meaning of Part 1.2, Division 6 of
the Corporation Law;
(l) a reference to a "holding company" of a body corporate is to a body
corporate of which that body corporate is a subsidiary within the
meaning of Part 1.2, Division 6 of the Corporation Law;
(m) a reference to a "related body corporate" or a "related corporation"
of a body corporate is to a body corporate which is related to that
body corporation within the meaning of Section 50 of the Corporation
Law;
(n) a reference to "dollars" or "$" is to Australian currency;
(o) a reference to bankruptcy or winding up includes bankruptcy, winding
up, liquidation, dissolution, becoming an insolvent under
administration (as defined in section 9 of the Corporation Law),
being placed under official management and the occurrence of anything
analogous or having a substantially similar effect to any of those
conditions or matters under the law of any applicable jurisdiction,
and to the procedures, circumstances and events which constitute any
of those conditions or matters;
(p) a reference to a matter being "to the knowledge" of a person means
that the matter is to the best of the knowledge and belief of that
person after making reasonable enquiries in the circumstances;
(q) Where any party to this agreement is contracting in its capacity as
trustee, any reference to that party shall include any person from
time to time appointed as trustee of the relevant trust in addition
to or in substitution for that party;
(r) Any reference to a breach of any of the Warranties includes any of the
Warranties not being complete, true or correct;
(s) Words and phrases defined in the recitals or elsewhere in this
agreement shall have the meaning there ascribed to them;
(t) Where any obligation under this agreement fails to be performed on a
day other than a Business Day, this agreement shall be construed as
requiring that obligation to be performed on the next Business Day;
(u) Where any time period is required to be calculated from a specified
date, that date shall be excluded from the calculation; and
(v) The obligations of the Purchaser and AMC shall be joint and several.
<PAGE>
<PAGE>
4.
1.3 Headings
In this agreement, headings are for convenience of reference only and do
not affect interpretation.
2. ACQUISITION OF SHARES
2.1 The Vendor agrees to sell the Shares to the Purchaser and the Purchaser
agrees to purchase the Shares from the Vendor free from all Encumbrances
and with all rights attaching to them upon and subject to the terms and
conditions of this agreement.
3. PURCHASE PRICE
The purchase price for the Shares ("Purchase Price") is one dollar ($1.00).
The Vendor shall assign to the Purchaser all debts owed by the Company and
the Purchaser shall issue the Vendor the Preferred Stock.
4. COMPLETION
4.1 Completion of the sale and purchase of the Shares shall take place at
am/pm on the Completion Date at
4.2 At Completion, the Vendor shall deliver to the Purchaser:
(a) instruments of transfer of the Shares in favour of the Purchaser which
have been duly executed by the respective holders of the Shares and
are in registrable form, together with the share certificates for the
Shares, and any other documents which are necessary to vest full legal
and beneficial ownership of the Shares in the Purchaser;
(b) the certificate of incorporation of the Company and the Subsidiary
(and any certificate of incorporation on change of name of the Company
or the Subsidiary) and certificate for any registered business name;
(c) the common seal (and any duplicate common seal or official seal) of
the Company and the Subsidiary;
(d) all available copies of the memorandum and articles of association of
the Company and the Subsidiary;
(e) the balance sheets and profit and loss statements of the Company and
the Subsidiary as at, and for the period ended on, the Balance Date;
(f) the minute books and other records of meetings or resolution of
shareholders or directors of the Company and the Subsidiary and any
registers and other statutory records, books of account, trading and
financial records, copies of taxation returns and notices of
assessment and all other documents, papers and records of the Company
and the Subsidiary relating to its business activities, property or
financial affairs
<PAGE>
<PAGE>
5.
(in all cases in good order and fully and accurately maintained up to
Completion and in accordance with any applicable legal requirements);
(g) the written resignations of each Director, Secretary and Public
Officer of the Company and the Subsidiary in accordance with clause
4.3(c);
(h) an assignment of all debts owed by the Company to the Vendor.
4.3 At Completion the Vendor shall also procure that duly convened meetings of
the Directors of the Company and the Subsidiary are held at which it is
resolved:
(a) that each of the transfers of the Share be approved for registration
(subject only to the payment of stamp duty) and that upon
registration, the appropriate share certificate be issued in the name
of the Purchaser;
(b) to appoint as directors, secretary and public officer of the Company
and the Subsidiary with effect from the end of the meeting of the
Directors of the Company or the relevant Subsidiary (as the case may
be) the persons nominated in writing by the Purchaser;
(c) to accept the resignation of the existing Directors, Secretary and
Public Officer of the Company or the relevant Subsidiary (as the
case may be) with effect from the end of the meeting which resignation
shall acknowledge that it takes effect without any compensation or
entitlement (whether damages for loss of office or otherwise) as a
result;
(d) to revoke all existing authorities to operate bank accounts and to
procure new authorities in favour of the persons nominated by the
Purchaser; and
(e) to transact such other business as the Purchaser may reasonably
require.
4.4 Subject to clauses 4.2 and 4.3, at Completion the Purchaser shall pay the
Purchase Price and issue the Preferred Stock to the Vendor.
4.5 At Completion or as soon as practicable thereafter the Vendor will provide
to the Purchaser the information set out in Schedule 6.
5. WARRANTIES
5.1 The Vendor represents and warrants to the Purchaser and the Purchaser and
AMC represent and warrant to the Vendor in the terms set out in schedule 3
("Warranties"). The parties acknowledge that each other party has entered
into this agreement in reliance on the Warranties. The Warranties are
continuing warranties and shall not merge on Completion but shall remain
in full force and effect.
<PAGE>
<PAGE>
6.
5.2 The Warranties are subject to any exceptions disclosed in writing prior to
the date of this agreement (as identified in schedule 5) and are also
subject to any other matters particulars of which are fully disclosed in
schedule 5.
5.3 The liability of a party for breach of the Warranties shall be limited to
those breaches notified to the other parties within two year(s) from the
Completion Date (whether discovered before or after the Completion Date).
5.4 A party may, on or before the Completion Date, elect to treat any one or
more of the Warranties as a condition of the breach of which entitles it to
elect to accept such breach as putting an end to its obligations under this
agreement which have not then been performed but without limiting any and
all other of its rights and remedies arising upon the making of that
election.
5.5 A party shall not be liable for any particular claim for breach of Warranty
unless and until the claim when aggregated with all other claims (if any)
for breach of warranty exceed $5,000 PROVIDED THAT once the aggregate of
claims whenever arising exceeds $5,000 the party in breach shall be liable
for all losses suffered by the other party or parties (whether before or
after that threshold is reached) and not only the amount in excess of
$5,000.
6. INDEMNITY FOR BREACH OF WARRANTY
6.1 Subject to clause 5, the Vendor indemnifies and holds the Purchaser
harmless from and against all liabilities, losses, damages, costs or
expenses directly or indirectly incurred or suffered by the Purchaser
(including all reasonable legal fees and expenses) as a result of the
breach of any of the Warranties whether that breach arises before or after
the completion Date and from and against all actions, proceedings, claims
or demands made against the Purchaser as a result of any such breach.
6.2 Subject to clause 5, the Purchaser and AMC indemnify and hold the Vendor
harmless from and against all liabilities, losses, damages, costs or
expenses directly or indirectly incurred or suffered by the Vendor
(including all reasonable legal fees and expenses) as a result of the
breach of any of the Warranties whether that breach arises before or after
the Completion Date and from and against all actions, proceedings, claims
or demands made against the Vendor as a result of any such breach.
7. OBLIGATIONS OF THE VENDOR PENDING COMPLETION
7.1 The Vendor covenants that from the date of this agreement until Completion
it will procure that the Company and the Subsidiary carry on the Business
in the ordinary and normal course and that the Company does not:
(a) allot or issue or agree to allot or issue any shares, or options or
securities convertible into shares in the Company;
(b) alter or agree to alter its memorandum or articles of association, or
any material contract of the Company;
<PAGE>
<PAGE>
7.
(c) enter into or terminate any contract otherwise than in the ordinary
course of business;
(d) make any investment including the purchase or lease of plant,
equipment or machinery without the prior consent of the Purchaser;
(e) employ any new person or except as required by law, terminate or alter
the terms of employment or superannuation of or any other benefits
payable to any of the Employees;
(f) except in the ordinary course of business, dispose of, or agree to
dispose of, or grant an option to purchase any interest in any of the
assets of the Company;
(g) grant or agree to grant any Encumbrance over any interest in any of
the assets of the Company; or
(h) incur any expenditure or liability in excess of $10,000 or commitment
which has a duration of more than ninety (90) days or any other
commitment or liability otherwise than in the ordinary course of
business.
8. PUBLIC ANNOUNCEMENT
8.1 No party to this agreement shall make or cause to be made any public
announcement of, or in relation to, the sale and purchase of the Shares
without the prior written consent of each of the other parties except as
required by law.
9. ACCESS
9.1 Until the Completion Date, the Vendor shall give the Purchaser or its
representatives full and free access, during normal business hours, to the
premises at which the Business is conducted and the Vendor shall make
available to the Purchaser and its accountants and lawyers (free of
charge), all relevant books, books of account, records, contracts,
registers, and any other documents relating to the Company and the Business
(including computerised information) as the Purchaser, its accountants or
lawyers may reasonably request and the Purchaser its accountants or lawyers
may take copies thereof.
10. STAMP DUTY AND EXPENSES
10.1 The Vendor shall bear and be responsible for the payment of all and any
stamp duty payable on or in respect of this agreement, the sale, purchase
or transfer of the Shares or any instrument or transaction contemplated in
or necessary to give effect to this agreement. The Purchaser shall promptly
provide the Vendor with executed transfers of the Shares so as to permit
stamping. The Vendor shall not be liable for any penalties levied in
respect of such stamping if the delays are caused by the Purchaser.
<PAGE>
<PAGE>
8.
10.2 Each party shall bear and be responsible for its own legal and accounting
costs and expenses in connection with the preparation, completion and
carrying into effect of this agreement.
11. NO ASSIGNMENT
11.1 No party to this agreement shall assign or purport to assign its rights or
obligations under this agreement, without the prior written consent of the
other parties.
12. NOTICES
12.1 Method of Giving Notices
A notice under this agreement must be signed by or on behalf of the person
giving it, it must be addressed to the person to whom it is to be given and
be:
(a) delivered at that person's address; or
(b) sent by pre-paid mail to that person's address; or
(c) transmitted by facsimile to that person's address.
12.2 Time of Receipt
A notice given to a party in accordance with this clause is treated as
having been given and received:
(a) if delivered to a party's address, on the day of delivery if a
Business Day, otherwise on the next Business Day;
(b) if sent by pre-paid mail, on the third Business Day after posting;
(c) if transmitted by telex to a party's address and that party's
answerback is received, on the day of transmission if a Business Day,
otherwise on the next Business Day; and
(d) if transmitted by facsimile to a party's address and a correct and
complete transmission report is received, on the day of transmission
if a Business Day, otherwise on the next Business Day.
12.3 Address of Parties
For the purpose of this clause the address of a party is the address set
out below or another address of which that party may from time to time give
notice to each other party:
Party 1: IPC Corporation Ltd
Attention: Patrick Ngiam
<PAGE>
<PAGE>
9.
Address: 23 Tai Seng Drive
IPC Building
Singapore
Facsimile: (65) 287 5845
Party 2: Asia Media Communications Ltd.
Attention: The President
Address: 1330 Avenue of the Americas
New York, NY 10019
Facsimile: (212) 265 4035
Party 3: AMC International Holdings Ltd.
Attention: The Secretary
Address: c/- 40th Floor
245 Park Avenue
New York, NY 10019
Facsimile: (212) 692 1900
13. GENERAL
13.1 Waiver
The non-exercise of or delay in exercising any power or right of a party
does not operate as a waiver of that power or right nor does any single
exercise of a power or right preclude any other or further exercise of it
or the exercise of any other power or right. A power or right may only be
waived in writing signed by the party to be bound by the waiver.
13.2 Amendment
This agreement may only be amended or supplemented in writing, signed by
the parties.
13.3 Severability
Any provision in this agreement which is invalid or unenforceable in any
jurisdiction is to be read down for the purposes of that jurisdiction, if
possible, so as to be valid and enforceable, and is otherwise capable of
being severed to the extent of the invalidity or unenforceability, without
affecting the remaining provisions of this agreement or affecting the
validity or enforceability of that provision in any other jurisdiction.
<PAGE>
<PAGE>
10.
13.4 Counterparts
This agreement may be executed in any number of counterparts and all of
those counterparts taken together constitute one and the same instrument.
13.5 Further Assurances
Each party shall do, sign, execute and deliver and shall procure that each
of its employees and agents does, signs, executes and delivers, all deeds,
documents, instruments and acts reasonably required of it or them by notice
from another party to effectively carry out and give full effect to this
agreement and the rights and obligations of the parties under it.
13.6 Entire agreement
This agreement is the entire agreement of the parties on the subject
matter. The only enforceable obligations and liabilities of the parties in
relation to the subject matter are those that arise out of the provisions
contained in this agreement. All representations, communications and prior
agreements in relation to the subject matter are merged in and superseded
by this agreement.
14. LAW AND JURISDICTION
14.1 Governing Law
This agreement is governed by the law in force in Victoria.
14.2 Submission to Jurisdiction
The parties submit to the non-exclusive jurisdiction of the courts of
Victoria and any courts which may hear appeals from those courts in respect
of any proceedings in connection with this agreement.
EXECUTED as an agreement.
SIGNED by PATRICK NGIAM on )
behalf of IPC CORPORATION LTD in )
the presence of: )
)
.....................................
Witness PATRICK NGIAM
Name (printed): ..................... ...................................
Name (printed): PATRICK NGIAM
<PAGE>
<PAGE>
11.
SIGNED on behalf of ASIA MEDIA )
COMMUNICATIONS LTD. in the )
presence of: )
)
..................................... EDWARD J. TOBIN
Witness ...................................
Name (printed):
Name (printed): Edward J. Tobin
...................
SIGNED for and on behalf of AMC )
INTERNATIONAL HOLDINGS LTD )
in the presence of: )
..................................... EDWARD J. TOBIN
Witness ...................................
Name (printed):
Name (printed): Edward J. Tobin
...................
<PAGE>
<PAGE>
12.
SCHEDULE 1
IPC CORPORATION (AUSTRALIA) PTY LTD
DETAILS OF SHARES
<TABLE>
<CAPTION>
Shareholder Capacity No. and Class Allocation
(acting as of Shares of Purchase
trustee/ Held Price
in own
right
<S> <C> <C> <C>
IPC Beneficial 23,649,999 All
Corporation owner
Limited
Benjamin Mia Kait Ngiam Legal owner 1 Nil
</TABLE>
<PAGE>
<PAGE>
13.
SCHEDULE 2
CORPORATE PROFILE
<TABLE>
<S> <C>
IPC Corporation (Australia) Pty Ltd IPC Wholesale Pty Ltd
Incorporated in Incorporated in
Victoria Victoria
A.C.N. 661 803 674 A.C.N. 061 803 638
Authorised Authorised
Capital: $23,650,000 Capital: One Million Dollars
divided into divided into
23,650,000 One million Ordinary
Shares of one dollar each Shares of one dollar each
Issued Issued
Capital: 23,650,000 Capital: Two (2)
fully paid shares fully paid shares
of one dollar each of one dollar each
Directors Directors
Patrick Mia Je Ngiam Patrick Mia Je Ngiam
Bernard Mia Hai Ngiam Bernard Mia Hai Ngiam
Benjamin Mia Kait Ngiam
Secretary Secretary
Leon Jack Slade Leon Jack Slade
</TABLE>
<PAGE>
<PAGE>
14.
