THIS SETTLEMENT DEED is made on the 27th day of October 2000.
BETWEEN
(1) OPAL TECHNOLOGIES, INC. (formerly know as Med-tex Corporation), a company
incorporated in the State of Nevada in the United States of America, with
address of Hong Kong office at Suite 2810, Shun Tak Centre, West Tower No.
200 Connaught Road Central, Hong Kong ("Company"); and
(2) BESTALONG GROUP INC, a company incorporated in the British Virgin Islands
with correspondence address in Hong Kong at c/o Messrs. Simon Cheung & Co.
of Suite B, 5/F., Two Chinachem Plaza, 68 Connaught Road Central, Hong Kong
("BGI"); and
(3) BESTALONG INC, a company incorporated in Republic of Liberia with
correspondence address in Hong Kong at c/o Messrs. Simon Cheung & Co. of
Suite B, 5/F, Two Chinachem Plaza, 68 Connaught Road Central, Hong Kong
("BI"); and
(4) KOON KING CHUNG, JOHN c/o Messrs. Simon Simon Cheung & Co. of Suite B,
5/F., Two Chinachem Plaza, 68 Connaught Road Central, Hong Kong Identity
Card No. B924629(6) ("Mr. Koon").
WHEREAS
(A) BGI used to be the controlling shareholder of the Company after the Company
was renamed Opal Technologies Inc. on 14th May 1997.
(B) Mr. Koon was a director and the Chief Executive Officer of the Company
prior to 17 June 2000.
(C) Mr. Koon was and still is a director of BGI.
(D) There are disputes on the Company's dealings between the Company or its
subsidiaries and each of BGI, BI and Mr. Koon ("Disputes") and in order to
settle the Disputes, the parties hereof have each agreed to take out
certain actions as set in a Memorandum of Understanding signed on 29th
September 2000.
(E) Along with the actions taken out respectively by the parties hereof under
the said Memorandum of Understanding, the parties hereof further agree to
full and final settle the Disputes on the terms and conditions hereinafter
appearing.
NOW THIS DEED WITNESSETH AS FOLLOWS
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SPIRIT
------
1. In consideration of the Company or its subsidiaries agreeing to treat the
contracts set out in the Schedule hereof as void to the effect that the
Company or its subsidiaries should be put into their respective original
positions as if the contracts were never performed, the parties hereof
agree that BGI shall refund to the Company the consideration of the
contracts in the total sum of RMB48,172,700.00 (equivalent to
USD5,874,719.51) ("Contract Sum") particulars of which are set out in the
Schedule hereof by means of set off in the manner hereinafter appearing.
SET OFF ARRANGEMENTS
--------------------
2. The parties hereof confirm that the book debt in the sum of USD1,663,768.43
collectively owing by the Company and/or its associate to BGI appeared in
their respective account records since 1 January 2000 is accurate and that
such sum of book debt shall be set off against the Contract Sum and BGI
shall have no claim whatsoever against the Company and/or its associate
hereafter.
3. The Company shall purchase from Oriental Alliance Limited its 100% equity
in Anshun Opal Agricultural Biochemistry Company Limited ("Guizhou
Equity"), a wholly foreign owned enterprise in Guizhou, China for a
consideration initially fixed at RMB14,700,000 (equivalent to
USD1,792,682.93) subject to adjustment and on condition that BGI and Mr.
Koon shall undertake to the Company that each of them will perform or
procure to perform such act and execute or procure to execute such
documents as may be necessary to give a good and effective transfer of the
legal and beneficial title in the Guizhou Equity to the Company and to
enable the Company or its nominee to become the registered owner of Guizhou
Equity within 2 months from the date hereof subject to the approval of the
relevant Government authorities.
4. The Company and BGI shall complete the transfer to the Company for
cancellation 4,836,536 shares ("Cancel Shares") of the Company legally and
beneficially owned by the BGI. For the purpose of set off, the Cancel
Shares are valued at a sum of USD2,418,268.15 which sum plus the amounts
set out in Clauses 2 and 3 hereof completely set off the Contract Sum. The
completion of the transfer shall take place upon execution of this Deed at
office of Messrs. Deca Lin & Partners, Solicitors at Room 1504, 15th Floor,
Vicwood Plaza, No. 199 Des Voeux Road Central, Hong Kong or at such other
place as the parties hereof may agree when all the following businesses
shall be transacted forthwith:-
4.1 BGI shall deliver up to the Company:-
(a) a duly signed letter containing an irrevocable instruction to the
Company's U.S. lawyer Mr. Hank Vanderkam of Messrs. Vanderkam &
Sanders to release to the Company the share certificates for the
Cancel Shares;
(b) instruments of transfer of the Cancel Shares duly executed by or on
behalf of BGI as transferor in favour of the Company;
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(c) if the instruments of transfer of the Cancel Shares are executed by
attorney, duly certified valid power of attorney or other authority
under which such execution is authorised; and
(d) such other documents as may be necessary to give a good and effective
transfer of the legal and beneficial title in the Cancel Shares to the
Company for cancellation.
