|
|
|
|
Document Preview Asset Purchase Agreement |
||||
|
|
||||
|
Click "Add to Cart" button to purchase document. |
||||
|
|
||||
|
Title: |
Asset Purchase Agreement |
|||
|
Entities: |
|
|||
|
Date: |
2000 |
|||
|
Size: |
Preview shows 57KB of 257KB total |
|||
|
Price: |
$74 |
|||
|
ID: |
#849234 |
|||
|
|
||||
|
||||
|
|
||||
|
Start of Preview |
||||
REDACTED
DATED 25 AUGUST 2000
CONTINENTAL AIR EXPRESS (HK) LIMITED
CONTINENTAL CONTAINER LINES LIMITED
UNION-TRANSPORT (HK) LIMITED
CHENG KWAN KOK DAVID
LAI KWOK FAI
LEWIS BILLY BARNHILL
FRANCIS RAYMOND BELLO
ALBERT PATRICK CATALDO
CHAN KA MING
CHAN KWAN HANG
CHAU HAK CHEONG
CHENG KWAN LUNG
NG CHUN KA
NG SAI KUEN
UTI WORLDWIDE INC.
-----------------------------------
ASSET PURCHASE AGREEMENT
-----------------------------------
BAKER & MCKENZIE
14TH FLOOR HUTCHISON HOUSE
HONG KONG
TELEPHONE: (852) 2846-1888
FAX: (852) 2845-0476
REF: PT/CST/32109600-000001/CST02042.EXE.DOC
<PAGE> 2
REDACTED
CONTENTS
<TABLE>
<CAPTION>
Number Clause Headings Page
------ --------------- ----
<S> <C>
1. Definitions and Interpretation..........................................2
2. Sale of Assets.........................................................15
3. Payment of Purchase Price..............................................15
4. Conditions.............................................................19
5. Pre-Completion Obligations.............................................20
6. Completion.............................................................21
7. Assignment or Novation of Leased Properties............................24
8. Apportionments.........................................................24
9. Transfer of Businesses (Protection of Creditors) Ordinance
(Chapter 49 of the Laws of Hong Kong)..................................25
10. Responsibility for Liabilities.........................................25
11. Third Party Consents...................................................27
12. Employees..............................................................28
13. Retirement Scheme......................................................30
14. Warranties.............................................................30
15. Restriction of Covenantors.............................................33
15A. Investor Representations and Covenants of Lai and Jeffrey Cheng........35
16. Independent Accountants................................................36
17. Further Obligations and Intentions.....................................37
18. Restriction on Announcements...........................................40
19. Costs..................................................................40
20. General................................................................41
21. Notices................................................................42
22. Governing Law and Submission to Jurisdiction...........................45
Schedules
Schedule 1 Warranties......................................................48
Schedule 2 Excluded Assets...................................................
Schedule 3 The Properties....................................................
Schedule 4 Intellectual Property.............................................
Schedule 5 Leasing Agreements................................................
Schedule 6 Machinery and Equipment...........................................
Schedule 7 Transferring Employees............................................
Schedule 8 Purchased Contracts...............................................
Schedule 9 Letter to Employees...............................................
Schedule 10 Retirement Scheme................................................
Schedule 11 Notice of Transfer of Business...................................
Schedule 12 Insurances.......................................................
Schedule 13 Guarantees.......................................................
Schedule 14 Service Agreement................................................
Schedule 15 David Cheng Service Agreement....................................
Execution.....................................................................
</TABLE>
i
<PAGE> 3
REDACTED
<TABLE>
<CAPTION>
Annexures
---------
<S> <C>
Annexure 1 CO Air Accounts...................................................
Annexure 2 CO Container Accounts.............................................
Annexure 3 Sinda December Accounts...........................................
Annexure 4 Customer List.....................................................
Annexure 5 CO Air Management Accounts........................................
Annexure 6 CO Container Management Accounts..................................
Annexure 7 Sinda March Accounts..............................................
</TABLE>
ii
<PAGE> 4
REDACTED
DATE: 25 August 2000
PARTIES:
(1) CONTINENTAL AIR EXPRESS (HK) LIMITED, a company incorporated in Hong
Kong whose registered office is at 6th and 7th Floors, Leahander
Centre, 28 Wang Wo Tsai Street, Tsuen Wan, New Territories, Hong Kong
("CO AIR (HK)").