SCHEDULE 3
VENDOR WARRANTIES
In these Vendor Warranties any reference to the "Company" means the "Company and
the Subsidiary" and these Warranties shall read, construed and take effect
accordingly.
The Company
1. The Company is duly incorporated and validly existing under the laws of the
jurisdiction specified in schedule 2 and the Company has full power and
authority to own its property and assets and conduct its business.
2. The copy of the memorandum and articles of association of the Company,
certified by its Secretary on the date of execution of this agreement, is
and remains a true copy of the memorandum and articles of association of
the Company.
3. To the best of the knowledge and belief of the Vendor, the minute books and
other records of meetings or resolutions of shareholders or directors of
the Company and any registers and other statutory records, books of
account, trading and financial records, copies of taxation returns and all
other documents, papers and records of the Company relating to its business
activities, property or financial affairs are complete, true and accurate
in all respects and have been prepared in accordance with applicable legal
requirements.
4. For the period of five years prior to the Completion Date, all returns,
particulars, resolutions and other documents required to be delivered by
the Company, under the Companies (Victoria) Code or otherwise to the
Commissioner for Corporate Affairs in Melbourne and in each State or
Territory where the Company carries on business, or under the Corporations
Law or otherwise to the Australian Securities Commission, have been duly
delivered.
5. Since the Balance Date, no dividend in respect of any issued shares in the
Company has been declared or paid and since that date there has been no
other distribution of property or assets to shareholders of the Company.
6. The Company has not granted any power of attorney otherwise than as is
usual in the ordinary course of its business.
7. The Company is not a member of any partnership, joint venture or
unincorporated association.
8. The Directors, Secretary and Public Officer of the Company are as set out
in schedule 2.
<PAGE>
<PAGE>
15.
9. The authorized and issued share capital of the Company are as set out in
schedule 2.
10. Save for the Subsidiary (which is wholly owned), the Company does not hold
or have any legal or beneficial interest in any shares in any other company
or person nor has it contracted to take up or acquire any shares in any
other company.
11. There is no agreement, arrangement or understanding to which the Company or
the Vendor is a party which gives a right to any person upon a change in
the management or control of or ownership of shares in the Company.
The Shares
12. The Vendor is the sole and absolute beneficial owner of the number and
class of shares in the capital of the Company set out in schedule 1, free
and clear of any Encumbrance and the Vendor has full power and authority to
transfer the full legal and beneficial ownership to the Shares to the
Purchaser on Completion.
13. Each of the Shares has been duly issued and allotted and is fully paid.
14. The Shares comprise the whole of the issued share capital of the Company
and there are no securities on issue which are convertible into or
exchangeable for shares in the Company.
15. There are no agreements in force pursuant to which any person is or may be
entitled to or has the right to call for the issue of any shares in the
Company or securities convertible into or exchangeable for shares in the
Company nor has the Company given, granted or agreed to grant any option or
right (whether contingent or not) in respect of its unissued shares.
16. There are no restrictions on transfer of the Shares under the articles of
association of the Company which will not be complied with or waived at or
prior to Completion.
17. No person is entitled to recover from the Company any fee, brokerage or
commission in connection with the purchase or sale of the Shares.
This Agreement
18. The execution, delivery and performance of this agreement by the Vendor has
been duly and validly authorised by all necessary corporate action on its
part and this agreement is a valid and binding agreement of the Vendor
enforceable in accordance with its terms.
19. The entering into this agreement by the Vendor does not, and the
transactions contemplated by it will not, result in a breach of the
memorandum or articles of association of the Company or the Vendor, or any
agreement to which the
<PAGE>
<PAGE>
16.
Company or the Vendor is party or by which the Company or the Business may
be affected in any way.
Business and Assets
20. Since the Balance Date, the Business has been conducted in the ordinary and
normal course and the Company conducts no business other than the Business.
21. The Company has good and marketable title to all its property and assets
free from any Encumbrance and there is no agreement to give or create any
Encumbrance and no claim has been made by any person to be entitled to any
Encumbrance.
22. The property and assets of the Company comprise all the assets used in
connection with or necessary for the continuing conduct of the Business
(including the benefit of any contracts which are used by the Company in
the Business).
23. All plant and equipment used in the conduct of the Business is in good
repair and condition (normal wear and tear excepted).
24. Save for the provision for bad or doubtful debts in relation to the
Business for which full and adequate provision is made in the Accounts
provided by the Vendor at Completion, all receivables and debtors of the
Company are good and collectable in the ordinary course of business.
25. Since the Balance Date, the Company has not disposed of, agreed to dispose
of or granted any option to purchase any of its property or assets
otherwise than in the ordinary course of its business.
26. Except for license agreements with the Vendor or its subsidiaries, there
are no users licensees or parties with any other rights with respect to any
patents or trade marks or business names of the Company or to access any of
the trade secrets of the Company other than the applicants for those
patents or trade marks and business names and only in respect of the
patents or trade mark(s) and business names of which they are the
applicant.
Accounts & Financial Position
27. The balance sheet and profit and loss statement of the Company as at the
Balance Date disclose a true and fair view of the state of affairs and the
financial position of the Company as at the Balance Date and for the period
ending on it in accordance with all applicable laws and regulations, and
the accounting policies and practices previously applied by the Company's
external accountants and consistent with generally accepted accounting
principles under the Australian Accounting Standards, the Corporations Law
and Corporations Regulations and other applicable legislation.
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17.
28. Since the Balance Date there has been no occurrence which has or could
(either itself or together with any other occurrence) materially and
adversely affect the value of the Shares, the financial position,
profitability or prospects of the Company, the Business or any of its
property or assets.
29. There are no actual or contingent liabilities of, or unasserted against
the Company (including contractual commitments) other than as disclosed in
its balance sheet as at the Balance Date and since the Balance Date the
Company has not incurred any actual or contingent liability (including
contractual commitments) otherwise than in the ordinary course of business.
30. No receiver or administrator has been appointed over any part of its
property or assets and no such appointment has been threatened.
31. The Company is not in liquidation or official management and no proceedings
have been brought or notice served for the purpose of liquidating the
Company or placing it in official management.
32. The books of account and other trading and financial records give a true
and fair view of the state of affairs and financial position of the Company
and the Business as at the Completion Date (and to the best of the
knowledge and belief of the Vendor, at all other relevant dates and for the
relevant periods) in accordance with all applicable laws and regulations,
and the accounting policies and practices previously applied by the
Company's external accountants and consistent with generally accepted
accounting principles under the Australian Accounting Standards, the
Corporations Law and Corporations Regulations and other applicable
legislation.
Information
33. The information (other than in relation to the Purchaser) contained in the
schedules and recitals to this agreement is complete, true and accurate in
all respects.
Litigation, compliance with laws, etc.
34. There is no unsatisfied judgement, order, arbitral award or decision of
any Court, tribunal or arbitrator against the Company or any of its
property or assets.
35. The Company is not in default under its memorandum or articles of
association or any statute or under any decree, order, rule, by-law or
regulation or any government, statutory, municipal body or organisation
having jurisdiction over any of them and the entering into this agreement
will not result in a contravention of any of them.
36. The Vendor has no knowledge of any breach or unenforceability or invalidity
of or grounds for rescission, avoidance or repudiation of any of the
contracts, deeds or instruments to which the Company is a party.
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18.
37. To the best of the knowledge and belief of the Vendor there are no
statutory or other notices restricting or prohibiting the carrying on of
the Business on any way.
PURCHASER - AMC WARRANTIES
In these Purchaser-AMC Warranties any reference to the "Purchaser" means "the
Purchaser and AMC" and these warranties shall be read construed and take effect
accordingly.
1. The Purchaser is duly incorporated and validly existing under the laws of
its place of incorporation.
2. The Purchaser has full power and authority to enter into this agreement and
carry out the obligations hereunder.
3. The execution, delivery and performance of this agreement by the Purchaser
(including the issuing of the Preferred Stock by the Purchaser and the
shares by AMC) has been duly and validly authorized by all necessary
corporate action on its part and this agreement is a valid and binding
agreement of the Purchaser enforceable in accordance with its terms.
4. The entering into of this agreement by the Purchaser does not, and the
transaction contemplated by it will not, result in the breach of the
memorandum and articles of association of the Purchaser, any relevant law
or any agreement to which the Purchaser is a party.
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19.
SCHEDULE 4
ENCUMBRANCES
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20.
SCHEDULE 5
WARRANTY DISCLOSURES BY THE VENDOR
WARRANTY DISCLOSURES BY THE PURCHASER AND AMC
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21.
SCHEDULE 6
INFORMATION TO BE PROVIDED BY THE VENDOR
Particulars/detail of:
1. Employee contracts and pension/superannuation entitlements.
2. Threatened/actual litigation against the Company and the Subsidiary.
3. Material contracts (i.e. contracts having a value of not less than $
4. Warranty claims having estimated value of and not less than $
5. Intellectual property rights.
6. Insurance policies/claims.
7. Licenses/permits (if any) required to construct the Business.
8. Bank accounts/signatories.
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EXHIBIT 10.7
EQUITY HOLDERS AGREEMENT
This agreement ("Agreement") is by and between AMC International Holdings
Ltd, a BVI Corporation ("AMCH") and IPC Corporation Ltd, a Singapore corporation
("IPC").
Whereas, AMCH, and its parent company Asia Media Communications, Ltd., a Nevada
Corporation ("AMC"), and IPC have entered into an acquisition agreement (the
"Acquisition Agreement"), dated 31 December, 1996 whereby AMCH has acquired 100%
of the common stock of IPC (Corporation) Pty Ltd., an Australian corporation
("IPCA") from IPC, in return for US$20 million in Exchangeable Preferred Shares
of AMCH (the "Pref Shares").
Whereas, the Pref Shares are exchangeable into common shares of AMC, pursuant to
terms of the Acquisition Agreement and the Resolutions of the Board of AMCH
creating the Pref Shares;
Whereas, the parties wish to agree to certain terms and conditions and have thus
entered into this Agreement:
Now therefore, the parties agree as follows:
1. IPC agrees never to exercise its right to exchange the Pref Shares into
common shares of AMC so long as the terms of the Acquisition Agreement and
this Agreement have not been breached;
2. AMCH will redeem the Pref Shares from, and only from, the following funds
as cash becomes available:
a. 100% of any net cash realized from the sale or liquidation of any
currently owned assets and from the existing ongoing business
operations of IPCA (net of any liabilities);
b. 90% of any net cash generated from new projects or business operations
of IPCA which have been introduced to IPCA by IPC or its directors or
officers;
c. 80% of any net cash generated from new projects or business operations
of IPCA which have been introduced to IPCA by AMCH or others.
3. The parties agree that any new business entered into by IPCA, or
contributed to IPCA by either AMCH or AMC, will be identified to IPC in
writing (prior to its initiation) as in to which category of Paragraph 2
it will fall.
4. Any new business to be introduced or contributed to IPCA by IPC will be
identified and agreed to between IPC and AMCH in writing (prior to
consummation of any transaction) as in to which category of Paragraph 2
it will fall.
This Agreement may be signed in counterpart by the parties hereto.
This Agreement is entered into this 1st day of April, 1997.
AMC International Holdings Ltd. IPC Corporation Ltd.
________________________________ ___________________________
Edward J. Tobin Patrick Ngiam
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EXHIBIT 10.8
VOID AFTER 5:00 P.M., NEW YORK TIME ON AUGUST 1, 2001
WARRANT TO PURCHASE 1,000,000 SHARES OF COMMON STOCK
____________________
WARRANT TO PURCHASE COMMON STOCK
OF
ASIA MEDIA COMMUNICATIONS, LTD.
____________________
THIS WARRANT AND THE SHARES OF COMMON STOCK
ISSUABLE PURSUANT TO THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS REGISTERED UNDER
THE ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVISIONS OF REGULATION S PROMULGATED UNDER THE ACT.
IN ANY EVENT, UNTIL AUGUST 1, 1998 THIS WARRANT AND THE SHARES OF
COMMON STOCK ISSUED OR TO BE ISSUED UPON EXERCISE THEREOF
MAY NOT BE SOLD OR OFFERED FOR SALE BY THE HOLDER OR
DELIVERED TO ANY U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A
U.S. PERSON.
IN CONSIDERATION OF $50,000 RECEIVED, Asia Media Communications, Ltd.,
a Nevada corporation (the "Company"), grants the following rights to Ocean
Strategic Holdings Limited, a Guernsey corporation ("Holder"):
ARTICLE 1. DEFINITIONS.
As used herein, the following terms shall have the following meanings, unless
the context shall otherwise require:
(a) "Common Stock" shall mean the common stock, par value $0.01
per share, of the Company.
(b) "Corporate Office" shall mean the office of the Company (or
its successor) at which at any particular time its principal business shall be
administered.
(c) "Exercise Date" shall mean any date upon which the Holder
shall give the Company a Notice of Exercise.
(d) "Exercise Price" shall mean the price to be paid to the
Company
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for each share of Common Stock to be purchased upon exercise of this Warrant in
accordance with the terms hereof which shall be $0.01 per share.
(e) "Expiration Date" shall mean 5:00 p.m. (New York time) on
August 1, 2001.
(f) "Regulation S" shall mean Regulation S as promulgated under
the Act.
(g) "SEC" shall mean the United States Securities and Exchange
Commission.
(h) "Transfer Agent" shall mean American Securities Transfer, as
the Company's transfer agent, or its authorized successor, as such.
(i) "Underlying Shares" shall mean the shares of the Common Stock
issuable upon exercise of the Warrant.
ARTICLE 2. EXERCISE AND AGREEMENTS.
2.1 Exercise of Warrant. This Warrant shall entitle Holder to purchase
up to 1,000,000 shares of Common Stock (the "Shares") at the Exercise Price.
This Warrant shall be exercisable at any time after August 1, 1998 and from time
to time prior to the Expiration Date (the "Exercise Period"). This Warrant and
the right to purchase Shares hereunder shall expire and become void at the
Expiration Date.
2.2 Manner of Exercise.
(a) Holder may exercise this Warrant at any time and from time to
time during the Exercise Period, in whole or in part (but not in denominations
of fewer than 10,000 Shares, except upon an exercise of this Warrant with
respect to the remaining balance of Shares purchasable hereunder at the time of
exercise), by delivering to the Escrow Agent (as defined in an escrow agreement
dated of the same date between the Company and the Holder) (i) a duly executed
Notice of Exercise in substantially the form attached as Appendix 1 hereto and
(ii) a bank cashier's or certified check for the aggregate Exercise Price of the
Shares being purchased.
(b) From time to time upon exercise of this Warrant, in whole or
part, in accordance with its terms, the Escrow Agent will deliver stock
certificates to the Holder representing the number of Shares being purchased
pursuant to such exercise, subject to adjustment as described herein.
(c) Promptly following any exercise of this Warrant, if the
Warrant has not been fully exercised and has not expired, the Company will
deliver to the Holder a new Warrant for the balance of the Shares covered
hereby.
2.3 Termination. All rights of the Holder in this Warrant, to the
extent they have not been exercised, shall terminate on the Expiration Date.
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2.4 No Rights Prior to Exercise. Prior to its exercise pursuant to
Section 2.2 above, this Warrant shall not entitle the Holder to any voting or
other rights as holder of Shares.
