Particulars
of the Company
|
Company
Name:
|
Magum
International Holdings Limited
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|
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Company
Number
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Registered
Address:
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,
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Board
of Directors:
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Issued
Share Capital:
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50,000
shares of US$1.00 each
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12
SCHEDULE
2
Shareholders
of the Company
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Name
and address of shareholder
|
Number
of Shares held Pre-Transaction
|
Number
of Shares held under this Agreement
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Number
of held Post Transaction Shares
|
Total
Consideration
|
Issuance
of Consideration Shares
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|
Column
1
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Column
2
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Column
3
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Column
4
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Column
5
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Column
6
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|
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USD
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|
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Linlin
GAO
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13,250
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13,250
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0
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2,750,000
|
907,590
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|
|
|
|
|
|
|
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Hua
BI
|
12,250
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12,250
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0
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2,750,000
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907,590
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|
|
|
|
|
|
|
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Lulu
GONG
|
12,250
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12,250
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0
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2,750,000
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907,590
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|
|
|
|
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Chun
LIU
|
12,250
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12,250
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0
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2,750,000
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907,590
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|
|
|
|
|
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Total
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50,000
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50,000
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0
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11,000,000
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3,630,360
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13
SCHEDULE
3
Warranties
In
this Schedule, unless the context otherwise indicates each of the Warranties shall be deemed to repeated mutatis mutandis at the date
of this Agreement and at Completion for the Company and each controlled entity of the Company.
In
this schedule where the context admits:-
"Accounts"
means the Audited Accounts, Interim Accounts and the Completion Accounts;
"Balance
Sheet Date" means 31 December 2020, 30 June 2021 and the Completion Date;
"Disclosed
Charges" means, in respect of the Properties, the charges, mortgages or encumbrances in favour of independent third parties
which have been registered in the relevant land registry in its place of business and which remain, as at the date of this Agreement
and at Completion, undischarged;
"Intellectual
Property" means patents, trademarks, service marks, trade names, registered designs, designs, copyrights and other forms of
intellectual or industrial property (in each case in any part of the world and whether or not registered or registrable and for the full
period thereof and all extensions and renewals thereof and applications for registration of or otherwise in connection with the foregoing),
know-how, inventions, formulae, confidential or secret processes and information, computer programs and software, and any other protected
rights and assets, and any licences and permissions in connection therewith;
The
facts and information set out in the recitals and, the Schedules and all documents attached are true and all information which has been
provided in writing to the Purchaser or its representatives or advisers by the Vendor or by any Director, officer or other official of
the Company or by their respective professional advisers or other agents was when given and is now true and accurate in all material
respects. There is no fact or matter which has not been disclosed which renders any such information untrue, inaccurate or misleading
or the disclosure of which might reasonably affect the willingness of a willing purchaser to purchase the Sale Shares in accordance with
the provisions of this Agreement.
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(B)
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Assessment
of prospects
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The
information disclosed to the Purchaser or its representatives or professional advisers, by the Vendor and the Directors officers or other
officials of the Company regarding the current trading and prospects of the Company comprises all information which is material for the
reasonable assessment of the financial and trading prospects of the Company.
14
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3.
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COMPLIANCE
AND ABILITY TO SELL
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(A)
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Constitution
of the Company
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The
copy of the memorandum and articles of association of the Company which is provided to the Purchaser is true and complete in all respects
and has embodied in it or annexed to it a copy of every such resolution and agreement required by law to be annexed to it and the Company
has at all times carried on its business and affairs in all respects in accordance with its memorandum and articles of association and
all such resolutions and agreements.
The
Company is a duly organised limited liability company validly existing under the laws of the place of its incorporation and has the corporate
powers and authorises to carry on the business presently carried on by it and to own and hold the assets used therewith. The Company
has complied with the provisions of all applicable laws, regulations (and all orders notices and directions made thereunder) and all
applicable codes or practices. All returns, particulars, resolutions and other documents required to be filed with or delivered to the
registrar of companies or to any other authority whatsoever by the Company have been correctly and properly prepared and so filed or
delivered.
Each
of the Vendors has full power to enter into and perform this Agreement respectively and this Agreement will constitute, binding obligations
on each such party, enforceable in accordance with their terms.
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(A)
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Capital
of the Company
|
The
Sale Shares together constitute 100% of the issued share capital of the Company as at the date of this Agreement and are fully paid up.
There is no Encumbrance or other form of agreement (including conversion rights and rights of pre-emption) on, over or affecting the
Sale Shares or any unissued shares, debentures or other securities of the Company and there is no agreement or commitment to give or
create any of the foregoing, and no claim has been made by any person to be entitled to any of the foregoing, and no person has the right
(whether exercisable now or in the future and whether contingent or not) to call for the issue of any share or loan capital of the Company
under any of the foregoing.