(2) CONTINENTAL CONTAINER LINES LIMITED, a company incorporated in Hong
Kong whose registered office is at 6th and 7th Floors, Leahander
Centre, 28 Wang Wo Tsai Street, Tsuen Wan, New Territories, Hong Kong
("CO CONTAINER (HK)"; CO Air (HK) and CO Container (HK) are
collectively referred to herein as the "VENDORS" and singly as the
"VENDOR").
(3) UNION-TRANSPORT (HK) LIMITED (TO BE RENAMED AS UTI (HK) LIMITED), a
company incorporated in Hong Kong with registered number 319402 whose
registered office is at 14th Floor, COL Tower, World Trade Square, 123
Hoi Bun Road, Kwun Tong, Kowloon, Hong Kong (the "PURCHASER").
(4) CHENG KWAN KOK DAVID of 16C, Block C, The Crescent, 11 Homantin Hill
Road, Kowloon, Hong Kong ("DAVID CHENG").
(5) LAI KWOK FAI of Flat J1, Block J, 1st Floor, Beverly Hill, 6 Broadwood
Road, Hong Kong ("LAI"; the Vendors, David Cheng and Lai are
collectively referred to herein as the "WARRANTORS" and singly as the
"WARRANTOR").
(6) LEWIS BILLY BARNHILL of 8505 Freeport Parkway, Suite 170, Irving, Texas
75063, United States of America ("BARNHILL").
(7) FRANCIS RAYMOND BELLO of 182-16 147th Avenue, Jamaica, NY 11413, United
States of America ("BELLO").
(8) ALBERT PATRICK CATALDO of 80 Everett Avenue, Suite 301, Chelsea, MA
02150, United States of America ("CATALDO").
(9) CHAN KA MING of 6th and 7th Floors, Leahander Centre, 28 Wang Wo Tsai
Street, Tsuen Wan, New Territories, Hong Kong ("ALEX CHAN").
(10) CHAN KWAN HANG of 6th and 7th Floors, Leahander Centre, 28 Wang Wo Tsai
Street, Tsuen Wan, New Territories, Hong Kong ("TOBBY CHAN").
(11) CHAU HAK CHEONG of 6th and 7th Floors, Leahander Centre, 28 Wang Wo
Tsai Street, Tsuen Wan, New Territories, Hong Kong ("CHAU").
(12) CHENG KWAN LUNG of 6th and 7th Floors, Leahander Centre, 28 Wang Wo
Tsai Street, Tsuen Wan, New Territories, Hong Kong ("JEFFREY CHENG").
<PAGE> 5
REDACTED
(13) NG CHUN KA of 11120 S. Hindry Avenue, Unit A, Los Angeles, CA 90045,
United States of America ("JOE NG").
(14) NG SAI KUEN of 182-16 147th Avenue, Jamaica, NY 11413, United States of
America ("SAI NG"; David Cheng, Lai, Barnhill, Bello, Cataldo, Alex
Chan, Tobby Chan, Chau, Jeffrey Cheng, Joe Ng and Sai Ng are
collectively referred to herein as the "KEY EMPLOYEES" and singly as
the "KEY EMPLOYEE", the Vendors and the Key Employees are collectively
referred to herein as the "COVENANTORS" and singly as the
"Covenantor").
(15) UTI WORLDWIDE INC., a company incorporated in the British Virgin
Islands whose registered office is at 9 Columbus Centre, Pelican Drive,
Tortola, British Virgin Islands ("UTI WORLDWIDE").
RECITALS:
(A) The Vendors carry on the business of customs brokerage, freight
forwarding, warehousing and distribution and other related services.
The Vendors wish to sell and the Purchaser wishes to purchase the
business, and the assets used in it, as a going concern on the terms
and conditions set out in this Agreement.
(B) The Purchaser requires the Warrantors who have requested the Purchaser
to enter into this Agreement, to give such covenants and undertakings
as are set out herein as a condition of the Purchaser's entry into this
Agreement.
(C) The US Vendors (as hereinafter defined), the US Purchaser (as
hereinafter defined) and the Key Employees have executed
contemporaneously with this Agreement an agreement (the "US AGREEMENT")
for the sale and purchase of the business (and the assets used in it)
carried on by the US Vendors on the terms and conditions set out
therein.
(D) UTi Worldwide has agreed to guarantee the performance by the Purchaser
of its obligations under Clauses 3.1.2.2 to 3.1.2.4.