2.5 Adjustments. In case of any reclassification, capital
reorganization, stock dividend or other change of outstanding shares of Common
Stock, or in case of any consolidation or merger of the Company with or into
another corporation (other than a consolidation or merger in which the Company
is the continuing corporation and which does not result in any reclassification,
capital reorganization, stock dividend or other change of outstanding shares or
Common Stock), or in case of any sale or conveyance to another corporation of
the property of the Company as, or substantially as, an entirety (other than a
sale/leaseback, mortgage or other financing transaction), the Company shall
cause effective provision to be made so that the Holder shall have the right
thereafter, by exercising this Warrant, to purchase the kind and number of
shares of stock or other securities or property (including cash) receivable upon
such reclassification, capital reorganization, stock dividend or other change,
consolidation, merger, sale or conveyance as the Holder would have been entitled
to receive had the Holder exercised this Warrant in full immediately before such
reclassification, capital reorganization, stock dividend or other change,
consolidation, merger, sale or conveyance. Any such provision shall include
provision for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 2.5. The foregoing
provisions shall similarly apply to successive reclassifications, capital
reorganizations, stock dividends and other changes of outstanding shares of
Common Stock and to successive consolidations, mergers, sales or conveyances.
Notwithstanding anything to the contrary contained herein, if the Company shall
complete a "reverse split" of its shares into a smaller number of outstanding
shares, the number of shares issuable upon exercise of this Warrant, and the
Exercise Price, shall remain unchanged.
2.6 Fractional Shares. No fractional Shares shall be issuable upon
exercise or conversion of this Warrant and the number of Shares to be issued
shall be rounded down to the nearest whole Share. If a fractional Share interest
arises upon any exercise or conversion of the Warrant, the Company shall
eliminate such fractional Share interest by paying Holder the amount computed by
multiplying the fractional interest by the closing bid price of a full Share on
the date of the Notice of Exercise.
2.7 Limitation on Exercise. In no event shall Holder be entitled to
exercise any portion of this Warrant such that upon giving effect to such
exercise, the aggregate number of shares of Common Stock beneficially owned by
the Holder and its affiliates would exceed 9.9% of the outstanding shares of the
Common Stock following such exercise. For purposes of the foregoing proviso, the
aggregate number of shares of Common Stock beneficially owned by the Holder and
its affiliates shall include the number of shares of Common Stock issuable upon
exercise of the Warrant with respect to which the determination of such proviso
is being made, but shall exclude the number of shares of Common Stock which
would be issuable upon (i) exercise of the remaining Warrant beneficially owned
by the holder and its affiliates and (ii) exercise or conversion of the
unexercised or unconverted portion of any other securities of the Company
(including, without limitation, any warrants) subject to a limitation on
conversion or exercise analogous to the limitation contained herein beneficially
owned by the holder and its affiliates. Except as set forth in the preceding
sentence, for purposes of this paragraph, beneficial ownership shall be
calculated in accordance with Section 13(d) of the Securities Exchange Act of
1934, as amended. The Holder may waive the foregoing limitations by written
notice to the Company upon not less than 61 days prior notice (with such waiver
taking effect only upon the expiration of such 61 day notice period).
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ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 Representations and Warranties. The Company hereby represents and
warrants to the Holder as follows:
(a) All Shares which may be issued upon the exercise of the
purchase right represented by this Warrant shall, upon issuance, be duly
authorized, validly issued, fully-paid and nonassessable, and free of any liens
and encumbrances except for restrictions on transfer provided for herein or
under applicable federal and state securities laws, and not subject to any
pre-emptive rights.
(b) The Company is a corporation duly organized and validly
existing under the laws of the State of Nevada, and has the full power and
authority to issue this Warrant and to comply with the terms hereof. The
execution, delivery and performance by the Company of its obligations under this
Warrant, including, without limitation, the issuance of the Shares upon any
exercise of the Warrant have been duly authorized by all necessary corporate
action. This Warrant has been duly executed and delivered by the Company and is
a valid and binding obligation of the Company, enforceable in accordance with
its terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting enforceability of
creditors' rights generally and except as the availability of the remedy of
specific enforcement, injunctive relief or other equitable relief is subject to
the discretion of the court before which any proceeding therefor may be brought.
(c) The Company is not subject to or bound by any provision of any
certificate or articles of incorporation or by-laws, mortgage, deed of trust,
lease, note, bond, indenture, other instrument or agreement, license, permit,
trust, custodianship, other restriction or any applicable provision of any law,
statute, rule, regulation, judgment, order, writ, injunction or decree of any
court, governmental body, administrative agency or arbitrator which could
prevent or be violated by or under which there would be a default (or right of
termination) as a result of the execution, delivery and performance by the
Company of this Warrant.
(d) The Company is eligible to issue securities exempt from
registration pursuant to Regulation S promulgated under the Securities Act.
ARTICLE 4. REPRESENTATIONS OF THE HOLDER.
4.1 Representations and Warrants. The Holder hereby represents and
warrants to the Holder as follows:
(a) The Holder is not a "U.S. person" within the meaning of
Regulation S. In general, "U.S. person" means (A) any natural person resident in
the United States; (B) any partnership or corporation organized or incorporated
under the laws of the United States; (C) any estate of which any executor or
administrator is a U.S. person; (D) any trust of which any trustee is a U.S.
person; (E) any agency or branch of a foreign entity located in the United
States; (F) any non-discretionary or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account of a U.S.
person; (G) any partnership or
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corporation if (i) organized or incorporated under the laws of any foreign
jurisdiction, and (ii) formed by a U.S. person principally for the purpose of
investing in securities not registered under the Act, unless it is organized or
incorporated, and owned, by accredited investors (as defined in Rule 501(a)
promulgated under the Act who are not natural persons, estates or trusts. For
purposes of this Agreement, the United States includes the United States of
America, its territories and possessions, any state of the United States and the
district of Columbia.
(b) The Holder is not organized under the laws of any jurisdiction
within the United States, its territories or possessions, and was not formed for
the purpose of investing in Regulation S securities, (ii) at the time this
Warrant was acquired by Holder and the time this Warrant was executed and any
offer to purchase this Warrant or the Underlying Shares hereunder was made, the
Holder was physically outside the United States; (iii) the Holder has acquired
this Warrant and the Underlying Shares (the Warrant and the Underlying shares
are herein collectively referred to as the "Securities") for its own account and
not on behalf of or for the benefit of any U.S. person and the sale of the
Securities has not been prearranged with any buyer in the United States; (iv)
the Holder hereby agrees that to its knowledge all offers and sales of the
Securities prior to the expiration of a period commencing on the date hereof and
ending forty days thereafter (the "Restricted Period") shall not be made to U.S.
persons or for the account or benefit of U.S. Persons and shall otherwise be
made in compliance with the provisions of Regulation S. The Holder is not a
distributor or dealer.
(c) The Holder is acquiring this Warrant and the Underlying Shares
for its own account for investment and not as a nominee and not with a view to
the distribution thereof. Holder represents and warrants to the Company that it
has no preexisting plan to sell the Warrant or the Underlying Shares in the
United States at any particular time following the expiration of the Restricted
Period. Holder covenants that neither Holder not its affiliates nor any person
acting on its or their behalf has the intention of entering, or will enter,
during the Restricted Period, into any put option, short position or other
similar instrument or position with respect to the Underlying Shares or
securities of the same class as the Underlying Shares and neither Holder not any
of its affiliates not any person acting on its or their behalf will use at any
time Underlying Shares acquired pursuant to this Agreement or upon conversion of
the shares to settle any put option, short position or other similar instrument
or position that may have been entered into prior to the execution of this
Agreement.
ARTICLE 5. MISCELLANEOUS.
5.1 Transfer. This Warrant may not be transferred or assigned, in
whole or in part, at any time, except in compliance with applicable federal and
state securities laws by the transferor and the transferee (including, without
limitation, the delivery of an investment representation letter and a legal
opinion reasonably satisfactory to the Company) and the Company will refuse to
register any transfer of this Warrant or the Underlying Shares not made in
accordance with the provisions of Regulation S. This Warrant may not be
transferred or assigned such that either the Holder or any transferee will,
following such transfer or assignment, hold a Warrant for the right to purchase
fewer than 5,000 Shares.
5.2 Transfer Procedure. Subject to the provisions of Section 5.1,
Holder may transfer or assign this Warrant by giving the Company notice setting
forth the name, address and taxpayer identification number of the transferee
or assignee, if applicable (the "Transferee") and
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surrendering this Warrant to the Company for reissuance to the Transferee (and
the Holder, in the event of a transfer or assignment of this Warrant in part).
(Each of the persons or entities in whose name any such new Warrant shall be
issued are herein referred to as a Holder").
5.3 Loss, Theft, Destruction or Mutilation. If this Warrant shall
become mutilated or defaced or be destroyed, lost or stolen, the Company shall
execute and deliver a new Warrant in exchange for and upon surrender and
cancellation of such mutilated or defaced Warrant or, in lieu of and in
substitution for such Warrant so destroyed, lost or stolen, upon the Holder
filing with the Company evidence satisfactory to it that such Warrant has been
so mutilated, defaced, destroyed, lost or stolen. However, the Company shall be
entitled, as a condition to the execution and delivery of such new Warrant, to
demand indemnity satisfactory to it and payment of the expenses and charges
incurred in connection with the delivery of such new Warrant. Any Warrant so
surrendered to the Company shall be canceled.
5.4 Notices. All notices and other communications from the Company to
the Holder or vice versa shall be deemed delivered and effective when given
personally, by facsimile transmission and confirmed in writing or mailed by
first-class registered or certified mail, postage prepaid at such address and/or
facsimile number as may have been furnished to the Company or the Holder, as the
case may be, in writing by the Company or the Holder from time to time.
5.5 Waiver. This Warrant and any term hereof may be changed, waived,
or terminated only by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought.
5.6 Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to its
principles regarding conflicts of law.
Dated: August 1, 1997
Asia Media Communications, Ltd.
By: EDWARD TOBIN
----------------------------
Name: Edward Tobin
Title: President
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APPENDIX 1
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase ___ shares of the Common
Stock of Asia Media Communications, Ltd. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full.
2. Please issue a certificate or certificates representing said
shares in the name of the undersigned or in such other name as is specified
below:
3. The undersigned (the 'Holder') hereby represents that:
(a) The Holder is not a 'U.S. person' within the meaning of
Regulation S. In general, 'U.S. person' means (A) any natural person resident in
the United States; (B) any partnership or corporation organized or incorporated
under the laws of the United States; (C) any estate of which any executor or
administrator is a U.S. person; (D) any trust of which any trustee is a U.S.
person; (E) any agency or branch of a foreign entity located in the United
States; (F) any non-discretionary or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account of a U.S.
person; (G) any partnership or corporation if (i) organized or incorporated
under the laws of any foreign jurisdiction, and (ii) formed by a U.S. person
principally for the purpose of investing in securities not registered under the
Act, unless it is organized or incorporated, and owned, by accredited investors
(as defined in Rule 501(a) promulgated under the Act who are not natural
persons, estates or trusts. For purposes of this Agreement, the United States
includes the United States of America, its territories and possessions, any
state of the United States and the district of Columbia.
(b) The Holder is not organized under the laws of any jurisdiction
within the United States, its territories or possessions, and was not formed for
the purpose of investing in Regulations S securities; (ii) at the time this
Warrant was acquired by Holder and the time this Warrant was executed and any
offer to purchased this Warrant of the Underlying Shares hereunder was made, the
Holder was physically outside the United States; (iii) the Holder has acquired
this Warrant the the Underlying Shares (the Warrant and the Underlying Shares
are herein collectively referred to as the 'Securities') for its own account and
not on behalf of or for the benefit of any U.S. person and the sale of the
Securities has not been prearranged with any buyer in the United States; (iv)
the Holder hereby agrees that to its knowledge all offers and sales of the
Securities prior to the expiration of a period commencing on the date hereof and
ending one year thereafter (the 'Restricted Period') shall not be made to U.S.
persons or for the account or benefit of U.S. Persons and shall otherwise be
made in compliance with the provisions of Regulation S. The Holder is not a
distributor or dealer.
(c) The Holder is acquiring this Warrant and the Underlying Shares
for its own account for investment and not as a nominee and not with a view to
the distribution thereof. Holder represents and warrants to the Company that it
has no preexisting plan to sell the Warrant or the Underlying Shares in the
United States at any particular time following the expiration of the Restricted
Period. Holder covenants that neither Holder nor its affiliates nor any person
acting on its or their behalf has the intention of entering, or will enter,
during the Restricted Period, into any put option, short position or other
similar instrument or position with
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respect to the Underlying Shares or securities of the same class as the
Underlying Shares and neither Holder nor any of its affiliates nor any person
acting on its or their behalf will use at any time Underlying Shares acquired
pursuant to this Agreement or upon conversion of the shares to settle any put
option, short position or other similar instrument or position that may have
been entered into prior to the execution of this Agreement.
(d) it is acquiring the shares solely for its own account and not
as a nominee for any other party and not with a view toward the resale or
distribution thereof except in compliance with applicable securities laws.
-----------------------------
(Signature)
- -----------------------------
(Date)
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================================================================================
SHARE PURCHASE AGREEMENT
BY AND BETWEEN
PARTHANON INVESTMENT CORPORATION, AS BUYER
AND
ASIA MEDIA COMMUNICATIONS, LTD., AS SELLER,
----------------------------
SEPTEMBER 1, 1997
-----------------------------
================================================================================
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SHARE PURCHASE AGREEMENT, dated as of September 1, 1997, by and between
Parthanon Investment Corporation, a corporation formed under the laws of the
Turks and Caicos ("Buyer"), and Asia Media Communications, Ltd., a Nevada
corporation (the "Seller").
W I T N E S S E T H :
WHEREAS, Buyer desires to purchase 100 common shares, par value $1.00 per
share (collectively, the "Shares"), of AMC International Holdings, Ltd., a
British Virgin Islands corporation (the "Company"), from the Seller, and the
Seller desires to sell the Shares to Buyer, effective as of December 31, 1996
(the "Effective Date"),
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
representatives and warranties contained herein, the parties hereto do hereby
agree as follows:
1. TRANSFER OF SHARES, CONSIDERATION AND OTHER MATTERS
1.1 Transfer of Shares. Subject to the terms and conditions of this
Agreement, Seller hereby sells, assigns, transfers, conveys and delivers to
Buyer, and Buyer hereby purchases and acquires from Seller, effective as of the
Effective Date, good and marketable title to the Shares, free and clear of all
mortgages, liens, encumbrances, claims, equities and obligations to other
persons of every kind and character. The Shares constitute all of the issued and
outstanding common shares of the Company on the date hereof. Simultaneously
herewith, Seller is delivering to Buyer a certificate duly endorsed for transfer
or accompanied by a duly executed stock power in blank, together with such other
documents or instruments, if any, as may be necessary to convey the Shares to
Buyer as provided herein.
1.2 Consideration. The purchase price for the Shares purchased by Buyer is
$10.00 payable to Seller on the date hereof. In addition, Buyer hereby agrees
to assume, effective as of the Effective Date, the liabilities of Seller under
that certain Share Acquisition Agreement, dated December 31, 1996 (the "IPC
Agreement"), among Seller, the Company and IPC Corporation Ltd., a Singaporean
corporation ("IPC"), pursuant to which the Company acquired all of the issued
and outstanding capital stock of IPC (Corporation) Pty. Ltd., an Australian
corporation ("IPC Australia"), from IPC effective as of January 1, 1996.
2. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents, warrants and covenants to and with Buyer as an
inducement to Buyer to enter into this Agreement and to consummate the
transactions contemplated hereby as follows:
2.1 Authorization of Agreement. Seller is a corporation duly organized,
validly existing and in good standing under the laws of Nevada and has full
power and authority to own its properties and to carry on its business as now
being or as heretofore conducted. Seller has the corporate power and authority
to execute and deliver this Agreement and any other agreement or instrument
contemplated by this Agreement and to perform its covenants and agreements
hereunder and thereunder. This Agreement and any such other agreement or
instrument, upon execution and delivery by Seller (and assuming due execution
and delivery hereof and thereof by the other parties hereto and thereto), will
constitute a valid and legally binding obligation of Seller, in each case
enforceable against it in accordance with its terms except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws from time to time in effect which affect
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creditors' rights generally and by legal and equitable limitations on the
availability of specific performance and other equitable remedies against Seller
under or by virtue of this Agreement or such other agreement or instrument.
2.2 Ownership of the Shares. Seller is the sole record and beneficial owner
of the Shares. Seller owns the Shares free and clear of any lien, pledge,
encumbrance, charge, security interest, claim or right of another and has the
absolute right to sell and transfer the Shares to Buyer without the consent of
any other person or entity. Upon transfer of the Shares to Buyer hereunder,
Buyer will acquire good and marketable title to the Shares free and clear of any
lien, pledge, encumbrance, charge, security interest, claim or right of another.
2.3 No Seller's Defaults. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby,
violates any statute, ordinance, regulation, order, judgment or decree of any
court or governmental agency, or conflicts with or will result in any breach of
any of the terms of or constitute a default under or result in the termination
of or the creation of any lien upon the Shares pursuant to the terms of any
contract or agreement to which Seller is a party or by which Seller or any of
her assets is bound.
2.4 Obligations; Authorizations. Seller is not (i) in violation of any
judgment, order, injunction, award or decree which is binding on it or any of
its assets, properties, operations or business which violation, by itself or in
conjunction with any other such violation, would materially and adversely affect
the consummation of the transactions contemplated hereby; or (ii) in violation
of any law or regulation or any other requirement of any governmental body,
court or arbitrator relating to her or her assets, operations or business which
violation, by itself or in conjunction with other violations of any other law,
regulation or other requirement, would materially adversely affect the
consummation of the transactions contemplated hereby.
2.5 Consents. All requisite consents of third parties, including, but not
limited to, governmental or other regulatory agencies, federal, state or
municipal, required to be received by or on the part of Seller for the execution
and delivery of this Agreement and the performance of its obligations hereunder
have been obtained and are in full force and effect. Seller has fully complied
with all conditions of such consents.
2.6 Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the British Virgin Islands and
has full power and authority to own, lease and operate its properties and to
carry on its business as now being and as heretofore conducted. The Company is
not qualified or licensed to do business as a foreign corporation in any
jurisdiction and has not transacted any business since incorporation. The
Company does not own or have the right to acquire any assets other than (a)
23,649,999 shares (the "IPC Shares") of the capital stock of IPC Australia, and
(b) an option (the "AMC Option") to acquire shares of Seller's common stock upon
exchange of the Company's preference shares. The IPC Shares constitute all of
the issued and outstanding capital stock of IPC Australia.
2.7 Capitalization. The total authorized capital stock of the Company as of
the date of this Agreement consists of 49,000 common shares of which 100 common
shares, par value $1.00 per share, are issued and outstanding and 1000
preference shares, par value $1.00 per share, of which 25 preference shares are
issued and outstanding. The preference shares are entitled to the powers,
rights, preferences, privileges and limitations set forth in the resolutions
attached hereto as Schedule 2.7. There are no subscriptions, options or other
agreements or commitments obligating the Company to issue any shares of its
capital stock or securities convertible into its capital stock.
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2.8 Certificate of Incorporation and By-laws. Annexed hereto as Schedule
2.8 is a true and complete copy of the Memorandum of Association and Articles of
Association of the Company as in effect on the date hereof.
2.9 Officers and Directors. Attached hereto as Schedule 2.9 is a list of
the names and titles of all officers and directors of the Company, together with
their resignations.
2.10 Liabilities, etc.. On the date hereof there are no liabilities, debts
or obligations of the Company, whether accrued, absolute, contingent or
otherwise ("Liabilities"), except for (a) the liabilities of the Company under
the IPC Agreement and under a letter agreement, dated April 1, 1997, between the
Company and IPC, a true and correct copy of each of which has been furnished to
the Buyer, and (b) liabilities incurred in the ordinary course for legal and
corporate services fees and expenses that do not exceeed $____________in the
aggregate.
2.11 Actions and Proceedings. The Company is not subject to any outstanding
orders, writs, injunctions or decrees of any court or arbitration tribunal or
any governmental department, commission, board, agency or instrumentality,
domestic or foreign, against, involving or affecting the business, properties or
employees of the Company or Seller's right to enter into, execute and perform
this Agreement. There are no actions, suits, claims or legal, administrative or
arbitration proceedings or investigations, including any warranty or product
liability claims relating to or arising out of the business, properties or
employees of the Company pending or, to the best knowledge of the Seller,
threatened against or affecting the Company.
2.12 Compliance with Laws. The Company has complied in all material
respects with all laws, ordinances, regulations and orders applicable to the
conduct of its business, including all laws relating to environmental matters,
employees and working conditions.
2.13 Bank Accounts and Credit Cards. As of the date hereof, the Company
does not have any bank account, safe deposit box or credit or charge cards.
3. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
3.1 Organization, Power and Authority. Buyer is a corporation duly
organized, existing and in good standing under the laws of the Turks and Caicos
and has full power and authority to own its properties and to carry on its
business as now being or as heretofore conducted. Buyer has the corporate power
and authority to execute and deliver this Agreement and any other agreement or
instrument contemplated by this Agreement and to perform its covenants and
agreements hereunder and thereunder.
3.2 Legal and Authorized Transaction; Authority; No Breach. This Agreement,
and such other agreement or instrument contemplated by this Agreement, upon
execution and delivery by Buyer (and assuming due execution and delivery hereof
and thereof by the other parties hereto and thereto), will constitute the legal,
valid and binding obligation of Buyer, in each case enforceable against Buyer in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
from time to time in effect which affect creditors' rights generally and by
legal and equitable limitations on the availability of specific performance and
other equitable remedies against the Buyer under or by virtue of this Agreement
or such other agreement or instrument. Neither the execution and delivery of
this Agreement, or any such other agreement or instrument by Buyer, nor the
consummation of the transactions contemplated
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hereby or thereby, will (i) violate, conflict with or result in the breach or
termination of, or otherwise give any other contracting party the right to
terminate, or constitute a default under the terms of, any mortgage, bond,
indenture or material agreement to which Buyer is a party or by which Buyer or
any of his property or assets may be bound or materially affected, (ii) violate
any judgment, order, injunction, decree or award of any court, administrative
agency or governmental body against, or binding upon, Buyer or upon the
securities, property or business of Buyer, or (iii) constitute a violation by
Buyer of any applicable law or regulation of any jurisdiction as such law or
regulation relates to Buyer or to the property or business of Buyer.
3.3 No Litigation, Etc. There is no material suit, action, or legal,
administrative, arbitration or other proceeding or governmental investigation
pending or, to Buyer's best knowledge, threatened against, materially affecting
or which will materially affect, the business or property of Buyer, or to
Buyer's best knowledge does there exist any basis therefor.
3.4 Investment Intent. Buyer is acquiring the Shares for its own account
and is purchasing the Shares for investment purposes and not with a view to
distribution or resale, nor with the intention of selling, transferring or
otherwise disposing of all or any part of the Shares except in compliance with
all applicable provisions of the Securities Act of 1933, as amended (the "Act"),
the rules and regulations promulgated by the SEC thereunder, and applicable
state securities laws. The Shares acquired by Buyer from Seller are "restricted
securities" as that term is defined under Rule 144 of the Act, and any sales of
the Shares made in reliance upon Rule 144 can be made only in limited amounts in
accordance with the terms and conditions of that Rule and will require an
opinion of counsel satisfactory to the Company and Company counsel that
registration is not required under the Act or state securities laws.
3.5 No Reliance. BUYER ACKNOWLEDGES AND AGREES THAT SELLER HAS MADE AND
MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED HEREBY OTHER THAN THOSE SPECIFICALLY SET FORTH IN SECTION 2 HEREOF.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ACKNOWLEDGES THAT SELLER
HAS MADE NO REPRESENTATION OR WARRANTY REGARDING THE CONDITION, FINANCIAL OR
OTHERWISE, OF IPC AUSTRALIA. IN ENTERING INTO THIS AGREEMENT AND CARRYING OUT
THE TRANSACTION CONTEMPLATED HEREBY, BUYER HAS RELIED UPON ITS OWN INDEPENDENT
INVESTIGATION OF IPC AUSTRALIA AND UNDERSTANDS THAT THE LIABILITIES OF IPC
AUSTRALIA EXCEED ITS ASSETS AND THAT UNDER THE IPC AGREMEENT AMHL ACQUIRED IPC
AUSTRALIA EFFECTIVE AS OF JANUARY 1, 1996.
4. COVENANTS AND AGREEMENTS OF THE PARTIES.
4.1 Brokers. Seller and Buyer represent and warrant to the other that each
has not employed any broker, finder or similar agent and no person or entity
with which each has had any dealings or communications of any kind is entitled
to any brokerage, finder's or placement fee or any similar compensation in
connection with this Agreement or the transaction contemplated hereby.
4.2 Expenses. Each of the parties hereto agrees to bear its own expenses
incurred in connection with the preparation, execution and performance of this
Agreement and the transactions contemplated hereby, including without
limitation, all fees and expenses of agents, representatives, counsel and
accountants.
4.3 Further Assurances. Each of the parties shall execute such documents or
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
in this Agreement.
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4.4 Certain Matters. Buyer agrees that it will never cause or permit the
Company to issue any preference shares other than the 25 preference shares
issued and outstanding on the date hereof. Buyer further agrees to cause the
Company as soon as practicable to take such action as may be necessary or
appropriate to reduce the total authorized number of preference shares that the
Company may issue from 1,000 to 25.
4.5 Books and Records. Simultaneous with the execution of the Agreement,
Seller will deliver or cause to be delivered to Buyer all of the books and
records of the Company, including, without limitation, the financial books and
records of the Company, and the stock transfer and minute book(s) of the
Company.
5. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
5.1 Nature of Statements. All statements contained in any Schedule,
certificate or other instruments delivered by or on behalf of any party hereto
pursuant to this Agreement, shall be deemed representations and warranties by
such party.
5.2 Survival of Representations and Warranties and Indemnities. Regardless
of any investigation at any time made by or on behalf of any party hereto or of
any information any party may have in respect thereof, all covenants,
agreements, representations and warranties made hereunder or pursuant hereto or
in connection with the transactions contemplated hereby, and the agreements of
indemnity for claims set forth in Section 6, 7 and 8 hereof, shall survive the
execution and delivery of this Agreement and continue in effect through the
first anniversary of this Agreement, and any claims for indemnity with respect
thereto, shall continue in effect until the expiration of the applicable statute
of limitations. If written notice of a violation or breach of any specified
representation, warranty or covenant is given to the party charged with such
violation or breach during the applicable period specified herein, such
representation, warranty or covenant, and the right to indemnification with
respect thereto, shall continue to survive until such matter has been resolved
by settlement, litigation (including all appeals related thereto) or otherwise.
6. INDEMNIFICATION BY SELLER.
6.1 Claims Against the Company. Seller shall indemnify and hold Buyer
harmless from and against any loss, damage or expense (including reasonable
attorneys' fees) caused by or arising out of any claim made against the Company:
(i) for any broker's or finder's fee or any similar fee, charge or
commission incurred by the Company prior to or in connection with this Agreement
or the transactions contemplated hereby;
(ii) for any foreign, Federal, state or local tax of any kind arising
out of or by reason of the existence or operations of the Company prior to the
date of this Agreement, including, without limitation, any payroll taxes owed by
the Company on account of compensation paid to any employee of the Company prior
to such date;
(iii) in respect of any salary, bonus, wages or other compensation of
any kind owed by the Company to its employees for services rendered on or prior
to the date of this Agreement;
(iv) for any damages to the environment caused by or arising out of
any pollution resulting from or otherwise attributable to the operation of the
business of the Company prior to the date of this Agreement;
(v) in respect of any liability or indebtedness for borrowed money or
otherwise incurred on or before the date of this Agreement except as disclosed
provided herein.
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(b) Other Matters. Seller shall also indemnify and hold Buyer harmless
from and against any loss, damage or expense (including reasonable attorneys'
fees) caused by or arising out of (i) any breach or default in the performance
by the Seller of any covenant or agreement of the Seller contained in this
Agreement, (ii) any breach of warranty or inaccurate or erroneous representation
made by the Seller herein or in any Schedule, certificate or other instrument
delivered by or on behalf of the Seller pursuant hereto, and (ii) any and all
actions, suits, proceedings, claims, demands, judgments, costs and expenses
(including reasonable legal and accounting fees) incident to any of the
foregoing.
7. INDEMNIFICATION BY BUYER.
7.1 Claims Against Seller. Buyer shall indemnify and hold harmless Seller
from and against all loss, damage or expense (including reasonable attorneys'
fees) caused by or arising out of (i) any breach or default in the performance
by Buyer of any covenant or agreement of Buyer contained in this Agreement,
including the liabilities of Seller expressly assumed hereunder by Buyer, (ii)
any breach of warranty or inaccurate or erroneous representation made by Buyer
herein or in any certificate or other instrument delivered by or on behalf of
Buyer pursuant hereto and (iii) any and all actions, suits, proceedings, claims,
demands, judgments, costs and expenses (including reasonable legal and
accounting fees) incident to the foregoing.
8. NOTICE AND OPPORTUNITY TO DEFEND.
8.1 Participation. Promptly after the receipt by Buyer or Seller of notice
of any action, proceeding, claim or potential claim (any of which is hereinafter
individually referred to as a "Circumstance") which could give rise to a right
to indemnification under this Agreement, such party (the "Indemnified Party")
shall give prompt written notice to the party or parties who may become
obligated to provide indemnification hereunder (the "Indemnifying Party"). Such
notice shall specify in reasonable detail the basis and amount, if
ascertainable, of any claim that would be based upon the Circumstance. The
failure to give such notice promptly shall relieve the Indemnifying Party of its
indemnification obligations under this Agreement, unless the Indemnified Party
establishes that the Indemnifying Party either had knowledge of the Circumstance
or was not prejudiced by the failure to give notice of the Circumstance. The
Indemnifying Party shall have the right, at its option, to compromise or defend
the claim, at its own expense and by its own counsel, and otherwise control any
such matter involving the asserted liability of the Indemnified Party, provided
that any such compromise or control shall be subject to obtaining the prior
written consent of the Indemnified Party which shall not be unreasonably
withheld. An Indemnifying Party shall not be liable for any costs of settlement
incurred without the written consent of the Indemnifying Party. If any
Indemnifying Party undertakes to compromise or defend any asserted liability, it
shall promptly notify the Indemnified Party of its intention to do so, and the
Indemnified Party agrees to cooperate fully with the Indemnifying Party and its
counsel in the compromise of or defense against any such asserted liability. All
costs and expenses incurred in connection with such cooperation shall be borne
by the Indemnifying Party, provided such costs and expenses have been previously
approved by the Indemnifying Party. In any event, the Indemnified Party shall
have the right at its own expense to participate in the defense of an asserted
liability.
9. MISCELLANEOUS
9.1 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
successors and assigns. No assignment of this Agreement or of any rights
hereunder shall relieve the assigning party of any of its obligations or
liabilities hereunder.
