UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): November 20, 2019
SHARING ECONOMY INTERNATIONAL INC.
(Exact name of registrant as specified in Charter)
Nevada | 001-34591 | 90-0648920 | ||
(State or other jurisdiction of incorporation or organization) |
(Commission File No.) |
(IRS Employee Identification No.) |
No. 9 Yanyu Middle Road
Qianzhou Village, Huishan District, Wuxi City
Jiangsu Province, People’s Republic of China
(Address of Principal Executive Offices)
(86) 51083397559
(Registrant’s Telephone number)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12(b) under the Exchange Act (17 CFR 240.14a-12(b)) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
Common Stock | SEII | The OTC |
Item 1.01. Entry into a Material Definitive Agreement.
On November 20, 2019, EC Advertising Limited and Au Chi Tong entered into a Consulting Agreement, whereby Sharing Economy International, Inc. (the “Company”) shall issue 400,000 shares of common stock to the consultant in exchange for consulting services offered to the Company and its subsidiaries. The foregoing description of the Consulting Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the Agreement, which is incorporated herein by reference and attached hereto as Exhibit 10.1.
On December 14, 2019, ECoin Global Limited and EC Power (Global) Technology Limited entered into a Transfer Agreement relating to the transfer of redemption codes in exchange for 2,757,353 shares of common stock of the Company. The foregoing description of the Transfer Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the Agreement, which is incorporated herein by reference and attached hereto as Exhibit 10.2.
On December 18, 2019, Ying Huihao and EC Advertising Limited entered into a Sale and Purchase Agreement with respect to G-Coin Worldwide Limited (“G-Coin”), whereby the Company shall issue 3,425,328 shares of common stock in exchange for two vessels owned by G-Coin. The foregoing description of the Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the Agreement, which is incorporated herein by reference and attached hereto as Exhibit 10.3.
Item 3.02 Unregistered Sale of Equity Securities.
The disclosure set forth in Item 1.01 is incorporated by reference into this Item 3.02. The shares to be issued in connection with the transactions shall be issued pursuant to an exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), pursuant Section 4(a)(2) of the Securities Act and Regulation S promulgated thereunder.
Item 9.01. Financial Statements and Exhibits.
(d) | Exhibits |
Exhibit No. | Description | |
10.1 | Consultancy Agreement, dated November 20, 2019 | |
10.2 | Transfer Agreement, dated December 14, 2019 | |
10.3 | Sale and Purchase Agreement, dated December 18, 2019 |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: December 26, 2019 | Sharing Economy International Inc. | |
By: | /s/ Jianhua Wu | |
Jianhua Wu | ||
Chief Executive Officer |
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Exhibit 10.1
DATE: 20 November 2019
(1) EC ADVERTISING LIMITED
and
(2) AU CHI TONG
CONSULTANCY AGREEMENT
THIS AGREEMENT dated 20 November 2019
BETWEEN:
(1) | EC ADVERTISING LIMITED, a company incorporated under the laws of Hong Kong (“Company”), whose address is Room 1A, 14/F., Chun Wo Commercial Centre, 23-29 Wing Wo Street, Central, Hong Kong; and |
(2) | AU CHI TONG, whose Hong Kong Identity Card number is D208783(A) and address is Flat E, 40/F, Block 3, Island Resort, Siu Sai Wan, Hong Kong (“Consultant”). |
WHEREAS
(A) | The Consultant wishes to provide consultancy services to Sharing Economy International Inc., a company organized and existing under the laws of the state of Nevada in the United States of America (“SEII”), and its subsidiaries (together, “Group”) for a period of one year in such terms and conditions hereinafter appearing. |
(B) | The Company, as a wholly owned subsidiary of SEII, wishes to appoint the Consultant for Services (as defined in Clause 1.1 below) in such terms and conditions hereinafter appearing. |
IT IS HEREBY AGREED that:
1. | Services |
1.1 | The Company hereby appoints the Consultant to provide the following services (“Services”): |
(i) | to formulate the Group’s advertising and promotion strategy and plan; |
(ii) | to identify targets for the Group’s merger and acquisition initiatives or projects and to ensure success in such initiatives and projects and other commercial transactions of the Group; |
(iii) | to build a profitable advertising business within the Group; |
(iv) | to handle or assist in ad hoc projects as reasonably requested by the Group; |
(v) | to achieve a sales revenue of HK$120,000,000 by the end of 2020; and |
(vi) | to achieve a sales revenue of HK$120,000,000 within year 2021 |
1.2 | The Consultant shall report to the Vice President, Strategic Business Development of SEII (or such other person as shall be agreed between both parties). |
1.3 | The Consultant’s working title will be the chief executive office of the Company. |
1.4 | The Consultant shall perform the Services in Hong Kong. If the Company requires the Consultant to perform the Services outside Hong Kong, the Company shall obtain the Consultant’s prior written consent and shall reimburse all the expenses incurred by the Consultant for and in relation to provision of the Services outside Hong Kong. |
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2. | Fee |
2.1 | Subject to Clause 4.3, the fee for the Services to be provided for the Tenure defined in Clause 4.1 shall be paid by the Company causing SEII to issue to the Consultant a total of 400,000 ordinary shares of SEII at a par value of US$0.001 each (“Shares”) as more fully described below: |
- within 30 days from the date of this Agreement (or such longer period as shall be required to fulfil the requirements under the relevant laws, regulations and rules in the United States of America for the issue of the Shares), provided that this Agreement is not terminated prior to any of the issuances of Shares above.