(i)
All the Sale Shares are solely legally and beneficially owned by and registered in the names of the respective Vendors in the proportions
set out in column 2 of Schedule 2; and (ii) All the Sale Shares, and the unissued share capital of the Company are free from
any Encumbrance and there are no arrangements in force or claimed entitling or allegedly entitling any person to any Encumbrance.
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(C)
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Reorganisation
of share capital
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The
Company has not at any time, other than the issue of shares to the Vendors:
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(i)
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repaid,
redeemed or purchased or agreed to repay, redeem or purchase any of its shares, or otherwise
reduced or agreed to reduce its issued share capital or any class of it; or
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15
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(ii)
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capitalised
or agreed to capitalise in the form of shares, debentures or other securities or in paying
up any amounts unpaid on any shares, debentures or other securities, any profits or reserves
of any class or description or passed or agreed to pass any resolution to do so.
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The
Company:
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(i)
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is
not and has not agreed to become the holder or beneficial owner of any class of any shares,
debentures or other securities of any other company (wherever incorporated);
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(ii)
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has
not been and has not agreed to become a Subsidiary of any other company or under the control
of any group of companies or consortium;
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(iii)
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is
not and has not at any time been and has not agreed to become a member of any partnership,
joint venture, consortium or other unincorporated association; and
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(iv)
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has
no branch, place of business, permanent establishment or substantial assets outside of China.
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The
Accounts:
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(i)
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are
prepared in accordance with the requirements of all relevant laws, statutes, with good accounting
principles and practices generally accepted at the date hereof in [International
Accounting Standards] for companies carrying on a similar business to that of the
Company comply with the laws and regulations and all relevant statements of standard accounting
practice and accounting guidelines issued by the relevant authorities, are prepared on a
basis consistent with preceding accounting periods of the Company and with the books of account
of the Company and are true and accurate in all material respects;
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(ii)
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disclose
a true and fair view of the assets and liabilities of the Company at the Balance Sheet Date
and of its profits for the financial year ended on such date;
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(iii)
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contain
full provision or reserve for bad and doubtful debts, burdensome contracts or other obligations,
obsolescent or slow moving stocks and for depreciation on fixed assets, which provision or
reserve was when made and is now adequate;
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(iv)
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contain
a note of all capital commitments of the Company at the Balance Sheet Date, which note was
when made and is now adequate, fair and not misleading; and
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(v)
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contain
full provision or reserves (as appropriate) for all Taxation.
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At
the Balance Sheet Date, the Company had no liabilities known, actual or contingent (including contingent liabilities to customers and
contingent liabilities for Taxation) which were not disclosed, noted or provided for in the Accounts.
16
All
accounts, books, ledgers, financial and other necessary records of whatsoever kind of the Company (including all invoices and other records
required for tax):
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(i)
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have
been fully, properly and accurately maintained, are in the possession of the Company and
contain true and accurate records of all matters including those required to be entered in
them by applicable laws and no notice or allegation that any of the same is incorrect or
should be rectified has been received;
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(ii)
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do
not contain or reflect any material inaccuracies or discrepancies;
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(iii)
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give
and reflect a true and fair view of the matters which ought to appear in them and in particular
of the financial, contractual and trading position of the Company and of its fixed and current
assets and liabilities (actual and contingent), debtors and creditors;
and
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(iv)
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contain
accurate information in accordance with International Accounting Standards relating to all
transactions to which the Company has been a party and the Accounts do not overstate the
value of any asset or understate any liability of the Company at the Balance Sheet Date.
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17
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6.