4.2 The Company and BGI shall each procure a board meeting be held at which:-
(a) subject to the relative instruments being registered, the Cancel
Shares shall be approved for cancellation; and
(b) such other matters shall be dealt with and resolved upon as the
Company shall reasonably require for the purposes of giving effect to
the cancellation of the Cancel Shares.
GUARANTEE
---------
5. BGI and Mr. Koon hereby jointly and severally guarantee to the Company that
the books and account records of the Guizhou Equity is complete, true and
correct and as a security for the guarantee, BGI will retain 500,000 shares
("Adjust Shares") of the Company for cancellation for the purpose of the
adjustment (if any) against the final consideration of Guizhou Equity to be
agree between the parties hereof within 2 months from the date hereof. For
the purpose of adjustment, BGI will sign in escrow on the date hereof a
letter containing an irrevocable instruction to the Company's U.S. lawyer
Mr. Hank Vanderkam of Messrs. Vanderkam & Sanders to release to the Company
the Adjust Shares and follow the requirements under Clause 4 hereof.
CHINA CAN TRANSACTION
---------------------
6. The Company and BGI shall reverse the transaction relating to the
investment into China Can Holding Inc. ("CCH") by the Company to the effect
that the Company and BI upon completion of the reversion, would be put into
their respective original positions as if the transaction were never
performed. The completion of the reversion shall take place upon execution
of hthe Deed at office of Messrs. Deca Lin & Partners, Solicitors at Room
1504, 15th Floor, Vicwood Plaza, No. 199 Des Voeux Road Central, Hong Kong
or at such other place as the parties hereof may agree when all the
following business shall be transacted forthwith:-
6.1 The Company shall deliver up to BI:-
(a) share certificates for 5,000,000 shares of China Can Holding Inc.
("CCH Shares");
(b) instruments of transfer of the CCH Shares duly executed by or on
behalf of Company as transferor in favour of BI;
(c) if the instruments of transfer of the CCH Shares are executed by
attorney, duly certified valid power of attorney or other authority
under which such execution is authorised; and
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(d) such other documents as may be necessary to give a good and effective
transfer of the legal and beneficial title in the CCH Shares to BI.
6.2 BI shall:-
(a) execute or procure due execution by it or on its behalf of the
instrument of transfer of the CCH Shares; and
(b) procure the stamping, if necessary, of the instruments of transfer of
the CCH Shares within 14 days after completion.
6.3 BI shall deliver p to the Company:-
(a) share certificates for 25,000,000 shares of the Company ("OTI
Shares");
(b) instruments of transfer of the OTI Shares duly executed by or on
behalf of BI as transferor in favour of the Company;
(c) if the instruments of transfer of the OTI Shares are execute by
attorne3y, duly certified valid power of attorney or other authority
under which such execution is authorised; and
(d) such other documents as may be necessary to give a good an effective
transfer of the legal and beneficial title in the OTI Shares of the
Company.
6.4 The Company shall:-
(a) execute or procure due execution by it or on its behalf of the
instrument of transfer of the OTI Shares; and
(b) procure the stamping, if necessary, of the instruments of transfer of
the OTI Shares within 14 days after completion.
6.5 BI and the Company shall each procure a board meeting be held at which:-
(a) subject to the relative instruments being registered and duly stamped,
if necessary, the Company and/or its nominee shall be approved for
registration as the holder of the OTI Shares;
(b) such other matters shall be dealt with and resolved upon as the
Company shall reasonably require for the purposes of giving effect to
reverse the OTI Shares;
(c) subject to the relative instruments being registered and duly stamped,
if necessary, BI and/or its nominee shall be approved for registration
as the holder of the CCH Shares; and
(d) such other matters shall be dealt with and resolved upon as BI shall
reasonably require for the purposes of giving effect to revers the CCH
Shares.
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INDEMNITY
7. BGI and Mr. Koon shall jointly and severally indemnify and keep the Company
and/or its associates fully indemnified against all actions, claims, suits,
fees and expenses arising out of or incidental to the performance or
non-performance of undertakings or obligations of BGI, BI and Mr. Koon
under this Deed.
NOTICES
8. 8.1 Any notices or other communications to be given bya party to the other
party shall be in writing and shall be deemed to have been so given if
addressed to its address mentioned herein or such other address as may from
time to time be notified by a party to the other party by notice of not
less than two (2) days.