2.2 | The Consultant acknowledges that none of the Shares may be offered or sold except pursuant to an effective registration statement under the Securities Act of 1933 of the United States of America (“Securities Act”), or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. |
2.3 | The Consultant has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks in the Shares, and has the ability to bear the economic risks of its investment decision and can afford the complete loss of such investment in the Shares. |
2.4 | The Company shall pay all the costs incurred in connection with removal of the restrictive and other legends on the certificates (or restrictions on transfer) of all the Shares issued to the Consultant, applying for and obtaining an effective registration statement for all such Shares, delivery and transmission of the certificates without restrictive and other legends (or of the registered Shares) to the Consultant’s broker, and all such other actions and things required to enable all such Shares to be tradeable in the Over-the-Counter Markets or such other stock exchange in the United States of America. |
3. | Expenses |
The Company shall reimburse the Consultant forthwith for all proper and reasonable expenses actually incurred, with the prior approval of the Vice President, Strategic Business Development of SEII, by the Consultant in the performance of his duties upon presentation of supporting statements, receipts or vouchers. The Company shall make the reimbursement not later than the 7th day of the month immediately after the supporting statements, receipts or vouchers are presented to the Company.
4. | Tenure |
4.1 | This Agreement commences on 20 November 2019 (“Commencement Date”) and shall expire on 19 November 2021 (or such later date as shall be agreed between both parties in writing) (“Expiry Date”). In this Agreement, “Tenure” means the period from the Commencement Date to the Expiry Date (inclusive of both dates). |
4.2 | Any party may terminate this Agreement before the Expiry Date by giving not less than one month notice in writing to the other party, without prejudice to any right of the parties accrued before such notice of termination. |
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4.3 | If this Agreement is terminated before the end of the Tenure, the Consultant shall be entitled to such number of Shares pro-rated for the duration during which he provides Services, and the remaining Shares issued to the Consultant shall be forfeited to the Company, or the Consultant shall pay the Company a sum equal to the value of the remaining Shares at the Issue Price, as of the effective date of such termination of the Agreement. |
4.4 | Clauses 6, 7, 8, 9, 13 and 15 shall continue in force after the Expiry Date or termination of this Agreement, as the case may be. |
5. | Independent Contractor |
The Company and the Consultant declare and agree that the Consultant shall act as an independent contractor in the performance of its duties under this Agreement. Nothing in this Agreement creates a joint venture, partnership, or the relationship of principal and agent, or employee and employer between the Company and the Consultant.