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9.2 Notices. All notices or other communications required or permitted to
be given hereunder shall be in writing and shall be deemed to have been duly
given if delivered by hand, prepaid telex, cable or telegram and confirmed in
writing, or mailed first class, postage prepaid, by registered or certified
mail, return receipt requested (mailed notices and notices sent by telex, cable
or telegram shall be deemed to have been given on the date sent) as follows:
(a) If to Seller, as follows:
Asia Media Communications, Ltd.
1330 Avenue of the Americas
New York, NY 10019
Attn.: Edward J. Tobin
(b) If to Buyer, as follows:
PMB 7 Hibiscus Square
Grand Turk
Turks and Caicos
or in any case to such other address or addresses as hereafter shall be
furnished as provided in this Section 9.2 by any of the parties hereto to the
other parties hereto.
9.3 Waiver; Remedies. No delay on the part of Seller or Buyer in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of Sellers or Buyer of any right, power or
privilege hereunder operate as a waiver of any other right, power or privilege
hereunder, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise of any other right,
power or privilege hereunder. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies which the parties
hereto may otherwise have at law or in equity.
9.4 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements or understandings of the parties relating thereto.
9.5 Amendment. This Agreement may be modified or amended only by written
agreement of the parties hereto.
9.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute a single instrument.
9.7 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within the State of New York.
9.8 Captions. All section titles or captions contained in this Agreement,
in any Schedule referred to herein or in any Exhibit annexed hereto are for
convenience only, shall not be deemed a part of this Agreement and shall not
affect the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered on the day and year first above written.
BUYER:
PARTHANON INVESTMENT CORPORATION
By:______________________________________
SELLER:
ASIA MEDIA COMMUNICATIONS, LTD.
By:__________________________________
Edward J. Tobin
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NO: 210525
[LOGO]
Schedule 2.8
British Virgin Islands
The International Business Companies Act
(Cap. 291)
Memorandum of Association
and
Articles of Association
of
AMC INTERNATIONAL HOLDINGS, LTD.
Incorporated the 24th day of December, 1996.
Harney Westwood & Riegels
Craigmuir Chambers
Road Town
Tortola
British Virgin Islands
[SEAL]
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TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ACT
(CAP 291)
MEMORANDUM OF ASSOCIATION
OF
AMC INTERNATIONAL HOLDINGS, LTD.
NAME
1. The name of the Company is AMC International Holdings, Ltd.
REGISTERED OFFICE
2. The Registered Office of the Company will be at Craigmuir Chambers, P.O. Box
71, Road Town, Tortola, British Virgin Islands.
REGISTERED AGENT
3. The Registered Agent of the Company will be HWR Services Limited of Craigmuir
Chambers, P.O. Box 71, Road Town, Tortola. British Virgin Islands.
GENERAL OBJECTS AND POWERS
4. (1) The object of the Company is to engage in any act or activity that is
not prohibited under any law for the time being in force in the British
Virgin Islands;
(2) The Company may not
(a) carry on business with persons resident in the British Virgin
Islands;
(b) own an interest in real property situate in the British Virgin
Islands, other than a lease referred to in paragraph (e) of
subclause (3);
(c) carry on banking or trust business, unless it is licensed to do so
under the Banks and Trust Companies Act, 1990;
(d) carry on business as an insurance or reinsurance company, insurance
agent or insurance broker. unless it is licensed under an enactment
authorizing it to carry on that business;
(e) carry on the business of company management unless it is licensed
under the Company Management Act, 1990; or
[SEAL]
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(f) carry on the business of providing the registered office or the
registered agent for companies incorporated in the British Virgin
Islands.
(3) For purposes of paragraph (a) of subclause (2), the Company shall not be
treated as carrying on business with persons resident in the British
Virgin Islands if
(a) it makes or maintains deposits with a person carrying on banking
business within the British Virgin Islands;
(b) it makes or maintains professional contact with solicitors,
barristers, accountants, bookkeepers, trust companies, administration
companies, investment advisers or other similar persons carrying on
business within the British Virgin Islands;
(c) it prepares or maintains books and records within the British Virgin
Islands;
(d) it holds, within the British Virgin Islands, meetings of its
directors or members;
(e) it holds a lease of property for use as an office from which to
communicate with members or where books and records of the Company
are prepared or maintained;
(f) it holds shares, debt obligations or other securities in a company
incorporated under the International Business Companies Act or under
the Companies Act; or
(g) shares, debt obligations or other securities in the Company are owned
by any person resident in the British Virgin Islands or by any
company incorporated under the International Business Companies Act
or under the Companies Act.
(4) The Company shall have all such powers as are permitted by law for the
time being in force in the British Virgin Islands, irrespective of
corporate benefit, to perform all acts and engage in all activities
necessary or conducive to the conduct, promotion or attainment of the
object of the Company.
CURRENCY
Shares in the Company shall be issued in the currency of the United States of
America.
AUTHORIZED CAPITAL
The authorized capital of the Company is US$50,000.00.
[SEAL]
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CLASSES. NUMBER AND PAR VALUE OF SHARES
7. The authorized capital is made up of two classes of shares of one series
each, namely.
(a) 49,000 Common Shares of $1.00 par value; and
(b) 1.000 Preference Shares of $1.00 par value.
DESIGNATIONS, POWERS. PREFERENCES, ETC. OF SHARES
8. (1) Each Common Share shall carry the right to one vote.
(2) The Preference Shares shall not carry the right to vote.
(3) Subject to the foregoing. the designations, powers, preferences, rights,
qualifications. limitations and restrictions of each class and series of
the shares that the Company is authorized to issue shall be fixed by
resolution of directors, but the directors shall not allocate different
rights as to voting, dividends. redemption or distributions on
liquidation unless the Memorandum of Association creates or shall have
been amended to create separate classes of shares and all the aforesaid
rights as to voting, dividends, redemption and distributions shall be
identical in each separate class
VARIATION OF CLASS RIGHTS
9. If at any time the authorized capital is divided into different classes or
series of shares, the rights attached to any class or series (unless
otherwise provided by the terms of issue of the shares of that class or
series) may, whether or not the Company is being wound up, be varied with
the consent in writing of the holders of not less than three-fourths of
the issued shares of that class or series and of the holders of not less
than three-fourths of the issued shares of any other class or series of
shares which may be affected by such variation.
RIGHTS NOT VARIED BY THE ISSUE OF SHARES PARI PASSU
10. The rights conferred upon the holders of the shares of any class issued with
preferred or other rights shall not, unless otherwise expressly provided by
the terms of issue of the shares of that class, be deemed to be varied by
the creation or issue of further shares ranking pari passu therewith.
[SEAL]
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REGISTERED SHARES AND BEARER SHARES
11. Shares may be issued as registered shares or to bearer as may be determined
by a resolution of directors.
EXCHANGE OF REGISTERED SHARES AND BEARER SHARES
12. Registered shares may be exchanged for bearer shares and bearer shares may
be exchanged for registered shares.
TRANSFER OF REGISTERED SHARES
13. Subject to the provisions relating to the transfer of shares set forth in
the Articles of Association annexed hereto (the "Articles of Association")
registered shares in the Company may be transferred subject to the prior or
subsequent approval of the Company as evidenced by a resolution of directors
or by a resolution of members.
SERVICE OF NOTICE ON HOLDERS OF BEARER SHARES
14. Where shares are issued to bearer, the bearer. identified for this purpose
by the number of the share certificate, shall be requested to provide the
Company with the name and address of an agent for service of any notice,
information or written statement required to be given to members, and
service upon such agent shall constitute service upon the bearer of such
shares until such time as a new name and address for service is provided to
the Company. In the absence of such name and address being provided it shall
be sufficient for the purposes of service for the Company to publish the
notice, information or written statement or a summary thereof in one or more
newspapers published or circulated in the British Virgin Islands and in such
other place, if any, as the Company shall from time to time by a resolution
of directors or a resolution of members determine. The directors of the
Company must give sufficient notice of meetings to members holding shares
issued to bearer to allow a reasonable opportunity for them to secure or
exercise the right or privilege that is the subject of the notice other than
the right or privilege to vote, as to which the period of notice shall be
governed by the Articles of Association. What amounts to sufficient notice
is a matter of fact to be determined after having regard to all the
circumstances.
AMENDMENT OF MEMORANDUM AND ARTICLES OF ASSOCIATION
15. The Company may amend its Memorandum of Association and Articles of
Association by a resolution of members or by a resolution of directors.
[SEAL]
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DEFINITIONS
16. The meanings of words in this Memorandum of Association are as defined in
the Articles of Association
We, HER SERVICES LIMITED, of Craigmuir Chambers, Road Town, Tortola, British
Virgin Islands for the purpose of incorporating an International Business
Company under the laws of the British Virgin Islands hereby subscribe our name
to this Memorandum of Association the 24th day of December, 1996 in the
presence of:
Witness Subscriber
/s/ CRAIGMUIR CHAMBERS /s/ ALI MUDEEN
................................. ....................................
Craigmuir Chambers Authorized Signatory
Road Town, Tortola HWR Services Limited
[SEAL]
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TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ACT
(Cap. 291)
ARTICLES OF ASSOCIATION
OF
AMC INTERNATIONAL HOLDINGS, LTD.
PRELIMINARY
1. In these Articles, if not inconsistent with the subject or context, the
words and expressions standing in the first column of the following table
shall bear the meanings set opposite them respectively in the second column
thereof.
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<CAPTION>
Words Meaning
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<S> <C>
capital The sum of the aggregate par value of all outstanding
shares with par value of the Company and shares with par
value held by the Company as treasury shares plus
(a) the aggregate of the amounts designated as capital of
all outstanding shares without par value of the
Company and shares without par value held by the
Company as treasury shares, and
(b) the amounts as are from time to time transferred from
surplus to capital by a resolution of directors.
member A person who holds shares in the Company.
person An individual, a corporation, a trust, the estate of a
deceased individual, a partnership or an unincorporated
association of persons.
resolution of (a) A resolution approved at a duly convened and
directors constituted meeting of directors of the Company or of
a committee of directors of the Company by the
affirmative vote of a simple majority of the
directors presents at the meeting who voted and did
not abstain; or
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<S> <C>
(b) a resolution consented to in writing by all directors
or of all members of the committee, as the case may
be;
except that where a director is given more than one vote,
he shall be counted by the number of votes he casts for
the purpose of establishing a majority.
resolution of (a) A resolution approved at a duly convened and
members constituted meeting of the members of the Company by
the affirmative vote of
(i) a simple majority of the votes of the shares
entitled to vote thereon which were present at
the meeting and were voted and not abstained, or
(ii) a simple majority of the votes of each class or
series of shares which were present at the
meeting and entitled to vote thereon as a class
or series and were voted and not abstained and
of a simple majority of the votes of the
remaining shares entitled to vote thereon which
were present at the meeting and were voted and
not abstained; or
(b) a resolution consented to in writing by
(i) an absolute majority of the votes of the shares
entitled to vote thereon, or
(ii) an absolute majority of the votes of each class
or series of shares entitled to vote thereon as
a class or series and of an absolute majority
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<S> <C>
of the votes of the remaining shares entitled to
vote thereon;
securities Shares and debt obligations of every kind, and options,
warrants and rights to acquire shares, or debt
obligations.
surplus The excess, if any, at the time of the determination of
the total assets of the Company over the aggregate of its
total liabilities, as shown in its books of account, plus
the Company's capital.
the Act The International Business Companies Act (CAP 291)
including any modification, extension, re-enactment or
renewal thereof and any regulations made thereunder.
the Memorandum The Memorandum of Association of the Company as
originally framed or as from time to time amended.
the Seal Any Seal which has been duly adopted as the Seal of the
Company.
these Articles These Articles of Association as originally framed or as
from time to time amended.
treasury shares Shares in the Company that were previously issued but
were repurchased, redeemed or otherwise acquired by the
Company and not cancelled.
</TABLE>
2. "Written" or any term of like import includes words typewritten, printed,
painted, engraved, lithographed, photographed or represented or reproduced
by any mode of reproducing words in a visible form, including telex,
facsimile, telegram, cable or other form of writing produced by electronic
communication.
3. Save as aforesaid any words or expressions defined in the Act shall bear the
same meaning in these Articles.
4. Whenever the singular or plural number, or the masculine, feminine or neuter
gender is used in these Articles, it shall equally, where the context
admits, include the others.
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5. A reference in these Articles to voting in relation to share. shall be
construed as a reference to voting by members holding the shares except that
it is the votes allocated to the shares that shall be counted and not the
number of members who actually voted and a reference to shares being present
at a meeting shall be given a corresponding construction.
6. A reference to money in these Articles is, unless otherwise stated, a
reference to the currency in which shares in the Company shall be issued
according to the provisions of the Memorandum.
REGISTERED SHARES
7. Every member holding registered shares in the Company shall be entitled to a
certificate signed by a director or officer of the Company and under the
Seal specifying the share or shares held by him and the signature of the
director or officer and the Seal may be facsimiles.
8. Any member receiving a share certificate for registered shares shall
indemnify and hold the Company and its directors and officers harmless from
any loss or liability which it or they may incur by reason of any wrongful
or fraudulent use or representation made by any person by virtue of the
possession thereof. If a share certificate for registered shares is worn out
or lost it may be renewed on production of the worn out certificate or on
satisfactory proof of its loss together with such indemnity as may be
required by a resolution of directors.
9. If several persons are registered as joint holders of any shares, any one of
such persons may give an effectual receipt for any dividend payable in
respect of such shares.
BEARER SHARES
10. Subject to a request for the issue of bearer shares and to the payment of
the appropriate consideration for the shares to be issued, the Company may,
to the extent authorized by the Memorandum, issue bearer shares to, and at
the expense of, such person as shall be specified in the request. Bearer
shares may not be issued for debt obligations, promissory notes or other
obligations to contribute money or property and registered shares issued for
debt obligations, promissory notes or other obligations to contribute money
or property shall not be exchanged for bearer shares unless such debt
obligations, promissory notes or other obligations to contribute money or
property have been satisfied. The Company may also upon receiving a request
in writing accompanied by the share certificate for the shares in question,
exchange registered shares for bearer shares or may exchange bearer shares
for registered shares. Such request served on the Company by the holder of
bearer shares shall specify the name and address of the person to be
registered and unless the request is delivered in person by
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the bearer shall be authenticated as hereinafter provided. Such request
served on the Company by the holder of bearer shares shall also be
accompanied by any coupons or talons which at the date of such delivery have
not become due for payment of dividends or any other distribution by the
Company to the holders of such shares. Following such exchange the share
certificate relating to the exchanged shares shall be delivered as directed
by the member requesting the exchange.
11. Bearer share certificates shall be under the Seal and shall state that the
bearer is entitled to the shares therein specified, and may provide by
coupons, talons or otherwise for the payment of dividends or other moneys on
the shares included therein.
12. Subject to the provisions of the Act and of these Articles, the bearer of a
bearer share certificate shall be deemed to be a member of the Company and
shall be entitled to the same rights and privileges as he would have had if
his name had been included in the share register of the Company as the
holder of the shares.
13. Subject to any specific provisions in these Articles, in order to exercise
his rights as a member of the Company, the bearer of a bearer share
certificate shall produce the bearer share certificate as evidence of his
membership of the Company. Without prejudice to the generality of the
foregoing, the following rights may be exercised in the following manner:
(a) for the purpose of exercising his voting rights at a meeting, the bearer
of a bearer share certificate shall produce such certificate to the
chairman of the meeting;
(b) for the purpose of exercising his vote on a resolution in writing, the
bearer of a bearer share certificate shall cause his signature to any
such resolution to be authenticated as hereinafter set forth;
(c) for the purpose of requisitioning a meeting of members, the bearer of a
bearer share certificate shall address his requisition to the directors
and his signature thereon shall be duly authenticated as hereinafter
provided; and
(d) for the purpose of receiving dividends, the bearer of a bearer share
certificate shall present at such places as may be designated by the
directors any coupons or talons issued for such purpose, or shall
present the bearer share certificate to any paying agent authorized to
pay dividends.