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POST
BALANCE SHEET DATE EVENTS
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Since
the Balance Sheet Date the Company:
has
carried on its business in the ordinary and usual course and without entering into any transaction, assuming any liability or making
any payment not provided for in the Accounts which is not in the ordinary course of business and without any interruption or alteration
in the nature, scope or manner of its business and nothing has been done which would be likely to prejudice the interests of the Purchaser
as a prospective purchaser of the Sale Shares;
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(B)
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Financial
position and prospects
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has
not experienced any deterioration in its financial or trading position or prospects or turnover or suffered any diminution of its assets
by the wrongful act of any person and the value of its net assets is not less than the value of its net assets as at the Accounts Date
as shown by the Accounts and the Company has not had its business, profitability or prospects adversely affected by the loss of any important
customer or source of supply or by any abnormal factor not affecting similar businesses to a like extent and there are no facts which
are likely to give rise to any such effects;
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(C)
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Assets
and liabilities
|
has
not acquired or disposed of or agreed to acquire or dispose of any assets or assumed or incurred or agreed to assume or incur any liabilities
(actual or contingent) otherwise than in the ordinary course of business;
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(D)
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Distributions
and loan repayments
|
has
not declared, made or paid any dividend, bonus or other distribution of capital or income (whether a qualifying distribution or otherwise)
and (excluding fluctuations in overdrawn current accounts with bankers) no loan or loan capital of the Company has been repaid in whole
or in part or has become due or is liable to be declared due by reason of either service of a notice or lapse of time or otherwise howsoever;
has
not carried out or entered into any transaction and no other event has occurred in consequence of which (whether alone or together with
any one or more transactions or events occurring before, on or after the date of this Agreement) any liability of the Company to Taxation
has arisen or will arise (or would have arisen or would or might arise but for the availability of any relief, allowance, deduction or
credit) other than profits tax on the actual income (not chargeable gains or deemed income) of the Company arising from transactions
entered into in the ordinary course of business;
has
not made any change to the remuneration, terms of employment, emoluments or pension benefits of any present or former director, officer
or employee of the Company who on the Balance Sheet Date was entitled to remuneration in excess of RMB 500,000 (or its equivalent in
any other currency) per annum and has not appointed or employed any additional director, officer or employee entitled as aforesaid;
has
not waived or released any debts in whole or in part and has not written off debts in an amount exceeding RMB 20,000 (or its equivalent
in any other currency) in the aggregate;
18
has
not entered into contracts involving capital expenditure in an amount exceeding in the aggregate RMB 100,000 (or its equivalent in any
other currency);
(including
any class of its members) has not passed any resolution whether in general meeting or otherwise;
has
not become aware that any event has occurred which would entitle any third party to terminate any contract or any benefit enjoyed by
it or call in any money before the normal due date therefor;
has
paid its creditors within the times agreed with such creditors and does not have any debts outstanding which are overdue for payment
by more than four weeks;
has
not borrowed or raised any money or taken any financial facility (except such short term borrowings from bankers as are within the amount
of any overdraft facility which was available to the Company at the Balance Sheet Date) or since the Balance Sheet Date renegotiated
or received any notice from any banker that such banker wishes to renegotiate any overdraft facility available to the Company at the
Balance Sheet Date.
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8.
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TRANSACTIONS
WITH VENDOR AND DIRECTORS
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There
is not outstanding:
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(i)
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any
indebtedness or other liability (actual or contingent) owing by the Company to any of the
Vendors or any director of the Company of any of them or owing to the Company by any of the
Vendor or any director of the Company; or
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(ii)
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any
guarantee or security for any such indebtedness or liability as aforesaid.
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(B)
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Contracts
and arrangements
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(i)
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There
is not now outstanding, any agreement, arrangement or understanding (whether legally enforceable
or not) to which the Company is a party or has an interest and in which any of the Vendor,
or any director of the Company of any of them is interested whether directly or indirectly;
or
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(ii)
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The
Company is not a party to nor has its profits or financial position during the last year
been affected by any agreement or arrangement which is not entirely of an arm's length nature.
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19
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(C)
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Competitive
interests
|
None
of the Vendors nor any director of the Company nor any Connected Person of any of them or intends to acquire, either individually or
collectively, or with any other person or persons, has any estate, right or interest, directly or indirectly, in any business other than
that now carried on by the Company which is or is likely to be or become competitive with the business of the Company.
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(D)
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Intellectual
Property
|
None
of the Vendors nor any director of the Company either individually, collectively or with any other person or persons are not interested
in any way whatsoever in any Intellectual Property used and not wholly owned by the Company.
None
of the Vendors nor any director of the Company, is entitled to or has claimed entitlement to any remuneration, compensation or other
benefit from the Company.
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(A)
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Debts
owed to the Company
|
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(i)
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The
Company does not own the benefit of any debt (whether present or future) other than debts
which have accrued to it in the ordinary course of business.
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(ii)
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All
debts owed to the Company are collectable in the ordinary course of business and each such
debt will realise in full its face value within three months of its due date for payment.
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(iii)
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The
debts owing to the Company shown in the Accounts (subject to any provision for bad and doubtful
debts made in the Accounts, as the case may be) were paid in full on their due dates or,
if any such debts are not yet due, each such debt is not now regarded by the Company or by
the Vendors as irrecoverable in whole or in part.
|
Particulars
of the balances on all the Company's bank accounts as at a date not more than seven days before the date of this Agreement have been
disclosed and the Company has no other bank accounts; since the date of such particulars there have been no payments out of any such
bank accounts except for routine payments and the aggregate balance on all such bank accounts is not substantially different from the
aggregate balance shown in such particulars.