6. | Non-Competition |
6.1 | The Consultant covenants and agrees not to consult or provide any services in any manner or capacity to a direct competitor of SEII or any of its subsidiaries during the duration of this Agreement unless express written authorization to do so is given by the Vice President, Strategic Business Development of SEII. A direct competitor of SEII or any of its subsidiaries for purposes of this Agreement is defined as any individual, partnership, corporation, and/or other business entity that engages in any of the businesses of SEII or any of its subsidiaries. |
6.2 | The Consultant shall not attempt in any way to solicit instructions, either in his own right or on behalf of others, from any client, investor or partner of SEII or any of its subsidiaries in respect of projects or jobs being handled by SEII or any of its subsidiaries, or in respect of which SEII or any of its subsidiaries is pursuing instructions, during the duration of this Agreement. |
6.3 | The restrictions under Clauses 6.1 and 6.2 shall continue to apply for a period of one year after the termination of this Agreement. |
7. | Intellectual property |
7.1 | The Consultant shall give the Company full written details of all Inventions and of all works embodying Intellectual Property Rights made wholly or partially by him at any time during the Tenure. The Consultant acknowledges that all Intellectual Property Rights subsisting (or which may in the future subsist) in all such Inventions and works shall automatically, on creation, vest in the Group absolutely. To the extent that they do not vest automatically, the Consultant holds them on trust for the Group. The Consultant agrees promptly to execute all documents and do all acts as may, in the opinion of the Company, be necessary to give effect to this Clause 7.1. |
7.2 | The Consultant hereby irrevocably waives all moral rights (and all similar rights in any jurisdiction) which he has or will have in any existing or future works referred to in Clause 7.1. |
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7.3 | The Consultant irrevocably appoints the Company to be his attorney in his name and on his behalf to execute documents, use the Consultant’s name and do all things which are necessary or desirable for the Group to obtain for itself or its nominee the full benefit of this Clause 7. A certificate in writing, signed by any director or the secretary of the Company, that any instrument or act falls within the authority conferred by this Agreement shall be conclusive evidence that such is the case so far as any third party is concerned. |
7.4 | The following definitions apply to Clauses 7 and 8: |
Confidential Information: information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to the business, products, affairs and finances of the Group for the time being confidential to the Group and trade secrets including, without limitation, technical data and know-how relating to the business of the Group or any of its business contacts.
Intellectual Property Rights: patents, rights to Inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Invention: any invention, idea, discovery, development, improvement or innovation, whether or not patentable or capable of registration, and whether or not recorded in any medium.
8. | Confidentiality |
8.1 | The Consultant agrees that, unless he has the prior written consent of the Company, he will: |
(i) | keep confidential at all times the Confidential Information of the Group; and |
(ii) | ensure that any personnel or professional advisor to whom the Consultant discloses the Group’s Confidential Information is aware of, and comply with, the provisions of this Clause 8.1. |
8.2 | The obligations of confidentiality in Clause 8.1 do not apply to any disclosure: |
(i) | for the purpose of performing the Agreement; |
(ii) | required by law (including under the rules of any stock exchange); or |
(iii) | of Confidential Information which: |
(a) | is publicly available through no fault of the Consultant or his personnel; or |
(b) | was rightfully received from a third party without restriction or without breach of the Agreement. |
8.3 | Except to the extent that the Consultant has ongoing rights to use Confidential Information, the Consultant must, at the request of the other party following the expiry or termination of the Agreement, promptly return to the Company or destroy all Confidential Information of the Group in the Consultant’s possession or control. |
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9. | Construction |
In this Agreement, unless the context otherwise requires:
(i) | words and defined terms expressed in the singular number shall include the plural and vice versa, and words expressed in the masculine shall include the feminine and neuter gender and vice versa; |
(ii) | the term “including” shall be interpreted to mean “including (without limitation)” whenever such term appears in this Agreement (and the terms “include” and “includes” shall be similarly interpreted); |
(iii) | the words “hereof”, “herein”, “hereto” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement; and |
(iv) | the recital and the schedule, if relevant, are part of this Agreement and shall have effect accordingly. |
10. | Entire agreement |
This Agreement constitutes the entire agreement and understanding between the parties to this Agreement and supersedes all previous agreements and understandings (if any and whether in writing or not) between the parties in relation to the matters contemplated by this Agreement.