TERMS AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement where the context so admits the following words and
expressions shall have the following meanings:
"ACCOUNTING DATE" 31 December 1999;
2
<PAGE> 6
REDACTED
"ACCOUNTS" the CO Air Accounts, the CO Container
Accounts and the Sinda December Accounts;
"ACCOUNTS RECEIVABLE" all book debts, trade and other debts, notes
receivable and other rights to payment
arising from the operation of the Business
before the Completion Date (including the
right to receive payment for services
rendered before the Completion Date but not
invoiced before such date) and including the
benefit of all guarantees and security in
respect thereof;
"ASSETS" the Goodwill, the benefit of the Insurances,
Intellectual Property, Machinery and
Equipment, Leased Properties, the benefit of
the Purchased Contracts, Sales
Documentation, the Sinda Interest, Books and
Records (other than minute books relating to
directors' and shareholders' meetings and
statutory books), the Customer List and all
other rights and assets used in the Business
immediately prior to Completion, but not
including the Excluded Assets;
"ASSOCIATED COMPANY" (i) in relation to a company, any
company which is its holding company
or a subsidiary of it or of its
holding company, as those terms are
defined in section 2 of the Companies
Ordinance;
(ii) in relation to an individual, any
company:
(aa) in which such individual:
(1) controls the composition
of the board of
directors;
(2) controls more than half
of the voting power of
such company; or
(3) holds more than half of
the issued share capital
(excluding any part of
it which carries no
right to participate
beyond a specified
3
<PAGE> 7
REDACTED
amount in a distribution
of either profits or
capital); or
(bb) which is a subsidiary (as
such term is defined in
section 2 of the Companies
Ordinance) of a company which
falls within any of the
categories listed in
paragraph (ii)(aa) above;
"BOOKS AND RECORDS" originals and copies in whatever form and
upon whatever media they may be recorded of
all registers, books, reports,
correspondence, files, records, accounts,
documents and other material relating to or
used in connection with the Business, the
Assets, the Transferring Employees and the
customers on the Customer List;
"BUSINESS" the business of customs brokerage, freight
forwarding, warehousing and distribution and
other related services as carried on by the
Vendors immediately prior to Completion
including that carried on at the Properties
under the names "Continental Air Express
(HK) Limited" and "Continental Container
Lines Limited" and, where the context
permits, shall include the Assets;
"BUSINESS DAY" a day (other than a Saturday or a Sunday) on
which banks are generally open for business
in Hong Kong;
"CASH FLOAT" the cash balance including all cash-in-hand
and at bank, held by the Vendors immediately
prior to Completion for the purposes of the
Business;
"CHINESE PARTY" the PRC joint venture party holding a 49%
equity interest in Sinda;
"CLASS A LICENCE" the air transportation sales agency business
operation approval certificate (category 1
cargo transportation) issued by the Civil
Aviation Administration of China and the PRC
international cargo transportation agency
enterprise approval certificate issued by
the Ministry of Foreign Trade and Economic
Co-operation of the PRC;
4
<PAGE> 8
REDACTED
"CO AIR ACCOUNTS" the audited financial statements of CO Air
(HK) as at and for the accounting period
which ended on the Accounting Date
(comprising a balance sheet, profit and loss
account, statement of total recognised gains
and losses, statement of source and
application of funds, notes and directors'
and auditors' report), a copy of which is
annexed hereto as Annexure 1 and initialled
for the purposes of identification by the
Vendors and the Purchaser;
"CO AIR (CHINA)" Continental Air Express (China) Co. Ltd., a
company incorporated in the British Virgin
Islands;
"CO AIR MANAGEMENT
ACCOUNTS" the unaudited balance sheet as at 30 April
2000 and the unaudited profit and loss
account for the period ending on such date
of CO Air (HK) Hong Kong office, CO Air (HK)
Shanghai representative office, CO Air (HK)
Guangzhou representative office, CO Air (HK)
Qingdao representative office and CO Air
(HK) Tianjin representative office and the
unaudited balance sheet as at 30 April 2000
and the unaudited profit and loss account
for the period from 1 April 2000 and ending
on 30 April 2000 of CO Air (HK) Beijing
representative office, copies of which are
annexed hereto as Annexure 5 and initialled
for the purposes of identification by the
Vendors and the Purchaser;
"CO CARGO (CA)" Continental Cargo Logistics Inc., a company