20
In
relation to any Encumbrance to which any asset of the Company is subject and in relation to debentures, acceptance lines, overdrafts,
loans or other financial facilities outstanding or available to the Company:
|
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(i)
|
the
Vendor have disclosed full details of them and true and correct copies of all documents relating
to them; and
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(ii)
|
none
of the Vendor nor the Company has done anything whereby the continuance of any such encumbrance
or facility in full force and effect might be affected or prejudiced.
|
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(D)
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Options,
guarantees etc
|
The
Company is not responsible for the indebtedness of any other person, and in particular but without prejudice to the generality of the
foregoing is not a party to any option or pre-emption right or a party to any guarantee or suretyship or any other obligation (whatever
called) to pay, purchase or provide funds (whether by the advance of money, the purchase of or subscription for shares or other securities
or the purchase of assets or services or otherwise) for the payment of, or as an indemnity against the consequence of default in the
payment of, any indebtedness of any other person.
All
notices, returns and computations of the Company for the purposes of Taxation have been made punctually on a proper basis and are correct
and none of them is, or is likely to be, the subject of any dispute with any fiscal authority.
All
Taxation which the Company is liable to pay prior to Completion has been or will be so paid prior to Completion.
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(iii)
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Penalties
or interest on tax
|
The
Company has not paid or become liable to pay any penalty, fine or interest charged by virtue of the provisions of any Taxation statute,
law, rule or regulation.
|
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(iv)
|
Compliance
with tax collection obligations
|
|
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(a)
|
All
tax deductible and payable under any Taxation statute, law, rule or regulation has, so far
as is required to be deducted, been deducted from all payments made or treated as made by
the Company and all amounts due to be paid to all relevant Taxation authorities prior to
the date of this Agreement have been so paid.
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(b)
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All
payments by the Company to any person which ought to have been made under deduction of tax
have been so made and the Company (if required by law to do so) has accounted to the relevant
fiscal authority for the tax so deducted.
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(c)
|
Proper
records have been maintained in respect of all such deductions and payments and all applicable
regulations have been complied with.
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21
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(v)
|
No
back duty investigation
|
The
Company has not in the last year been the subject of a discovery, audit or investigation by any Taxation authority and there are no facts
which are likely to cause a discovery, audit or investigation to be made.
Full
provision or reserve has been made in the Accounts for all Taxation assessed or liable to be assessed on the Company or for which it
is accountable in respect of income, profits or gains earned, accrued or received on or before the Balance Sheet Date, including distributions
made down to such date or provided for in the Accounts, and proper provision has been made in the Accounts for deferred taxation in accordance
with internationally accepted accounting standards.
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(vii)
|
Anti-avoidance
provisions
|
The
Company has not entered into or been a party to any scheme or arrangement of which the main purpose, or one of the main purposes, was
the avoidance of or the reduction in liability to taxation.
|
|
(viii)
|
Calculation
of tax liability
|
The
Company has sufficient records to permit accurate calculation of the tax liability or relief which would arise upon a disposal or realisation
on completion of each asset owned by the Company at the Balance Sheet Date or acquired by the Company before Completion.
|
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(ix)
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Claims
and disclaimers
|
The
Company has duly submitted all claims and disclaimers the making of which has been assumed for the purposes of the Accounts.
|
|
(x)
|
Sales
at under-value or over-value
|
The
Company has not been a party to any sale or other disposal of an asset either at an under-value or an over-value.
|
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(i)
|
All
assets of the Company which are included in the Accounts or have otherwise been represented
as being the property of the Company or which were at the Balance Sheet Date used or held
for the purposes of its business were at the Balance Sheet Date in the absolute beneficial
ownership of the Company and (except for assets disposed of or realised by the Company in
the ordinary course of business) the Company is the absolute beneficial owner of and has
good, marketable title to all such assets and all such assets are in the possession and control
of the Company and are sited within Malaysia.
|
22
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(ii)
|
All
assets which have been acquired by the Company since the Balance Sheet Date are (except as
aforesaid) now in the absolute beneficial ownership of the Company and in the possession
and control of the Company and none is the subject of any encumbrance (excepting only liens
arising in the normal course of trading) nor has the Company created or agreed to create
any encumbrance or entered into any factoring arrangement, hire-purchase, conditional sale
or credit sale agreement which has not been disclosed and in respect of any such encumbrance,
arrangement or agreement so disclosed there has been no default by the Company in the performance
or observance of any of the provisions thereof.