11. | Waiver |
11.1 | The rights of a party may be waived by such party only in writing and, specifically, the conduct of any one of the parties shall not be deemed a waiver of any of its rights pursuant to this Agreement and/or a waiver or consent on its part as to any breach or failure to meet any of the terms of this Agreement or an amendment hereto. A waiver by a party in respect of a breach by the other party of its obligations shall not be construed as a justification or excuse for a further breach of its obligations. |
11.2 | No delay or omission to exercise any right, power, or remedy accruing to any party upon any breach or default by the other under this Agreement shall impair any such right or remedy nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein or in any similar breach or default thereafter occurring. |
12. | Severance |
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
13. | Notices |
13.1 | Any notice or certificate required to be given by the Company to the Consultant or by the Consultant to the Company shall be in writing giving it shall be sufficiently given or served if delivered to the address and attention of the other party set out in Clause 13.3 or as otherwise notified from time to time hereunder with specific reference to this Agreement. All notices under this Agreement shall be in the English language. |
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13.2 | Any notice delivered personally shall be deemed to have been given at the time of such delivery. Any notice despatched by letter postage prepaid shall be deemed to have been given two (2) Business Days after posting. Any notice sent by e-mail shall be deemed to have been given upon the receipt of the sent confirmation by the e-mail account of the sender. |
13.3 | The initial addresses and e-mail addresses of the Company and the Consultant for the purpose of Clause 13.1 are as follows:- |
To the Company: | M03, Room 302, 3/F, Eton Tower | |
No.8 Hyson Avenue, Causeway Bay, Hong Kong Email: parkson.yip@seii.com | ||
Attention: Mr Parkson Yip | ||
To the Consultant: | Flat E, 40/F, Block 3, Island Resort Siu Sai Wan | |
Hong Kong | ||
Email: oubryan@126.com Attention: Au Chi Tong |
13.4 | Either party may change its address (or other details) to which notices can be sent to it by giving written notice of such change of address (or details) to the other party with specific reference to this Agreement and in the manner herein provided for giving notice. |
14. | Assignment |
Neither party shall have the right to assign or transfer any of its rights hereunder.
15. | Laws and Arbitration |
15.1 | This Agreement shall be interpreted and governed by the laws of the Hong Kong Special Administrative Region. |
15.2 | Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre under the Hong Kong International Arbitration Centre Administered Arbitration rules in force when the Notice of Arbitration is submitted. The seat of arbitration shall be in Hong Kong. The number of arbitrators shall be three: one arbitrator shall be chosen by each party to the dispute and those two arbitrators shall choose the third arbitrator. The arbitration proceedings shall be conducted in English. |
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IN WITNESS WHEREOF the Company and the Consultant agree to the terms hereof.
For and on behalf of | ) | ||
the Company | ) | ||
and signed by Carmen Lam, | ) | ||
Director | ) | /s/ Carmen Lam |
Signed by | ) | ||
the Consultant, Au Chi Tong | ) | /s/ Au Chi Tong |
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Exhibit 10.2
Date: 14 December 2019
ECOIN GLOBAL LIMITED
(as Seller)
and
EC POWER (GLOBAL) TECHNOLOGY LIMITED
(as Buyer)
TRANSFER AGREEMENT
relating to
a Transfer of Redemption Codes
TABLE OF CONTENTS
THIS AGREEMENT is entered into on 14 December 2019 between:
1. | ECoin Global Limited, a company incorporated in Hong Kong, with its registered address at Cornwall Centre, No 85 Castle Peak Road, Coffee Bay, Tuen Mun, N.T., Hong Kong (hereinafter, the “Seller”); and |
2. | EC Power (Global) Technology Limited, a company incorporated in the British Virgin Islands, with its registered address at Corporate Registrations Limited, Sea Meadow House, Blackburne Highway, P.O. Box 116, Road Town, Tortola, British Virgin Islands (hereinafter, “Buyer”). |
Recitals:
(A) | The Seller produces and markets Ecoin Redemption Codes (“Codes”), which can be produced and marketed by Buyer in Buyer’s name, both online and offline. |
(B) | Each Code contains a value which enables subscribers to upload certain number of items onto the Buyer’s website, www.ecrent.com for rental. |
(C) | The Seller agrees to sell, and the Buyer agrees to buy, the Codes in accordance with the terms and conditions set forth in this Agreement. |
Therefore, the parties hereto have entered into the agreement as follows:
1. | DEFINITIONS AND INTERPRETATION |