14. The signature of the bearer of a bearer share certificate shall be deemed to
be duly authenticated if the bearer of the bearer share certificate shall
produce such certificates
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to a notary public or a bank manager or a director or officer of the Company
(herein referred to as an "authorized person") and the authorized person
endorses the document bearing such signature with a statement:
(a) identifying the bearer share certificate produced to him by number and
date and specifying the number of shares and the class of shares (if
appropriate) comprised therein;
(b) confirming that the signature of the bearer of the bearer share
certificate was subscribed in his presence and that if the bearer is
representing a body corporate he has so acknowledged and has produced
satisfactory evidence thereof; and
(c) specifying the capacity in which he is qualified as an authorized person
and, if a notary public, affixing his seal thereto or, if a bank
manager, attaching an identifying stamp of the bank of which he is a
manager.
15. Notwithstanding any other provisions of these Articles, at any time, the
bearer of a bearer share certificate may deliver the certificate for such
shares into the custody of the Company at its registered office, whereupon
the Company shall issue a receipt therefor under the Seal signed by a
director or officer identifying by name and address the person delivering
such certificate and specifying the date and number of the bearer share
certificate so deposited and the number of shares comprised therein. Any
such receipt may be used by the person named therein for the purpose of
exercising the rights vested in the shares represented by the bearer share
certificate so deposited including the right to appoint a proxy. Any bearer
share certificate so deposited shall be returned to the person named in the
receipt or his personal representative if such person be dead and thereupon
the receipt issued therefor shall be of no further effect whatsoever and
shall be returned to the Company for cancellation or, if it has been lost or
mislaid, such indemnity as may be required by resolution of directors shall
be given to the Company.
16. The bearer of a bearer share certificate shall for all purposes be deemed to
be the owner of the shares comprised in such certificate and in no
circumstances shall the Company or the chairman of any meeting of members or
the Company's registrars or any director or officer of the Company or any
authorized person be obliged to inquire into the circumstances whereby a
bearer share certificate came into the hands of the bearer thereof, or to
question the validity or authenticity of any action taken by the bearer of a
bearer share certificate whose signature has been authenticated as provided
herein.
17. If the bearer of a bearer share certificate shall be a corporation, then all
the rights exercisable by virtue of such shareholding may be exercised by an
individual duly
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authorized to represent the corporation but unless such individual shall
acknowledge that he is representing a corporation and shall produce upon
request satisfactory evidence that he is duly authorized to represent the
corporation, the individual shall for all purposes hereof be regarded as the
holder of the shares in any bearer share certificate held by him.
18. The directors may provide for payment of dividends to the holders of bearer
shares by coupons or talons and in such event the coupons or talons shall be
in such form and payable at such time and in such place or places as the
directors shall resolve. The Company shall be entitled to recognize the
absolute right of the bearer of any coupon or talon issued as aforesaid to
payment of the dividend to which it relates and delivery of the coupon or
talon to the Company or its agents shall constitute in all respects a
good discharge of the Company in respect of such dividend.
19. If any bearer share certificate, coupon or talon be worn out or defaced, the
directors may, upon the surrender thereof for cancellation, issue a new one
in its stead, and if any bearer share certificate, coupon or talon be lost
or destroyed, the directors may upon the loss or destruction being
established to their satisfaction, and upon such indemnity being given to
the Company as it shall by resolution of directors determine, issue a new
bearer share certificate in its stead, and in either case on payment of
such sum as the Company may from time to time by resolution
of directors require. In case of loss or destruction the person to whom such
new bearer share certificate, coupon or talon is issued shall also bear and
pay to the Company all expenses incidental to the investigation by the
Company of the evidence of such loss or destruction and to such indemnity.
SHARES, AUTHORIZED CAPITAL, CAPITAL AND SURPLUS
20. Subject to the provisions of these Articles and any resolution of members,
the unissued shares of the Company shall be at the disposal of the directors
who may, without limiting or affecting any rights previously conferred on
the holders of any existing shares or class or series of shares, offer,
allot, grant options over or otherwise dispose of shares to such persons, at
such times and upon such terms and conditions as the Company may by
resolution of directors determine.
21. No share in the Company may be issued until the consideration in respect
thereof is fully paid, and when issued the share is for all purposes fully
paid and non-assessable save that a share issued for a promissory note or
other written obligation for payment of a debt may be issued subject to
forfeiture in the manner prescribed in these Articles.
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22. Shares in the Company shall be issued for money, services rendered,
personal property, an estate in real property, a promissory note or other
binding obligation to contribute money or property or any combination of
the foregoing as shall be determined by a resolution of directors.
23. Shares in the Company may be issued for such amount of consideration as the
directors may from time to time by resolution of directors determine,
except that in the case of shares with par value, the amount shall not be
less than the par value, and in the absence of fraud the decision of the
directors as to the value of the consideration received by the Company in
respect of the issue is conclusive unless a question of law is involved.
The consideration in respect of the shares constitutes capital to the
extent of the par value and the excess constitutes surplus.
24. A share issued by the Company upon conversion of, or in exchange for,
another share or a debt obligation or other security in the Company, shall
be treated for all purposes as having been issued for money equal to the
consideration received or deemed to have been received by the Company in
respect of the other share, debt obligation or security.
25. Treasury shares may be disposed of by the Company on such terms and
conditions (not otherwise inconsistent with these Articles) as the Company
may by resolution of directors determine.
26. The Company may issue fractions of a share and a fractional share shall
have the same corresponding fractional liabilities, limitations,
preferences, privileges, qualifications, restrictions, rights and other
attributes of a whole share of the same class or series of shares.
27. Upon the issue by the Company of a share without par value, if an amount is
stated in the Memorandum to be authorized capital represented by such
shares then each share shall be issued for no less than the appropriate
proportion of such amount which shall constitute capital, otherwise the
consideration in respect of the share constitutes capital to the extent
designated by the directors and the excess constitutes surplus, except that
the directors must designate as capital an amount of the consideration that
is at least equal to the amount that the share is entitled to as a
preference, if any, in the assets of the Company upon liquidation of the
Company.
28. The Company may purchase, redeem or otherwise acquire and hold its own
shares but only out of surplus or in exchange for newly issued shares of
equal value.
29. Subject to provisions to the contrary in
(a) the Memorandum or these Articles;
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(b) the designations, powers, preferences, rights, qualifications,
limitations and restrictions with which the shares were issued; or
(c) the subscription agreement for the issue of the shares,
the Company may not purchase, redeem or otherwise acquire its own shares
without the consent of members whose shares are to be purchased, redeemed
or otherwise acquired.
30. No purchase, redemption or other acquisition of shares shall be made unless
the directors determine that immediately after the purchase, redemption or
other acquisition the Company will be able to satisfy its liabilities as
they become due in the ordinary course of its business and the realizable
value of the assets of the Company will not be less than the sum of its
total liabilities, other than deferred taxes, as shown in the books of
account, and its capital and, in the absence of fraud, the decision of the
directors as to the realizable value of the assets of the Company is
conclusive, unless a question of law is involved.
31. A determination by the directors under the preceding Regulation is not
required where shares are purchased, redeemed or otherwise acquired
(a) pursuant to a right of a member to have his shares redeemed or to have
his shares exchanged for money or other property of the Company;
(b) by virtue of a transfer of capital pursuant to Regulation 59;
(c) by virtue of the provisions of Section 83 of the Act; or
(d) pursuant to an order of the Court.
32. Shares that the Company purchases, redeems or otherwise acquires pursuant
to the preceding Regulation may be cancelled or held as treasury shares
except to the extent that such shares are in excess of 80 percent of the
issued shares of the Company in which case they shall be cancelled but they
shall be available for reissue.
33. Where shares in the Company are held by the Company as treasury shares or
are held by another company of which the Company holds, directly or
indirectly, shares having more than 50 percent of the votes in the election
of directors of the other company, such shares of the Company are not
entitled to vote or to have dividends paid thereon and shall not be treated
as outstanding for any purpose except for purposes of determining the
capital of the Company.
34. The Company may purchase, redeem or otherwise acquire its shares at a price
lower than the fair value if permitted by, and then only in accordance
with, the terms of
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(a) the Memorandum or these Articles; or
(b) a written agreement for the subscription for the shares to be
purchased, redeemed or otherwise acquired.
35. The Company may by a resolution of directors include in the computation of
surplus for any purpose the unrealized appreciation of the assets of the
Company, and, in the absence of fraud, the decision of the directors as to
the value of the assets is conclusive, unless a question of law is
involved.
MORTGAGES AND CHARGES OF REGISTERED SHARES
36. Members may mortgage or charge their registered shares in the Company and
upon satisfactory evidence thereof the Company shall give effect to the
terms of any valid mortgage or charge except insofar as it may conflict
with any requirements herein contained for consent to the transfer of
shares.
37. In the case of the mortgage or charge of registered shares there may be
entered in the share register of the Company at the request of the
registered holder of such shares
(a) a statement that the shares are mortgaged or charged;
(b) the name of the mortgagee or chargee; and
(c) the date on which the aforesaid particulars are entered in the share
register.
38. Where particulars of a mortgage or charge are registered, such particulars
shall be cancelled
(a) with the consent of the named mortgagee or chargee or anyone authorized
to act on his behalf; or
(b) upon evidence satisfactory to the directors of the discharge of the
liability secured by the mortgage or charge and the issue of such
indemnities as the directors shall consider necessary or desirable.
Whilst particulars of a mortgage or charge are registered, no transfer of
any share comprised therein shall be effected without the written consent
of the named mortgagee or chargee or anyone authorized to act on his
behalf.
FORFEITURE
When shares issued for a promissory note or other written obligation for
payment of a debt have been issued subject to forfeiture, the following
provisions shall apply.
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41. Written notice specifying a date for payment to be made and the shares in
respect of which payment is to be made shall be served on the member who
defaults in making payment pursuant to a promissory note or other written
obligations to pay a debt.
42. The written notice specifying a date for payment shall
(a) name a further date not earlier than the expiration of 14 days from the
date of service of the notice on or before which payment required by
the notice is to be made; and
(b) contain a statement that in the event of non-payment at or before the
time named in the notice the shares, or any of them, in respect of
which payment is not made will be liable to be forfeited.
43. Where a written notice has been issued and the requirements have not been
complied with within the prescribed time, the directors may at any time
before tender of payment forfeit and cancel the shares to which the notice
relates.
44. The Company is under no obligation to refund any moneys to the member whose
shares have been forfeited and cancelled pursuant to these provisions. Upon
forfeiture and cancellation of the shares the member is discharged from any
further obligation to the Company with respect to the shares forfeited and
cancelled.
LIEN
45. The Company shall have a first and paramount lien on every share issued for
a promissory note or for any other binding obligation to contribute money
or property or any combination thereof to the Company, and the Company
shall also have a first and paramount lien on every share standing
registered in the name of a member, whether singly or jointly with any
other person or persons, for all the debts and liabilities of such member
or his estate to the Company, whether the same shall have been incurred
before or after notice to the Company of any interest of any person other
than such member, and whether the time for the payment or discharge of the
same shall have actually arrived or not, and notwithstanding that the same
are joint debts or liabilities of such member or his estate and any other
person, whether a member of the Company or not. The Company's lien on a
share shall extend to all dividends payable thereon. The directors may at
any time either generally, or in any particular case, waive any lien that
has arisen or declare any share to be wholly or in part exempt from the
provisions of this Regulation.
46. In the absence of express provisions regarding sale in the promissory note
or other binding obligation to contribute money or property, the Company
may sell, in such manner as the directors may by resolution of directors
determine, any
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share on which the Company has a lien, but no sale shall be made unless
some sum in respect of which the lien exists is presently payable nor until
the expiration of twenty-one days after a notice in writing, stating and
demanding payment of the sum presently payable and giving notice of the
intention to sell in default of such payment, has been served on the holder
for the time being of the share.
47. The net proceeds of the sale by the Company of any shares on which it has a
lien shall be applied in or towards payment of discharge of the promissory
note or other binding obligation to contribute money or property or any
combination thereof in respect of which the lien exists so far as the same
is presently payable and any residue shall (subject to a like lien for
debts or liabilities not presently payable as existed upon the share prior
to the sale) be paid to the holder of the share immediately before such
sale. For giving effect to any such sale the directors may authorize some
person to transfer the share sold to the purchaser thereof. The purchaser
shall be registered as the holder of the share and he shall not be bound to
see to the application of the purchase money, nor shall his title to the
share be affected by any irregularity or invalidity in the proceedings in
reference to the sale.
TRANSFER OF SHARES
48. Subject to any limitations in the Memorandum, registered shares in the
Company may be transferred by a written instrument of transfer signed by
the transferor and containing the name and address of the transferee, but
in the absence of such written instrument of transfer the directors may
accept such evidence of a transfer of shares as they consider appropriate.
49. The Company shall not be required to treat a transferee of a registered
share in the Company as a member until the transferee's name has been
entered in the share register.
50. Subject to any limitations in the Memorandum, the Company must on the
application of the transferor or transferee of a registered share in the
Company enter in the share register the name of the transferee of the share
save that the registration of transfers may be suspended and the share
register closed at such times and for such periods as the company may from
time to time by resolution of directors determine provided always that such
registration shall not be suspended and the share register closed for more
than 60 days of any period of 12 months.
TRANSMISSION OF SHARES
51. The executor or administrator of a deceased member, the guardian of an
incompetent member or the trustee of a bankrupt member shall be the only
person recognized by the Company as having any title to his share but they
shall not
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be entitled to exercise any rights as a member of the, Company until they
have proceeded as set forth in the next following three Regulations.
52. The production to the Company of any document which is evidence of probate
of the will, or letters of administration of the estate, or confirmation as
executor, of a deceased member or of the appointment of a guardian of an
incompetent member or the trustee of a bankrupt member shall be accepted by
the Company even if the deceased, incompetent or bankrupt member is
domiciled outside the British Virgin Islands if the document evidencing the
grant of probate or letters of administration, confirmation as executor,
appointment as guardian or trustee in bankruptcy is issued by a foreign
court which had competent jurisdiction in the matter. For the purpose of
establishing whether or not a foreign court had competent jurisdiction in
such a matter the directors may obtain appropriate legal advice. The
directors may also require an indemnity to be given by the executor,
administrator, guardian or trustee in bankruptcy.
53. Any person becoming entitled by operation of law or otherwise to a share or
shares in consequence of the death, incompetence or bankruptcy of any
member may be registered as a member upon such evidence.being produced as
may reasonably be required by the directors. An application by any such
person to be registered as a member shall for all purposes be deemed to be
a transfer of shares of the deceased, incompetent or bankrupt member and
the directors shall treat it as such.
54. Any person who has become entitled to a share or shares in consequence of
the death, incompetence or bankruptcy of any member may, instead of being
registered himself, request in writing that some person to be named by him
be registered as the transferee of such share or shares and such request
shall likewise be treated as if it were a transfer.
55. What amounts to incompetence on the part of a person is a matter to be
determined by the court having regard to all the relevant evidence and the
circumstances of the case.
REDUCTION OR INCREASE IN AUTHORIZED CAPITAL OR CAPITAL
56. The Company may by a resolution of directors amend the Memorandum to
increase or reduce its authorized capital and in connection therewith the
Company may in respect of any unissued shares increase or reduce the number
of such shares, increase or reduce the par value of any such shares or
effect any combination of the foregoing.