|
The plant and machinery (including fixed plant and machinery) and all vehicles and office and other equipment and assets shown in the Accounts or acquired since the Balance Sheet Date or otherwise used in connection with the business of the Company which have not been disposed of in the ordinary course of business:
|
|
(i)
|
do
not contravene any requirement or restriction having the force of law;
|
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|
(ii)
|
performs
in accordance with its manufacturers specifications and are in good repair and condition
and are regularly maintained, fully serviceable and in good working order;
|
|
|
(iii)
|
are
each capable of doing the work for which they were designed and/or purchased and will each
be so capable (subject to fair wear and tear) during the period of time over which the value
of such assets will be written down to nil in the accounts of the Company;
|
|
|
(iv)
|
are
not surplus to the Company's requirements; and
|
|
|
(v)
|
are
not dangerous, inefficient, out-of-date, unsuitable or in need of renewal or replacement
and the vehicles owned by the Company are road-worthy and duly licensed for the purposes
for which they are used.
|
|
|
(vi)
|
maintenance
contracts are in full force and effect in respect of the computer and all other assets owned
or used by the Company which it is normal or prudent to have maintained by outside or specialist
contractors.
|
|
|
(i)
|
All
the assets of the Company which are of an insurable nature have at all material times been
and are at the date hereof fully insured to their full replacement value against fire and
other risks normally insured against by companies carrying on similar businesses or owning
property of a similar nature to those of the Company and the Company has at all material
times been and is at the date of this Agreement adequately covered against all legal liability
and risks normally insured against by such companies (including liability to employees or
third parties for personal injury or loss or damage to property, product liability and loss
of profit).
|
|
|
(ii)
|
Particulars
of all policies of insurance of the Company now in force have been disclosed and such particulars
are true and correct and all premiums due on such policies have been duly paid and all such
policies are valid and in force and (so far as the Company and the Vendor are aware) there
are no circumstances which might lead to any liability under such insurance being avoided
by the insurers or the premiums being increased and there is no claim outstanding under such
policy nor are the Company and the Vendor aware of any circumstances likely to give rise
to a claim or cause an application for renewal of such policy to be refused.
|
|
|
(iii)
|
No
insurance company has refused to insure the Property assets or risks of the Company or has
imposed conditions (by way of increased premiums or otherwise) for such insurance.
|
23
The
Company has not acquired or agreed to acquire any material asset on terms that title to such asset does not pass to the Company until
full payment is made.
Rentals
payable by the Company under any leasing, hire-purchase or other similar agreement to which it is a party have not been and are not likely
to be increased and all such rentals are fully deductible by the Company for tax purposes.
|
|
(A)
|
Licences,
permits, consents and authorities
|
The
Company has all necessary licences (including statutory licences), permits, consents and authorities (public and private) for the proper
and effective carrying on of its business and in the manner in which such business is now carried on and all such licences, permits,
consents and authorities are valid and subsisting and the Company knows of no reason why any of them should be suspended, cancelled or
revoked whether in connection with the acquisition of the Sale Shares by the Purchaser or otherwise and so far as the Company is aware
there are no factors that might in any way prejudice the continuance or renewal of any of those licences, permits, consents or authorities
and the Company is not restricted by contract from carrying on any activity in any part of the world.
|
|
(B)
|
Litigation
and arbitration
|
|
|
(i)
|
Save
as plaintiff in the collection of debts (not exceeding RMB 50,000 (or its equivalent in any
other currency) in the aggregate) arising in the ordinary course of business, the Company
is not now engaged in any litigation or arbitration proceedings and there are no lawsuits
or arbitration proceedings pending or threatened by or against the Company or any person
for whose acts or defaults the Company may be vicariously liable.
|
|
|
(ii)
|
No
injunction has been granted against the Company.
|
|
|
(iii)
|
The
Company is not subject to any order or judgment given by any court or governmental agency
which is still in force.
|
|
|
(iv)
|
The
Company has not given any undertaking to any court or to any third party arising out of any
legal proceedings.
|
|
|
(v)
|
There
is no matter or fact in existence which might give rise to any legal proceedings or arbitration
involving the Company including any which might form the basis of any criminal prosecution
against the Company.
|
|
|
(vi)
|
No
current director, officer or employee of the Company has had a bankruptcy petition presented
against him, is party to any arrangement or compromise under any insolvency legislation,
or has been disqualified from acting as a director of a company for any period or has been
convicted of or is at present or has been charged with and not acquitted of any criminal
offence (other than traffic offences the subject of a fixed penalty fine).
|
|
|
(vii)
|
No
governmental or other investigation or inquiry is in progress or threatened in respect of
the Company or its business and there are no circumstances likely to lead to any of the same.
|
24
There
are in force no powers of attorney given by the Company nor any other authority (express, implied or ostensible) given by the Company
to any person to enter into any contract or commitment or do anything on its behalf other than any authority of employees to enter into
routine trading contracts in the normal course of their duties.