incorporated in the State of California,
USA;
"CO CARGO (NY)" Continental Cargo Logistics Inc., a company
incorporated in the State of New York, USA;
"CO CONTAINER ACCOUNTS" the audited financial statements of CO
Container (HK) as at and for the accounting
period which ended on the Accounting Date
(comprising a balance sheet, profit and loss
account, statement of source and application
of funds, notes and directors' and auditors'
report), a copy of which is annexed hereto
as Annexure 2 and initialled for the
purposes of identification by the Vendors
and the Purchaser;
"CO CONTAINER the unaudited balance sheet as at 30 April
2000,
5
<PAGE> 9
REDACTED
MANAGEMENT
ACCOUNTS" and the unaudited profit and loss account
for the period from 1 April 2000 and ending
on such date of CO Container (HK), a copy of
which is annexed hereto as Annexure 6 and
initialled for the purposes of
identification by the Vendors and the
Purchaser;
"CO CONTAINER (US)" Continental Container Line, Inc., a company
incorporated in the State of New York, USA;
"COMPANIES ORDINANCE" the Companies Ordinance (Chapter 32 of the
Laws of Hong Kong);
"COMPANY" a company or body corporate wherever
incorporated;
"COMPLETION" completion of the sale and purchase of the
Business pursuant to Clause 6;
"COMPLETION DATE" 1 September 2000 (or such other date as the
Parties may agree in writing);
"CONDITIONS" the conditions specified in Clause 4.1;
"CUSTOMER LIST" the list of customers of the Vendors set out
in Annexure 4, as supplemented by written
notice to the Purchaser by the Vendors up to
and including the Completion Date by the
addition of persons with whom the Vendors
have transacted business between the date
hereof and the Completion Date;
"DAVID CHENG SERVICE the service agreement to be entered into
AGREEMENT" between the Purchaser and David Cheng
substantially in the form set out in
Schedule 15;
"DISCLOSURE LETTER" the letter of today's date from the Vendors
to the Purchaser in the approved terms;
"ENCUMBRANCES" all pledges, charges, liens, mortgages,
security interests, pre-emption rights,
options and any other encumbrances or third
party rights or claims of any kind (other
than repairmens' and similar liens arising
or incurred in the ordinary course of the
Business and securing obligations not
material in amount and provisions
constituting reservation and retention of
title clauses entered into in the ordinary
6
<PAGE> 10
REDACTED
course of the Business in favour of
suppliers of goods purchased in the ordinary
course of the Business);
"EXAMINATION AND the Ministry of Foreign Trade and Economic
APPROVAL AUTHORITY" Co-operation of the PRC or its relevant
branch which has the authority to approve
the transfer of the Sinda Interest from CO
Air (HK) to the Purchaser;
"EXCLUDED ASSETS" those assets used in or relating to the
Business which are excluded from the sale
and purchase and which are identified in
Schedule 2;
"GOODWILL" the goodwill of the Vendors in connection
with the Business including the exclusive
right for the Purchaser to represent itself
as carrying on the Business in succession to
the Vendors;
"HONG KONG" the Hong Kong Special Administrative Region
of the PRC;
"HONG KONG DISCLOSURE the bundle of documents annexed to the
BUNDLE" Disclosure Letter marked "Hong Kong
Disclosure Bundle" and initialled for
purposes of identification by the
Purchaser's Solicitors and the Vendors'
Solicitors;
"INSURANCES" the policies of assurance and insurance,
particulars of which are set out in Schedule
12;
"INTELLECTUAL PROPERTY" the following rights arising or used in
connection with the Business (including but
not limited to those listed in Schedule 4):
(i) all patents, registered designs,
design rights, trade marks, service
marks, copyrights, Internet domain
names of any level, rights in circuit
layouts, topography rights, trade and
business names, including the benefit
of all registrations of and
applications to register and rights
to apply for registration of any of
the aforesaid items, and all rights
in the nature of any of the aforesaid
items, anywhere in the world;
7
<PAGE> 11
REDACTED
(ii) rights in the nature of unfair
competition rights and rights to sue
for passing off;
(iii) all trade secret, confidentiality and
other proprietary rights, including
all rights to know-how and other
technical information;
(iv) the benefit of all licences and
permissions granted to or enjoyed by
the Vendors in respect of any of the
foregoing;
"KEY HK/PRC David Cheng, Lai, Alex Chan, Tobby Chan and
EMPLOYEES" Jeffrey Cheng;
"LEASED PROPERTIES" the properties occupied by the Vendors, for
the purposes of the Business, which are
described in Schedule 3 Part 2;
"LEASES" all the leases, sub-leases, tenancy