57. The Company may amend the Memorandum to
(a) divide the shares, including issued shares, of a class or series into a
larger number of shares of the same class or series; or
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(b) combine the shares, including issued shares, of a class or series into
a smaller number of shares of the same class or series,
provided, however, that where shares are divided or combined under (a)
or (b) of this Regulation, the aggregate par value of the new shares
must be equal to the aggregate par value of the original shares.
58. The capital of the Company may by a resolution of directors be increased by
transferring an amount of the surplus of the Company to capital.
59. Subject to the provision. of the two next succeeding Regulations, the
capital of the Company may by resolution of directors be reduced by
transferring an amount of the capital of the Company to surplus.
60. No reduction of capital shall be effected that reduces the capital of the
Company to an amount that immediately after the reduction is less than the
aggregate par value of all outstanding shares with par value and all shares
with par value held by the Company as treasury shares and the aggregate of
the amounts designated as capital of all outstanding shares without par
value and all shares without par value held by the Company as treasury
shares that are entitled to a preference, if any, in the assets of the
Company upon liquidation of the Company.
61. No reduction of capital shall be effected unless the directors determine
that immediately after the reduction the Company will be able to satisfy
its liabilities as they become due in the ordinary course of its business
and that the realizable assets of the Company will not be less than its
total liabilities, other than deferred taxes, as shown in the books of the
Company and its remaining capital, and, in the absence of fraud, the
decision of the directors as to the realizable value of the assets of the
Company is conclusive, unless a question of law is involved.
MEETINGS AND CONSENTS OF MEMBERS
The directors of the Company may convene meetings of the members of the
Company at such times and in such manner and places within or outside the
British Virgin Islands as the directors consider necessary or desirable.
Upon the written request of members holding 10 percent or more of the
outstanding voting shares in the Company the directors shall convene a
meeting of members.
The directors shall give not less than 7 days notice of meetings of members
to those persons whose names on the date the notice is given appear as
members in the share register of the Company and are entitled to vote at
the meeting.
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65. The directors may fix the date notice is given of a meeting of members as
the record date for determining those shares that are entitled to vote at
the meeting.
66. A meeting of members may be called on short notice:
(a) if members holding not less than 90 percent of the total number of
shares entitled to vote on all matters to be considered at the meeting,
or 90 percent of the votes of each class or series of shares where
members are entitled to vote thereon as a class or series together with
not less than a 90 percent majority of the remaining votes, have agreed
to short notice of the meeting, or
(b) if all members holding shares entitled to vote on all or any matters to
be considered at the meeting have waived notice of the meeting and for
this purpose presence at the meeting shall be deemed to constitute
waiver.
67. The inadvertent failure of the directors to give notice of a meeting to a
member, or the fact that a member has not received notice, does not
invalidate the meeting.
68. A member may be represented at a meeting of members by a proxy who may
speak and vote on behalf of the member.
69. The instrument appointing a proxy shall be produced at the place appointed
for the meeting before the time for holding the meeting at which the person
named in such instrument proposes to vote.
70. An instrument appointing a proxy shall be in substantially the following
form or such other form as the Chairman of the meeting shall accept as
properly evidencing the wishes of the member appointing the proxy.
(Name of Company)
I/We being a member of the above
Company with shares HEREBY APPOINT
of or failing him
of to be my/our proxy to vote
for me/us at the meeting of members to be held on the day of
and at any adjournment thereof.
(Any restrictions on voting to be inserted here.)
Signed this day of
....................................
Member
71. The following shall apply in respect of joint ownership of shares:
[SEAL]
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(a) if two or more persons hold shares jointly each of them may be present
in person or by proxy at a meeting of members and may speak as a
member;
(b) if only one of the joint owners is present in person or by proxy he may
vote on behalf of all joint owners, and
(c) if two or more of the joint owners are present in person or by proxy
they must vote as one.
72. A member shall be deemed to be present at a meeting of members if he
participates by telephone or other electronic means and all members
participating in the meeting are able to hear each other.
73. A meeting of members is duly constituted if, at the commencement of the
meeting, there are present in person or by proxy not less than 50 percent
of the votes of the shares or class or series of shares entitled to vote on
resolutions of members to be considered at the meeting. If a quorum be
present, notwithstanding the fact that such quorum may be represented by
only one person then such person may resolve any matter and a certificate
signed by such person accompanied where such person be a proxy by a copy of
the proxy form shall constitute a valid resolution of members.
74. If within two hours from the time appointed for the meeting a quorum is not
present, the meeting, if convened upon the requisition of members, shall be
dissolved; in any other case it shall stand adjourned to the next business
day at the same time and place or to such other time and place as the
directors may determine, and if at the adjourned meeting there are present
within one hour from the time appointed for the meeting in person or by
proxy not less than one third of the votes of the shares or each class or
series of shares entitled to vote on the resolutions to be considered by
the meeting, those present shall constitute a quorum but otherwise the
meeting shall be dissolved.
75. At every meeting of members, the Chairman of the Board of Directors shall
preside as chairman of the meeting. If there is no Chairman of the Board of
Directors or if the Chairman of the Board of Directors is not present at
the meeting, the members present shall choose some one of their number to
be the chairman. If the members are unable to choose a chairman for any
reason, then the person representing the greatest number of voting shares
present in person or by prescribed form of proxy at the meeting shall
preside as chairman failing which the oldest individual or representative
of a member present shall take the chair.
[SEAL]
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76. The chairman may, with the consent of the meeting, adjourn any meeting from
time to time, and from place to place, but no business shall be transacted
at any adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place.
77. At any meeting of the members the chairman shall be responsible for
deciding in such manner as he shall consider appropriate whether any
resolution has been carried or not and the result of his decision shall be
announced to the meeting and recorded in the minutes thereof. If the
chairman shall have any doubt as to the outcome of any resolution put to
the vote, he shall cause a poll to be taken of all votes cast upon such
resolution, but if the chairman shall fail to take a poll then any member
present in person or by proxy who disputes the announcement by the chairman
of the result of any vote may immediately following such announcement
demand that a poll be taken and the chairman shall thereupon cause a poll
to be taken. If a poll is taken at any meeting, the result thereof shall be
duly recorded in the minutes of that meeting by the chairman.
78. Any person other than an individual shall be regarded as one member and
subject to the specific provisions hereinafter contained for the
appointment of representatives of such persons the right of any individual
to speak for or represent such member shall be determined by the law of the
jurisdiction where, and by the documents by which, the person is
constituted or derives its existence. In case of doubt, the directors may
in good faith seek legal advice from any qualified person and unless and
until a court of competent jurisdiction shall otherwise rule, the directors
may rely and act upon such advice without incurring any liability to any
member.
79. Any person other than an individual which is a member of the Company may by
resolution of its directors or other governing body authorize such person
as it thinks fit to act as its representative at any meeting of the Company
or of any class of members of the Company, and the person so authorized
shall be entitled to exercise the same powers on behalf of the person which
he represents as that person could exercise if it were an individual member
of the Company.
80. The chairman of any meeting at which a vote is cast by proxy or on behalf
of any person other than an individual may call for a notarially certified
copy of such proxy or authority which shall be produced within 7 days of
being so requested or the votes cast by such proxy or on behalf of such
person shall be disregarded.
81. Directors of the Company may attend and speak at any meeting of members of
the Company and at any separate meeting of the holders of any class or
series of shares in the Company.
[SEAL]
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82. An action that may be taken by the members at a meeting may also be taken
by a resolution of members consented to in writing or by telex, telegram,
cable, facsimile or other written electronic communication, without the
need for any notice, but if any resolution of members is adopted otherwise
than by the unanimous written consent of all members, a copy of such
resolution shall forthwith be sent to all members not consenting to such
resolution. The consent may be in the form of counterparts, each
counterpart being signed by one or more members.
DIRECTORS
83. The first directors of the Company shall be appointed by the subscribers to
the Memorandum; and thereafter, the directors shall be elected by the
members for such term as the members determine.
84. The minimum number of directors shall be one and the maximum number shall
be 7.
85. Each director shall hold office for the term, if any, fixed by resolution
of members or until his earlier death, resignation or removal.
86. A director may be removed from office, with or without cause, by a
resolution of members or, with cause, by a resolution of directors.
87. A director may resign his office by giving written notice of his
resignation to the Company and the resignation shall have effect from the
date the notice is received by the Company or from such later date as may
be specified in the notice.
88. The directors may at any time appoint any person to be a director either to
fill a vacancy or as an addition to the existing directors. A vacancy
occurs through the death, resignation or removal of a director, but a
vacancy or vacancies shall not be deemed to exist where one or more
directors shall resign after having appointed his or their successor or
successors.
89. The Company may determine by resolution of directors to keep a register of
directors containing
(a) the names and addresses of the persons who are directors of the
Company;
(b) the date on which each person whose name is entered in the register was
appointed as a director of the Company; and
(c) the date on which each person named as a director ceased to be a
director of the Company.
[SEAL]
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90. If the directors determine to maintain a register of directors, a copy
thereof shall be kept at the registered office of the Company and the
Company may determine by resolution of directors to register a copy of the
register with the Registrar of Companies.
91. With the prior or subsequent approval by a resolution of members, the
directors may, by a resolution of directors, fix the emoluments of
directors with respect to services to be rendered in any capacity to the
Company.
92. A director shall not require a share qualification and may be an individual
or a company.
POWERS OF DIRECTORS
93. The business and affairs of the Company shall be managed by the directors
who may pay all expenses incurred preliminary to and in connection with the
formation and registration of the Company and may exercise all such powers
of the Company as are not by the Act or by the Memorandum or these Articles
required to be exercised by the members of the Company, subject to any
delegation of such powers as may be authorized by these Articles and to
such requirements as may be prescribed by a resolution of members; but no
requirement made by a resolution of members shall prevail if it be
inconsistent with these Articles nor shall such requirement invalidate any
prior act of the directors which would have been valid if such requirement
had not been made.
94. The directors may, by a resolution of directors, appoint any person,
including a person who is a director, to be an officer or agent of the
Company. The resolution of directors appointing an agent may authorize the
agent to appoint one or more substitutes or delegates to exercise some or
all of the powers conferred on the agent by the Company.
95. Every officer or agent of the Company has such powers and authority of the
directors, including the power and authority to affix the Seal, as are set
forth in these Articles or in the resolution of directors appointing the
officer or agent, except that no officer or agent has any power or
authority with respect to the matters requiring a resolution of directors
under the Act.
96. Any director which is a body corporate may appoint any person its duly
authorized representative for the purpose of representing it at meetings of
the Board of Directors or with respect to unanimous written consents.
97. The continuing directors may act notwithstanding any vacancy in their body,
save that if their number is reduced to their knowledge below the number
fixed by or pursuant to these Articles as the necessary quorum for a
meeting of directors,
[SEAL]
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the continuing directors or director may act only for the purpose of
appointing directors to fill any vacancy that has arisen or for summoning a
meeting of members.
98. The directors may by resolution of directors exercise all the powers of the
Company to borrow money and to mortgage or charge its undertakings and
property or any part thereof, to issue debentures, debenture stock and
other securities whenever money is borrowed or as security for any debt,
liability or obligation of the Company or of any third party.
99. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for moneys paid to the Company,
shall be signed, drawn, accepted, endorsed or otherwise executed, as the
case may be, in such manner as shall from time to time be determined by
resolution of directors.
100. The Company may determine by resolution of directors to maintain at its
registered office a register of mortgages, charges and other encumbrances
in which there shall be entered the following particulars regarding each
mortgage, charge and other encumbrance:
(a) the sum secured;
(b) the assets secured;
(c) the name and address of the mortgagee, chargee or other encumbrances;
(d) the date of creation of the mortgage, charge or other encumbrance; and
(e) the date on which the particulars specified above in respect of the
mortgage, charge or other encumbrance are entered in the register.
101. The Company may further determine by a resolution of directors to register
a copy of the register of mortgages, charges or other encumbrances with the
Registrar of Companies.
PROCEEDINGS OF DIRECTORS
102. The directors of the Company or any committee thereof may meet at such
times and in such manner and places within or outside the British Virgin
Islands as the directors may determine to be necessary or desirable.
103. A director shall be deemed to be present at a meeting of directors if he
participates by telephone or other electronic means and all directors
participating in the meeting are able to hear each other.
[SEAL]
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104. A director shall be given not less than 3 days notice of meetings of
directors, but a meeting of directors held without 3 days notice having
been given to all directors shall be valid if all the directors entitled to
vote at the meeting who do not attend, waive notice of the meeting and for
this purpose, the presence of a director at a meeting shall constitute
waiver on his part. The inadvertent failure to give notice of a meeting to
a director, or the fact that a director has not received the notice, does
not invalidate the meeting.
105. A director may by a written instrument appoint an alternate who need not be
a director and an alternate is entitled to attend meetings in the absence
of the director who appointed him and to vote or consent in place of the
director.
106. A meeting of directors is duly constituted for all purposes if at the
commencement of the meeting there are present in person or by alternate not
less than one-half of the total number of directors, unless there are only
2 directors in which case the quorum shall be 2.
107. If the Company shall have only one director the provisions herein contained
for meetings of the directors shall not apply but such sole director shall
have full power to represent and act for the Company in all matters as are
not by the Act or the Memorandum or these Articles required to be exercised
by the members of the Company and in lieu of minutes of a meeting shall
record in writing and sign a note or memorandum of all matters requiring a
resolution of directors. Such a note or memorandum shall constitute
sufficient evidence of such resolution for all purposes.
108. At every meeting of the directors the Chairman of the Board of Directors
shall preside as chairman of the meeting. If there is no Chairman of the
Board of Directors or if the Chairman of the Board of Directors is not
present at the meeting the Vice-Chairman of the Board of Directors shall
preside. If there is no Vice-Chairman of the Board of Directors or if the
Vice-Chairman of the Board of Directors is not present at the meeting the
directors present shall choose some one of their number to be chairman of
the meeting.
109. An action that may be taken by the directors or a committee of directors at
a meeting may also be taken by a resolution of directors or a committee of
directors consented to in writing or by telex, telegram, cable, facsimile
or other written electronic communication by all directors or all members
of the committee as the case may be, without the need for any notice. The
consent may be in th form of counterparts, each counterpart being signed by
one or more directors.
110. The directors shall cause the following corporate records to be kept:
[SEAL]
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(a) minutes of all meetings of directors, members, committees of directors,
committees of officers and committees of members;
(b) copies of all resolutions consented to by directors, members,
committees of directors, committees of officers and committees of members;
and
(c) such other accounts and records as the directors by resolution of
directors consider necessary or desirable in order to reflect the financial
position of the Company.
111. The books, records and minutes shall be kept at the registered office of
the Company, its principal place of business or at such other place as the
directors determine.
112. The directors may, by resolution of directors, designate one or more
committees, each consisting of one or more directors.
113. Each committee of directors has such powers and authorities of the
directors, including the power and authority to affix the Seal, as are set
forth in the resolution of directors establishing the committee, except
that no committee has any power or authority to amend the Memorandum or
these Articles, to appoint directors or fix their emoluments, or to appoint
officers or agents of the Company.
114. The meetings and proceedings of each committee of directors consisting of 2
or more directors shall be governed mutatis mutandis by the provisions of
these Articles regulating the proceedings of directors so far as the same
are not superseded by any provisions in the resolution establishing the
committee.