No
disclosure has been made of any of the confidential information, including financial or trade secrets, of the Company save in the ordinary
course of business of the Company and the Company has taken adequate steps to preserve the confidential nature of all such information.
The
Company does not use on its letterhead, books or vehicles or otherwise carry on its business under any name other than its corporate
name.
|
|
(F)
|
Records
of the Company
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(i)
|
All
the accounting records, statutory and other books and records (including the register of
members), and other deeds documents records, data and information of the Company and its
pension and benefit schemes (if any) are, and have since its incorporation been, kept up
to date, properly, accurately and consistently completed and are a complete and accurate
record of all acts and transactions of the Company and of all matters required by law or
best business practice to be recorded or registered therein; the Company has not received
any application or request for rectification of any such registers are in the possession
of the Company.
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(ii)
|
The
Company does not have any of its records, systems, controls, data or information recorded,
stored, maintained, operated or otherwise wholly or partly dependent on or held by any means
(including any electronic, mechanical or photographic process whether computerised or not)
which (including all means of access thereto and therefrom) are not under the exclusive ownership
and direct control of the Company.
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(G)
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Winding
up, insolvency and receivership
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(i)
|
No
order has been made or petition presented or resolution passed for the winding up of the
Company and no distress, execution or other process has been levied on any of its assets.
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(ii)
|
The
Company has not stopped payment and is not insolvent nor unable to pay its debts as they
fall due.
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(iii)
|
No
administrative or other receiver has been appointed by any person of the business or assets
of the Company or any part thereof, nor has any order been made or petition presented for
the appointment of an administrator in respect of the Company.
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|
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(iv)
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There
has been no delay by the Company in the payment of any material obligation due for payment.
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25
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(H)
|
Guarantees,
warranties and sureties
|
No
person other than the Company or a Subsidiary has given any guarantee of or security for any overdraft, loan or loan facility granted
to the Company.
All
title deeds and other documents required to show title to the assets of the Company (duly stamped where necessary) and all other documents
and agreements to which the Company is a party and all other documents, records and correspondence of the Business owned by, or which
ought to be in the possession of, the Company are in the possession of the Company.
There
are no long term contracts (i.e. contracts not terminable by the Company without penalty on six months' notice or less) or onerous or
unusual or abnormal contracts (i.e. contracts for capital commitments or contracts differing from those necessitated by the ordinary
course of business) binding upon the Company, nor is the Company a party to any contract which contains any onerous or other provision
material for disclosure to an intending purchaser of the Sale Shares and no expenses or liabilities of a material amount have been incurred
before the date of this Agreement by the Company otherwise than for the purpose of the Company's business.
Copies
of all material contracts to which the Company is a party have been disclosed or will be disclosed to the Purchaser during the due diligence
to be conducted by the Purchaser pursuant to clause 3.3 of the Agreement and, save as those disclosed, the Company is not a party to
or subject to any agreement, transaction, obligation, commitment, understanding, arrangement or liability which:
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(i)
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is
incapable of complete performance in accordance with its terms within six months after the
date on which it was entered into or undertaken;
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(ii)
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is
known by any of the Vendor to be likely to be unprofitable or result in a loss to the Company
on completion of performance;
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(iii)
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cannot
readily be fulfilled or performed by the Company on time and without undue or unusual expenditure
of money and effort;
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(iv)
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involves
or is likely to involve obligations, restrictions, expenditure or receipts of an unusual,
onerous or exceptional nature and not in the ordinary course of business;
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(v)
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requires
an aggregate consideration payable by the Company in excess of RM50,000 (or its equivalent
in any other currency);
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(vi)
|
is
a contract for services (other than contracts for the supply of electricity or normal office
services);
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(vii)
|
requires
the Company to pay any commission, finder's fee, royalty or the like; or
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(viii)
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is
in any way otherwise than in the ordinary and proper course of the Company's business.
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26
|
|
(C)
|
Performance
of contracts
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|
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(i)
|
The
terms of all contracts of the Company have been complied with by the Company and by the other
parties to the contracts in all respects and there are no circumstances likely to give rise
to a default by the Company or by the other parties under any such contract.
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(ii)
|
All
the contracts of the Company except those between the Company and its employees are assignable
by the Company without the consent of any other party.