agreements, sub-tenancy agreements, licences
or other documents (including any options
for extension or renewal relating thereto)
granted or agreed to be granted to either of
the Vendors or pursuant to which either of
the Vendors holds or occupies any property
for the purposes of the Business, details of
which are set out in Schedule 3;
"LEASING AGREEMENTS" the leasing and hire purchase agreements
listed in Schedule 5;
"LOGISTICS MANAGEMENT" The Logistics Management Group Limited, a
company incorporated in the British Virgin
Islands;
"MACHINERY AND the movable plant, machinery, vehicles,
EQUIPMENT" office and warehouse equipment, computer
hardware and software, furniture and
furnishings, together with all spare parts,
accessories and consumable supplies therefor
owned or used by the Vendors in the Business
immediately prior to Completion (excluding
the Excluded Assets and any items which are
not owned by the Vendors but for which the
Vendors have a right of user pursuant to a
Purchased Contract) including without
limitation those items which are described
in Schedule 6;
8
<PAGE> 12
REDACTED
"MANAGEMENT ACCOUNTS" the CO Air Management Accounts and the CO
Container Management Accounts;
"MONTH" calendar month;
"OCCUPATIONAL an occupational retirement scheme within the
RETIREMENT SCHEME" meaning given to that term in section 2 of
the Occupational Retirement Schemes
Ordinance (Chapter 426 of the Laws of Hong
Kong);
"OWNED PROPERTIES" the properties, short particulars of which
are set out in Schedule 3 Part 1;
"PARTIES" the named parties to this Agreement and
their respective successors, personal
representatives and permitted assigns;
"PATENTS" the patents, petty patents and registered
designs and applications therefor listed in
Schedule 4 Part 1;
"PRC" the People's Republic of China but
excluding, for the purposes of this
Agreement, Hong Kong, Macau and Taiwan;
"PROPERTIES" the Owned Properties and the Leased
Properties;
"PURCHASE PRICE" the total price to be paid by the Purchaser
under Clause 3.1 of this Agreement;
"PURCHASED CONTRACTS" (i) the Leasing Agreements; (ii) all
contracts for the supply of services by the
Vendors in connection with the Business
which are in existence at the date hereof
and which are not fully performed prior to
commencement of business on the Completion
Date (a list of those contracts which are in
writing is set out in Schedule 8 Part 1);
(iii) all the written purchase orders or
contracts for the purchase by the Vendors of
supplies in connection with the Business
which are in existence at the date hereof in
respect of which delivery has not been made
on or before the commencement of business on
the Completion Date (a list of which is set
out in Schedule 8 Part 2); (iv) all licences
granted by the Vendors in relation to the
Intellectual Property which are in existence
at the date hereof (a list of which is set
out in Schedule 8 Part 3); (v) all
agreements with airlines, shipping
9
<PAGE> 13
REDACTED
lines, transportation companies and
warehouses in connection with the Business
which are in existence at the date hereof
and have not been fully performed (a list of
which is set out in Schedule 8 Part 4); and
(vii) other than leases under which the
Vendors occupy the Leased Properties, all
other contracts entered into in the course
of carrying on the Business to which either
of the Vendors is a party and which have not
been fully performed prior to commencement
of business on the Completion Date which
relate to the Business and which (a) if
entered into prior to the date hereof are
listed in Schedule 8 Part 5 or (b) if
entered into after the date hereof are
approved by the Purchaser under Clause 5.1;
"PURCHASER'S SOLICITORS" Baker & McKenzie of 14th Floor, Hutchison
House, 10 Harcourt Road, Central, Hong Kong;
"RELATED COMPANY" in relation to the Vendors, a company in
which one or more directors or substantial
shareholders of either of the Vendors and/or
its holding company either have a beneficial
interest or are in a position to exercise
significant influence therein;
"RETAINED PURCHASE the retained purchase price to be paid by
PRICE" the Purchaser pursuant to Clause 3.1.2;
"RETIREMENT SCHEME" the Continental Air Express (HK) Limited
Retirement Scheme registered under the
Occupational Retirement Schemes Ordinance
(Chapter 426 of the Laws of Hong Kong) with
registration number R015631(A), which was
established by a deed of participation dated
5 July 1996 and all rules and regulations
made in connection therewith;
"SALES DOCUMENTATION" all sales publications, advertising and
promotional materials, printed terms and
conditions of sale, business forms,
instructional material and other technical