OFFICERS
115. The Company may by resolution of directors appoint officers of the Company
at such times as shall be considered necessary or expedient. Such officers
may consist of a Chairman of the Board of Directors, a Vice-Chairman of the
Board of Directors, a President and one or more Vice-Presidents,
Secretaries and Treasurers and such other officers as may from time to time
be deemed desirable. Any number of offices may be held by the same person.
116. The officers shall perform such duties as shall be prescribed at the time
of their appointment subject to any modification in such duties as may be
prescribed thereafter by resolution of directors or resolution of members,
but in the absence of any specific allocation of duties it shall be the
responsibility of the Chairman of the Board of Directors to preside at
meetings of directors and members, the Vice-Chairman to act in the absence
of the Chairman, the President to manage the day to day affairs of the
Company, the Vice-Presidents to act in order of seniority in the
[SEAL]
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absence of the President but otherwise to perform such duties as may be
delegated to them by the President, the Secretaries to maintain the share
register, minute books and records (other than financial records) of the
Company and to ensure compliance with all procedural requirements imposed
on the Company by applicable law, and the Treasurer to be responsible for
the financial affairs of the Company.
117. The emoluments of all officers shall be fixed by resolution of directors.
118. The officers of the Company shall hold office until their successors are
duly elected and qualified, but any officer elected or appointed by the
directors may be removed at any time, with or without cause, by resolution
of directors. Any vacancy occurring in any office of the Company may be
filled by resolution of directors.
CONFLICT OF INTERESTS
119. No agreement or transaction between the Company and one or more of its
directors or any person in which any director has a financial interest or
to whom any director is related, including as a director of that other
person, is void or voidable for this reason only or by reason only that the
director is present at the meeting of directors or at the meeting of the
committee of directors that approves the agreement or transaction or that
the vote or consent of the director is counted for that purpose if the
material facts of the interest of each director in the agreement or
transaction and his interest in or relationship to any other party to the
agreement or transaction are disclosed in good faith or are known by the
other directors.
120. A director who has an interest in any particular business to be considered
at a meeting of directors or members may be counted for.purposes of
determining whether the meeting is duly constituted.
INDEMNIFICATION
121. Subject to the limitations hereinafter provided the Company may indemnify
against all expenses, including legal fees, and against all judgments,
fines and amounts paid in settlement and reasonably incurred in connection
with legal, administrative or investigative proceedings any person who
(a) is or was a party or is threatened to be made a party to any
threatened, pending or completed proceedings, whether civil, criminal,
administrative or investigative, by reason of the fact that the
person is or was a director, an officer or a liquidator of the Company;
or
[SEAL]
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(b) is or was, at the request of the Company, serving as a director,
officer or liquidator of, or in any other capacity is or wan acting
for, another company or a partnership, joint venture, trust or other
enterprise.
122. The Company may only indemnify a person if the person acted honestly and in
good faith with a view to the best interests of the Company and, in the
case of criminal proceedings, the person had no reasonable cause to believe
that his conduct was unlawful.
123. The decision of the directors as to whether the person acted honestly and
in good faith and with a view to the best interests of the Company and as
to whether the person had no reasonable cause to believe that his conduct
was unlawful is, in the absence of fraud, sufficient for the purposes of
these Articles, unless a question of law is involved.
124. The termination of any proceedings by any judgment, order, settlement,
conviction or the entering of a nolle prosequi does not, by itself, create
a presumption that the person did not act honestly and in good faith and
with a view to the best interests of the Company or that the person had
reasonable cause to believe that his conduct was unlawful.
125. If a person to be indemnified has been successful in defence of any
proceedings referred to above the person is entitled to be indemnified
against all expenses, including legal fees, and against all judgments,
fines and amounts paid in settlement and reasonably incurred by the person
in connection with the proceedings.
126. The Company may purchase and maintain insurance in relation to any person
who is or was a director, an officer or a liquidator of the Company, or who
at the request of the Company is or was serving as a director, an officer
or a liquidator of, or in any other capacity is or was acting for, another
company or a partnership, joint venture, trust or other enterprise, against
any liability asserted against the person and incurred by the person in
that capacity, whether or not the Company has or would have had the power
to indemnify the person against the liability as provided in these
Articles.
127. The Company may have more than one Seal and references herein to the Seal
shall be references to every Seal which shall have been duly adopted by
resolution of directors. The directors shall provide for the safe custody
of the Seal and for an imprint thereof to be kept at the Registered
Office. Except as otherwise expressly provided herein the Seal when affixed
to any written instrument shall be witnessed and attested to by the
signature of a director or any other person so authorized from time to time
by resolution of directors. Such authorization may be before or after the
Seal is affixed, may be general or specific and
[SEAL]
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may refer to any number of scalings. The Directors may provide for a
facsimile of the Seal and of the signature of any director or authorized
person which may be reproduced by printing or other means on any instrument
and it shall have the same force and validity as if the Seal had been
affixed to such instrument and the same had been signed as hereinbefore
described.
DIVIDENDS
128. The Company may by a resolution of directors declare and pay dividends in
money, shares, or other property, but dividends shall only be declared and
paid out of surplus. In the event that dividends are paid in specie the
directors shall have responsibility for establishing and recording in the
resolution of directors authorizing the dividends, a fair and proper value
for the assets to be so distributed.
129. The directors may from time to time pay to the members such interim
dividends as appear to the directors to be justified by the profits of the
Company.
130. The directors may, before declaring any dividend, set aside out of the
profits of the Company such sum as they think proper as a reserve fund, and
may invest the sum so set aside as a reserve fund upon such securities as
they may select.
131. No dividend shall be declared and paid unless the directors determine that
immediately after the payment of the dividend the Company will be able to
satisfy its liabilities as they become due in the ordinary course of its
business and the realizable value of the assets of the Company will not be
less than the sum of its total liabilities, other than deferred taxes, as
shown in its books of account, and its capital. In the absence of fraud,
the decision of the directors as to the realizable value of the assets of
the Company is conclusive, unless a question of law is involved.
132. Notice of any dividend that may have been declared shall be given to each
member in manner hereinafter mentioned and all dividends unclaimed for 3
years after having been declared may be forfeited by resolution of
directors for the benefit of the Company.
133. No dividend shall bear interest as against the Company and no dividend
shall be paid on treasury shares or shares held by another company of which
the Company holds, directly or indirectly, shares having more than 50
percent of the vote in electing directors.
134. A share issued as a dividend by the Company shall be treated for all
purposes as having been issued for money equal to the surplus that is
transferred to capital upon the issue of the share.
[SEAL]
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135. In the case of a dividend of authorized but unissued shares with par value,
an amount equal to the aggregate par value of the shares shall be
transferred from surplus to capital at the time of the distribution.
136. In the case of a dividend of authorized but unissued shares without par
value, the amount designated by the directors shall be transferred from
surplus to capital at the time of the distribution, except that the
directors must designate as capital an amount that is at least equal to the
amount that the shares are entitled to as a preference, if any, in the
assets of the Company upon liquidation of the Company.
137. A division of the issued and outstanding shares of a class or series of
shares into a larger number of shares of the same class or series having a
proportionately smaller par value does not constitute a dividend of shares.
ACCOUNTS AND AUDIT
138. The Company may by resolution of members call for the directors to prepare
periodically a profit and loss account and a balance sheet. The profit and
loss account and balance sheet shall be drawn up so as to give respectively
a true and fair view of the profit and loss of the Company for the
financial period and a true and fair view of the state of affairs of the
Company as at the end of the financial period.
139. The Company may by resolution of members call for the accounts to be
examined by auditors.
140. The first auditors shall be appointed by resolution of directors;
subsequent auditors shall be appointed by a resolution of members.
141. The auditors may be members of the Company but no director or other officer
shall be eligible to be an auditor of the Company during his continuance in
office.
142. The remuneration of the auditors of the Company
(a) in the case of auditors appointed by the directors, may be fixed by
resolution of directors; and
(b) subject to the foregoing, shall be fixed by resolution of members or in
such manner as the Company may by resolution of members determine.
143. The auditors shall examine each profit and loss account and balance sheet
required to be served on every member of the Company or laid before a
meeting of the members of the Company and shall state in a written report
whether or not
[SEAL]
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(a) in their opinion the profit and loss account and balance sheet give a
true and fair view respectively of the profit and loss for the period
covered by the accounts, and of the state of affairs of the Company at
the end of that period; and
(b) all the information and explanations required by the auditors have been
obtained.
144. The report of the auditors shall be annexed to the accounts and shall be
read at the meeting of members at which the accounts are laid before the
Company or shall be served on the members.
145. Every auditor of the Company shall have a right of access at all times to
the books of account and vouchers of the Company, and shall be entitled to
require from the directors and officers of the Company such information and
explanations as he thinks necessary for the performance of the duties of
the auditors.
146. The auditors of the Company shall be entitled to receive notice of, and to
attend any meetings of members of the Company at which the Company's profit
and loss account and balance sheet are to be presented.
NOTICES
147. Any notice, information or written statement to be given by the Company to
members may be served in the case of members holding registered shares in
any way by which it can reasonably be expected to reach each member or by
mail addressed to each member at the address shown in the share register
and in the case of members holding shares issued to bearer, in the manner
provided in the Memorandum.
148. Any summons, notice, order, document, process, information or written
statement to be served on the Company may be served by leaving it, or by
sending it by registered mail addressed to the Company, at its registered
office, or by leaving it with, or by sending it by registered mail to, the
registered agent of the Company.
149. Service of any summons, notice, order, document, process, information or
written statement to be served on the Company may be proved by showing that
the summons, notice, order, document, process, information or written
statement was delivered to the registered office or the registered agent of
the Company or that it was mailed in such time as to admit to its being
delivered to the registered office or the registered agent of the Company
in the normal course of delivery within the period prescribed for service
and was correctly addressed and the postage was prepaid.
[SEAL]
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PENSION AND SUPERANNUATION FUNDS
150. The directors may establish and maintain or procure the establishment and
maintenance of any non-contributory or contributory pension or
superannuation funds for the benefit of, and give or procure the giving of
donations, gratuities, pensions, allowances or emoluments to, any persons
who are or were at any time in the employment or service of the Company or
any company which is a subsidiary of the Company or in allied to or
associated with the Company or with any such subsidiary, or who are or were
at any time directors or officers of the Company or of any such other
company as aforesaid or who hold or held any salaried employment or office
in the Company or such other company, or any persons in whose welfare the
Company or any such other company as aforesaid is or has been at any time
interested, and to the wives, widows, families and dependents of any such
person, and may make payments for or towards the insurance of any such
persons as aforesaid, and may do any of the matters aforesaid either alone
or in conjunction with any such other company as aforesaid. Subject always
to the proposal being approved by resolution of members, a director holding
any such employment or office shall be entitled to participate in and
retain for his own benefit any such donation, gratuity, pension allowance
or emolument.
ARBITRATION
151. Whenever any difference arises between the Company on the one hand and any
of the members or their executors, administrators or assigns on the other
hand, touching the true intent and construction or the incidence or
consequences of these Articles or of the Act, touching anything done or
executed, omitted or suffered in pursuance of the Act or touching any
breach or alleged breach or otherwise relating to the premises or to these
Articles, or to any Act or Ordinance affecting the Company or to any of the
affairs of the Company such difference shall, unless the parties agree to
refer the same to a single arbitrator, be referred to 2 arbitrators one to
be chosen by each of the parties to the difference and the arbitrators
shall before entering on the reference appoint an umpire.
152. If either party to the reference makes default in appointing an arbitrator
either originally or by way of substitution (in the event that an appointed
arbitrator shall die, be incapable of acting or refuse to act) for 10 days
after the other party has given him notice to appoint the same, such other
party may appoint an arbitrator to act in the place of the arbitrator of
the defaulting party.
VOLUNTARY WINDING UP AND DISSOLUTION
153. The Company may voluntarily commence to wind up and dissolve by a
resolution of members but if the Company has never issued shares it may
voluntarily commence to wind up and dissolve by resolution of directors.
[SEAL]
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CONTINUATION
154. The Company may by resolution of members or by a resolution passed
unanimously by all directors of the Company continue as a company
incorporated under the laws of a jurisdiction outside the British Virgin
Islands in the manner provided under those laws.
We, HWR SERVICES LIMITED, of Craigmuir Chambers, Road Town, Tortola,
British Virgin Islands for the purpose of incorporating an International
Business Company under the laws of the British Virgin Islands hereby subscribe
our name to these Articles of Association the 24th December, 1996 in the
presence of:
Witness Subscriber
Craigmuir Chambers [signature illegible]
............................. .............................
Craigmuir Chambers Authorized Signatory
Road Town, Tortola HWR Services Limited
[SEAL]
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SCHEDULE 2.9
AMC INTERNATIONAL HOLDINGS LTD.
DIRECTOR/OFFICER LIST
Edward J. Tobin, Director and President
Steven A. Saide, Secretary
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<PAGE>
September 1, 1997
Board of Directors
AMC International Holdings, Ltd.
245 Park Avenue
New York, NY 10019
I hereby resign as Director and President of AMC International Holdings,
Ltd., a British Virgin Islands company (the "Company"), and in every other
fiduciary capacity in which I serve the Company. Such resignation shall be
effective as of September 1, 1997.
Sincerely,
/s/ Edward J. Tobin
Edward J. Tobin
<PAGE>
<PAGE>
September 1, 1997
Board of Directors
AMC International Holdings, Ltd.
245 Park Avenue
New York, NY 10019
I hereby resign as Secretary of AMC International Holdings, Ltd., a British
Virgin Islands company (the "Company"), and in every other fiduciary capacity in
which I serve the Company. Such resignation shall be effective as of September
1, 1997.
Sincerely,
/s/ Steven A. Saide
Steven A. Saide
<PAGE>
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the use in Form 10-KSB of Asia Media Communications, Ltd.
(Commission file Number 0-23462) of our report dated March 20, 1996.
ALBRIGHT, PERSING & ASSOCIATES, LTD.
Reno, Nevada
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 0
<CURRENT-LIABILITIES> 14,448
<BONDS> 0
0
0
<COMMON> 55,356
<OTHER-SE> (69,804)
<TOTAL-LIABILITY-AND-EQUITY> 0
<SALES> 0
<TOTAL-REVENUES> 16,746
<CGS> 0
<TOTAL-COSTS> 18,526
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (1,780)
<INCOME-TAX> 0
<INCOME-CONTINUING> (1,780)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,780)
<EPS-PRIMARY> (.00)
<EPS-DILUTED> (.00)
<PAGE>
<PAGE>
ALBRIGHT, PERSING & ASSOCIATES, LTD.
CERTIFIED PUBLIC ACCOUNTANTS
1025 Ridgeview Dr., Suite 300
Reno, Nevada 89509
Phone (702) 826-5482
FAX (702) 826-5510
December 28, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Asia Media Communications, Ltd.
Commission File No. 0-23462
Ladies and Gentlemen:
We have read Item 8 of Asia Media Communications, Ltd.'s Form 10-KSB dated
December 28, 1998, and we agree with such statements, except that we are not in
a position to (1) agree or disagree with Asia Media Communications, Ltd.'s
statement that the decision to change accountants was approved by the Board of
Directors, or (2) confirm that Asia Media Communications, Ltd. engaged new
principal accountants on December 24, 1998 and therefore, during the fiscal
years ended December 31, 1995 and 1994 and the subsequent interim period to the
date hereof, Asia Media Communications, Ltd. did not consult Wlosek & Braverman
L.L.C. regarding any of the matters or events set forth in Item 304 (a)(2)(I)
and (ii) of Regulation S-K.
Yours very truly,
ALBRIGHT, PERSING & ASSOCIATES, LTD.