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|
(iii)
|
There
are no outstanding claims, separately or in the aggregate of material amounts, against the
Company on the part of customers or other parties in respect of defects in quality or delays
in delivery or completion of contracts or deficiencies of design or performance or otherwise
relating to liability for goods or services sold or supplied by the Company and no such claims
are threatened or anticipated and there is no matter or fact in existence in relation to
goods or services currently sold or supplied by the Company which might give rise to the
same.
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|
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(iv)
|
The
Company has no knowledge of the invalidity of or grounds for rescission, avoidance or repudiation
of any agreement or other transaction to which the Company is a party and has received no
notice of any intention to terminate, repudiate or disclaim any such agreement or other transaction.
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|
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(D)
|
Restrictive
contracts
|
There
are no agreements in force restricting the freedom of the Company to provide and take goods and services by such means and from and to
such persons as it may from time to time think fit.
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|
(E)
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Agency
and distributorship agreements
|
The
Company is not a party to any subsisting agency or distributorship agreement.
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(A)
|
Particulars
of employees
|
The
particulars to be disclosed to the Purchaser during the due diligence to be conducted by the Purchaser are true and complete and show
in respect of each director, officer and employee of the Company his date of birth, the date on which he commenced employment with the
Company and all remuneration payable and other benefits provided or which the Company is bound to provide (whether now or in the future)
to each such person and include full particulars of all remuneration arrangements (particularly profit sharing, incentive and bonus arrangements
to which the Company is a party whether binding or not) and each director, officer and employee of the Company is listed therein.
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|
(B)
|
Service
contracts etc.
|
|
|
(i)
|
There
is no contract of service in force between the Company and any of its directors, officers
or employees which is not terminable by the Company without compensation on one month's notice
given at any time.
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|
|
(ii)
|
There
are no consultancy or management services agreements in existence between the Company and
any other person, firm or company.
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|
|
(iii)
|
There
are no agreements or other arrangements (binding or otherwise) between the Company or any
employers' or trade association of which the Company is a member and any trades union or
other body or organisation representing its employees.
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27
|
|
(i)
|
Compliance
with contractual obligations
|
There
are no amounts owing to present or former directors, officers or employees of the Company other than not more than one month's arrears
of remuneration accrued or due or for reimbursement of business expenses incurred within a period of three months preceding the date
hereof.
|
|
(ii)
|
Obligations
provided for in the Accounts
|
Save
to the extent (if any) to which provision or allowance has been made in the Accounts, the Company has not made or agreed to make any
payment to or provided or agreed to provide any benefit for any present or former director, officer or employee of the Company nor any
dependent of any present or former director, officer or employee of the Company.
Save
as disclosed, no moneys or benefits other than in respect of remuneration or emoluments of employment are payable to or for the benefit
of any present or former director, officer or employee of the Company.
|
|
(D)
|
Liabilities
and payments
|
Save
to the extent (if any) to which provision or allowance has been made in the Accounts:
|
|
(i)
|
no
liability has been incurred or is anticipated by the Company for breach of any contract of
employment or for services or for severance payments or for redundancy payments or protective
awards or for compensation for unfair dismissal or for failure to comply with any order for
the reinstatement or re-engagement of any employee or for any other liability accruing from
the termination or variation of any contract of employment or for services; and
|
|
|
(ii)
|
no
gratuitous payment has been made or promised by the Company in connection with the actual
or proposed termination or suspension of employment or variation of any contract of employment
or for services of any present or former director, officer or employee of the Company.
|
|
|
(i)
|
Statutory
compliance etc.
|
The
Company has in relation to each of its employees (and so far as relevant to each of its former employees) complied with:
|
|
(a)
|
all
obligations imposed on it by all relevant statutes, regulations and codes of conduct and
practice affecting its employment of any persons and all relevant orders and awards made
thereunder and has maintained current, adequate and suitable records regarding the service,
terms and conditions of employment of each of its employees; and
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|
|
(b)
|
all
collective agreements, recognition agreements and customs and practices for the time being
affecting its employees or their conditions of service.
|
28
The
Company has not been served with any improvement and/or prohibition notices pursuant to any applicable employment or health and safety
laws, rules and/or regulations and is not in breach of any provisions of any of the foregoing.
|
|
(iii)
|
Claims
by employees
|
There
is no liability or claim against the Company from any employee or former employee outstanding or anticipated.