and sales materials which relate to the
Business, together with any plates, blocks,
negatives, computer discs or tapes and
similar items relating to them;
"SECURITIES ACT" The United States Securities Act of 1933 (as
amended);
10
<PAGE> 14
REDACTED
"SERVICE AGREEMENTS" the service agreements substantially in the
form set out in Schedule 14;
"SINDA" Sinda International Transportation Service
Co., Ltd. (a Sino-foreign equity joint
venture company established under the laws
of the PRC;
"SINDA BUSINESS" the business of customs brokerage, freight
forwarding, warehousing and distribution and
other related services as carried on by
Sinda immediately prior to Completion;
"SINDA DECEMBER the audited financial statements of Sinda as
ACCOUNTS" at and for the accounting period which ended
on the Accounting Date (comprising a balance
sheet, profit and loss account and auditors'
report), a copy of which is annexed hereto
as Annexure 3 and initialled for the
purposes of identification by the Vendors
and the Purchaser;
"SINDA INTEREST" CO Air (HK)'s 51% equity interest in Sinda;
"SINDA MARCH ACCOUNTS" the audited financial statements of Sinda as
at 31 March 2000 and for the period from 1
April 1999 to 31 March 2000 (comprising a
balance sheet, profit and loss account and
auditors' report), a copy of which is
annexed hereto as Annexure 7 and initialled
for purposes of identification by the
Vendors and the Purchaser;
"TAX" all forms of taxation, estate duties,
deductions, withholdings, duties, imposts,
levies, fees, charges, social security
contributions and rates imposed, levied,
collected, withheld or assessed by any
local, municipal, regional, urban,
governmental, state, federal or other body
in Hong Kong or elsewhere and any interest,
additional taxation, penalty, surcharge or
fine in connection therewith;
"THIRD PARTY RIGHTS" the rights given or granted to the Vendors
by third parties for the use by the Vendors
of the trade marks, service marks, trade
names, patents, designs and copyright as
listed in Part 4 of Schedule 4 and know-how
and confidential information owned by such
third parties and any other rights given to
the
11
<PAGE> 15
REDACTED
Vendors under any agreements including but
not limited to, licence, distribution,
marketing or sales agreements, for use in or
relating to the Business and which rights
are assignable from the Vendors to the
Purchaser;
"TRADE MARKS" the registered trade marks and trade mark
applications listed in Schedule 4 Part 2;
"TRANSFER CONTRACT" a contract to be signed by CO Air (HK) and
the Purchaser for effecting the transfer of
the Sinda Interest in form and substance
satisfactory to the Purchaser;
"TRANSFERRING EMPLOYEES" all of the employees of the Vendors whose
employment is to be transferred to the
Purchaser, a list of whom appears in
Schedule 7;
"US BUSINESS" the business of customs brokerage, freight
forwarding, warehousing and distribution and
other related services as carried on by the
US Vendors immediately prior to Completion
(as defined in the US Agreement) including
that carried on under the names "Continental
Container Line, Inc." and "Continental Cargo
Logistics Inc.";
"US PURCHASER" Union-Transport Corporation, a company
incorporated in the State of New York, USA;
"US VENDORS" CO Container (US), CO Cargo (NY) and CO
Cargo (CA);
"USA" United States of America;
"UTI GROUP" UTi Worldwide and its subsidiaries;
"VENDORS' SOLICITORS" Tsang, Chan & Wong of 16th Floor, Wing On
House, 71 Des Voeux Road Central, Hong Kong;
"WARRANTIES" the representations, warranties and
undertakings contained or referred to in
Clause 14 and Schedule 1;
"YEAR-ONE NET PROFIT" subject as provided in Clause 3.2, the net
profit before tax of the Business, the Sinda
Business and
12
<PAGE> 16
REDACTED
the US Business for the 12-month period
immediately after Completion;
"YEAR-TWO NET PROFIT" subject as provided in Clause 3.2, the net
profit before tax of the Business, the Sinda
Business and the US Business for the
12-month period commencing on the date
immediately after the expiration of 12
months after Completion and ending on the
date falling 24 months after Completion;
"YEAR-THREE NET PROFIT" subject as provided in Clause 3.2, the net
profit before tax of the Business, the Sinda
Business and the US Business for the
12-month period commencing on the date
immediately after the expiration of 24
months after Completion and ending on the
date falling 36 months after Completion;
"YEARLY NET PROFITS" the Year-one Net Profit, Year-two Net Profit
and Year-three Net Profit;
"HK$" Hong Kong dollars, the lawful currency of
Hong Kong;
"RMB" Renminbi, the lawful currency of the PRC;
and
"US$" United States dollars, the lawful currency
of the USA.