8.2 Any notice or other communications shall be deemed to have been duly
given if addressed to the party to whom the notice is given:-
(a) upon personal delivery if left at the address shown on the
envelope containing such notice;
(b) two (2) days after the day of posting if sent by local registered
post or seven (7) days after the day of posting if sent y
registered airmail; or
(c) at the time of transmission if sent by e-mail or facsimile
transmission.
8.3 In proving the giving of notice, it shall be sufficient to prove that
personal delivery has been made, or that the notice was dispatched by
registered post and properly addressed or that the transmitting
machine confirmed the e-mail or facsimile transmission, as the case
may be.
FURTHER ASSURANCE
9. The parties shall use their respective reasonable endeavours to procure
that any necessary third parties shall do, execute and perform all such
further deeds, documents, assurances, acts and things as any of the parties
may reasonably require by notice in writing to the other to carry out the
provisions of this Deed into full force and effect.
ENTIRE AGREEMENT
10. This Deed (together with any documents described in or expressed to be
entered into in connection with this Deed) constitutes the entire agreement
between the parties with respect to the matters of this Deed and supersedes
all previous agreement between the parties in relation to such matters.
Each of the parties hereby acknowledges that in entering into this Deed, it
has not relied on any representation or warranty save as expressly set out
herein or in any document referred to herein.
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AMENDMENTS
11. No variation of this Deed shall be valid or effective unless made by one or
more instruments in writing signed by such of the parties that would be
affected by such variation.
SEVERABILITY
12. If at any time any one or more provisions hereof is or becomes invalid,
illegal, unenforceable or incapable of performance in any respect, the
validity, legality, enforceability or performance of the remaining
provisions of this Deed shall not in any way be affected or impaired and
shall continue in full force and effect.
WAIVER
13. No failure to exercise and no delay in exercising on the part of any of the
parties any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise of any right, power of
privilege preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies provided in
this Deed are cumulative and not exclusive of any rights or remedies
otherwise provided by law.
TIME OF THE ESSENCE
14. Any date or period mentioned in this Deed may be extended by agreement
between the parties failing which, as regards any such date or period, time
shall be of the essence of this Deed.
MISCELLANEOUS
15. (a) References to Clauses are references to the clauses of this Deed.
(b) References to masculine gender include references to the feminine
gender and the neuter gender and vice versa.
(c) References to personal include references to individuals, firms,
companies, corporations and unincorporated bodies of persons and vice
versa.
(d) References to the singular number include references to the plural and
vice versa.
(e) The headings in this Deed are for convenience only and do not affect
the interpretation hereof.
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LAW AND JURISDICTION
16. This Deed shall be governed by and construed in accordance with the laws of
the Hong Kong Special Administrative Region and the parties hereof agree to
submit to the non-exclusive jurisdiction of the courts of the Hong Kong
Special Administrative Region.
IN WITNESS whereof the parties have hereunto set their hands and seals the
day and year first above written.
SEALED with the Common Seal and )
SIGNED by CHENG KAI SUM on )
behalf of Opal Technologies, Inc )
in the presence of:- )
SEALED with the Common Seal and )
SIGNED by Koon King Chung, John on )
behalf of Bestalong Group Inc )
in the presence of:- )
SEALED with the Common Seal and )
SIGNED by Koon King Chung, John on )
behalf of Bestalong Inc )
in the presence of:- )
SEALED SEALED and DELIVERED )
by Mr. Koon King Chung, John )
in the presence of:- )
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<TABLE>
Schedule
---------- ---------------------------------------- ---------------------- -----------------------
A B C D
---------- ---------------------------------------- ---------------------- -----------------------
Item No. Description Date Consideration
---------- ---------------------------------------- ---------------------- -----------------------
<S> <C> <C> <C>
1. Agreement for the Appointment of 3 January 1996 RMB7,982,700.00
Market Development Consultant of
Opal Fertilizer Products
---------- ---------------------------------------- ---------------------- -----------------------
2. Agreement for the Technological 8 April 1996 RMB9,500,000.00
Development of Mass Production of Opal
Fertilizer Products
---------- ---------------------------------------- ---------------------- -----------------------
3. Contract for the Purchase of Machinery 30 September 1996 RMB16,500,000.00
(Contract no.:960930)
---------- ---------------------------------------- ---------------------- -----------------------
4. Contract for the Purchase of Machinery 26 October 1996 RMB14,190,000.00
(Contract no.:961026)
---------- ---------------------------------------- ---------------------- -----------------------
</TABLE>
Total: RMB48,172,700.00