Within
a period of one year preceding the date of this Agreement the Company has not given notice of any redundancies.
|
|
(G)
|
Termination
of employment
|
No
present director, officer or employee of the Company has given or received notice terminating his employment except as expressly contemplated
under this Agreement and Completion of this Agreement will not trigger any "golden parachute" agreement.
|
|
(H)
|
Share
and other schemes
|
The
Company does not have in existence nor is it proposing to introduce:
|
|
(i)
|
any
employee share trust, share incentive scheme, share option scheme or profit sharing scheme
for the benefit of all or any of its directors, officers or employees; or
|
|
|
(ii)
|
any
scheme whereunder any director, officer or employee of the Company is entitled to a commission
or remuneration of any other sort calculated by reference to the whole or part of the turnover,
profits or sales of the Company.
|
|
|
(i)
|
No
dispute exists or can reasonably be anticipated between the Company and a material number
or category of its employees and so far as the Vendor are aware there are no wage or other
claims outstanding against the Company by any person who is now or has been a director, officer
or employee of the Company.
|
|
|
(ii)
|
The
Company has not had during the last three years any strike, work stoppages, slow-down, work-to-rule
or lock-out by its employees, nor, so far as the Vendor are aware, is any anticipated.
|
29
|
|
15.
|
INTELLECTUAL
PROPERTY
|
Full
particulars of all Intellectual Property owned or otherwise exploited or used by the Company in any part of the world will be disclosed
to the Purchaser during the due diligence to be conducted by the Purchaser. All Intellectual Property exploited or used by the Company
is in the absolute beneficial ownership of the Company or the Company is a 1icensee of the same pursuant to an Intellectual Property
Agreement and the Company does not own, use, exploit or have any other interest in any Intellectual Property which has not been disclosed.
In particular but without prejudice to the generality of the foregoing, none of the Intellectual Property disclosed is jointly owned
by the Company and a third party.
All
applications for any Intellectual Property owned, used or otherwise exploited by the Company are being diligently prosecuted; patents,
registered trademarks and registered designs and other similar registered or recorded Intellectual Property rights owned, used or otherwise
exploited by the Company have been maintained; nothing has been done to diminish or otherwise affect the reputation of unregistered trademarks,
trade names, brand names or get up owned, used or otherwise exploited by the Company; no copying or reproduction of the copyright material
owned, used or otherwise exploited by the Company has been permitted (expressly or by implication); the Technical Information and other
knowhow owned, used or otherwise exploited by the Company has been kept confidential; and (where applicable) all application, registration
and renewal fees necessary to procure, register, record or maintain the Intellectual Property have been paid.
|
|
(iii)
|
Intellectual
Property Agreements
|
All
Intellectual Property Agreements have been disclosed and are valid and binding; none has been the subject of any breach or default by
any party thereto or of any event which with notice or lapse of time or both would constitute a default; nor are there any disputes,
claims or proceedings arising out of or relating to the Intellectual Property Agreements. The Company has not authorised or otherwise
permitted, expressly or by implication, any use whatsoever of the Intellectual Property owned, used or otherwise exploited by the Company
save insofar as any such authority is contained in the appropriate Intellectual Property Agreements. The Company does not use or otherwise
exploit any Intellectual Property belonging to a third party save insofar as it is licensed to do so in the appropriate Intellectual
Property Agreements. All such agreements have been duly recorded or registered with the proper authorities whenever a requirement to
do so exists.
30
IN
WITNESS whereof this Agreement has been duly executed by all parties hereto the day and year first above written.
|
SIGNED
by
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|
)
|
|
|
|
Linlin
GAO
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|
)
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|
/s/ Linlin Gao
|
|
in
the presence of:
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|
)
|
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|
SIGNED
by
|
|
)
|
|
|
|
Hua
BI
|
|
)
|
|
/s/ Hua Bi
|
|
in
the presence of:
|
|
)
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|
SIGNED
by
|
|
)
|
|
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|
Lulu
GONG
|
|
)
|
|
/s/ Lulu Gong
|
|
in
the presence of:
|
|
)
|
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SIGNED
by
|
|
)
|
|
|
|
Chun
LIU
|
|
)
|
|
/s/ Chun Liu
|
|
in
the presence of:
|
|
)
|
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|
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|
SIGNED
by
|
|
)
|
|
|
|
for
and on behalf of
|
|
)
|
|
|
|
Magnum
International Holdings Limited
|
|
)
|
|
/s/ Linlin Gao
|
|
in
the presence of:
|
|
)
|
|
|
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|
|
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SIGNED
by
|
|
)
|
|
|
|
for
and on behalf of
|
|
)
|
|
|
|
Integrated
Media Technology Limited
|
|
)
|
|
/s/ Xiaodong Zhang
|
|
in
the presence of:
|
|
)
|
|
|
31