1.2 Save where the context otherwise requires words and phrases
the definitions of which are contained or referred to in the
Companies Ordinance shall be construed as having the meaning
thereby attributed to them.
1.3 Any references, express or implied, to statutes or statutory
provisions shall be construed as references to those statutes
or provisions as respectively amended or re-enacted or as
their application is modified from time to time by other
provisions (whether before or after the date hereof) and shall
include any statutes or provisions of which they are
re-enactments (whether with or without modification) and any
orders, regulations, instruments or other subordinate
legislation under the relevant statute or statutory provision.
References to sections of consolidating legislation shall
wherever necessary or appropriate in the context be construed
as including references to the sections of the previous
legislation from which the consolidating legislation has been
prepared.
13
<PAGE> 17
REDACTED
1.4 References in this Agreement to Clauses, Schedules, Annexures
and Attachments are to clauses in and schedules, annexures and
attachments to this Agreement (unless the context otherwise
requires). The Recitals, Schedules, Annexures and Attachments
to this Agreement shall be deemed to form part of this
Agreement.
1.5 Headings are inserted for convenience only and shall not
affect the construction of this Agreement.
1.6 The expressions "CO Air (HK)", "CO Container (HK)", "the
Vendors", "the Purchaser", "David Cheng", "Lai", "Barnhill",
"Bello", "Cataldo", "Alex Chan", "Tobby Chan", "Chau",
"Jeffrey Cheng", "Joe Ng", "Sai Ng", "the Key Employees", "the
Covenantors", "UTi Worldwide" and "the Warrantors" shall,
where the context permits, include their respective
successors, personal representatives and permitted assigns.
1.7 References to "persons" shall include bodies corporate,
unincorporated associations and partnerships (whether or not
having separate legal personality).
1.8 References to writing shall include any methods of producing
or reproducing words in a legible and non-transitory form.
1.9 The masculine gender shall include the feminine and neuter and
the singular number shall include the plural and vice versa.
1.10 All warranties, representations, indemnities, covenants,
agreements and obligations given or entered into by more than
one person are given or entered into jointly and severally.
1.11 A document expressed to be "in the approved terms" means a
document the terms of which have been approved by or on behalf
of the Vendors and the Purchaser and a copy of which has been
signed for the purposes of identification by or on behalf of
those Parties.
1.12 In construing this Agreement:
1.12.1 the rule known as the ejusdem generis rule shall
not apply and, accordingly, general words
introduced by the word "other" shall not be given
a restrictive meaning by reason of the fact that
they are preceded by words indicating a
particular class of acts, matters or things; and
1.12.2 general words shall not be given a restrictive
meaning by reason of the fact that they are
followed by particular examples intended to be
embraced by the general words.
14
<PAGE> 18
REDACTED
2. SALE OF ASSETS
2.1 Subject to the terms of this Agreement, each of the Vendors
shall sell as beneficial owner, and the Purchaser shall
purchase, the Business carried on by each of the Vendors
respectively as a going concern and all of the Assets relating
to the Business carried on by each of the Vendors respectively
free from all Encumbrances. The sale and purchase shall take
effect from the Completion Date subject to Completion.
2.2 Nothing in this Agreement shall operate to transfer from the
Vendors, nor to impose any obligation or liability on the
Purchaser in respect of, any of the Excluded Assets nor any
other assets or liabilities of the Vendors except as
specifically provided in this Agreement.
3. PAYMENT OF PURCHASE PRICE
3.1 The Purchase Price shall be satisfied by the Purchaser as
follows:
3.1.1 the sum of US$ *** shall be paid on account of the
Purchase Price at Completion as provided in Clause 6;
3.1.2 the Retained Purchase Price shall be payable as
follows:
|
End of Preview |
Home Intelligence Services Subscriptions News About Us