1.1 | Unless otherwise specified herein, the following words and terms shall have the following meaning when used in this Agreement, the Recitals and the Schedule hereto: |
“affiliates” | has the meaning ascribed to it in the Company Law; | |
“Agreement” | is a reference to this Agreement and any amendments or supplements hereto (if applicable); | |
“Business Day” | means a day (other than a Saturday or Sunday) on which banks in Hong Kong are open for ordinary banking business; | |
“China” | the People’ s Republic of China, excluding, for the purpose of this Agreement, Hong Kong, Macau Special Administration Region and Taiwan; | |
“Closing” | the completion of the sale and purchase of the Redemption; | |
“Closing Date” | the date of this Agreement or any other date agreed to in writing between Buyer and Seller; |
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“Company” | Sharing Economy International, Inc., a Nevada corporation, (OTC : SEII), No.9 Yanyu Middle Road, Qianzhou Town, Huishan District, Wuxi City, Jiangsu Province, China; | |
“Company Law” | the Companies Ordinance (Cap 622) of Hong Kong; | |
“Encumbrances” |
asset transfer, claim, third party rights or interest under any mortgage, pledge, liability, lien, guarantee or other encumbrances, guarantee interest or other guarantee agreement, arrangement or any other form of rights or interest, regardless whether or not relating to current or future assets, liabilities of any individual or entity under such guarantee; | |
“Hong Kong” | the Hong Kong Special Administration Region of the People’s Republic of China; | |
“Redemption Codes” and “Codes” |
EC Coin’s Redemption Codes, with aggregate value of US$ l ,500,000; | |
“Transfer Consideration” | a total consideration of US$750,000 payable for the purchase of Redemption Codes and all associated rights and interests in accordance with Clause 3.1; | |
“US Dollar” and “US$” | the lawful currency of the United States of America; and | |
“Working Hours” | means 9:30 a.m. to 5:30 p.m. on a Business Day. |
1.2 | The provisions of law referenced herein shall be interpreted as such as amended, re-formulated from time to time or as such the applicability of which has been modified by other provisions of law, including re-formulated provisions (regardless of any modification). |
1.3 | The clauses and schedule referenced herein shall mean the clauses and schedule of this Agreement; the sub-clauses referenced herein shall mean such under the relevant clauses when referenced (unless otherwise specified in context). The schedule hereto shall be considered to be the component part of this Agreement. |
1.4 | Headings are provided for reference only and shall in no way affect the interpretation of this Agreement. |
1.5 | In this Agreement, all the names and terms used in the singular case include the plural and vice versa; all the names and terms with gender reference include all genders, and all persons referenced include incorporated persons and non-incorporated persons. |
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2. | SALE AND PURCHASE OF REDEMPTION CODES |
2.1 | Subject to the terms and conditions herein, on the Closing Date, the Seller shall sell and transfer to the Buyer, and the Buyer, in reliance on the representations and warranties made and provided by the Seller herein, agrees to buy and accept, the Codes. |
2.2 | The Seller warrants that, at the time of transferring the Codes, no Encumbrances nor any current rights as of the date of execution of this Agreement or any subordinate or incidental rights thereafter exist on or in relation to the Codes. |
2.3 | The Buyer may, at the time of transferring the Codes, designate its subsidiary or affiliate to receive the Codes and pay the Transfer Consideration. |
2.4 | The portion of revenue sharing permitted by the Buyer to marketing channel partners shall not exceed 40% of the face value of the Codes, with a minimum of 60% of sales income to accrue to Buyer. |
3. | TRANSFER CONSIDERATION OF THE REDEMPTION CODES |
3.1 | The parties hereto acknowledge and agree that the Codes to be transferred have a value of US$1,500,000 and Seller has agreed to transfer the same at a discounted price to Buyer at 50% of the face value of the Codes, namely, for a total consideration of US$750,000 (the “Transfer Consideration”). The Transfer Consideration shall be paid by the Buyer as provided in Clause 4 below. |
3.2 | The Seller warrants that the Codes have a validity period of five (5) years, and will not expire until 31 December 2024 (the “Expiry Date”). |
3.3 | The Seller undertakes to deliver the Codes not later than three (3) business day following notice from the Buyer requesting delivery. |
4. | PAYMENT OF TRANSFER CONSIDERATION |
4.1 | The Transfer Consideration shall be paid by the Buyer to the Seller in common shares of the Company within 5 working days of contract signed, which is US$0.272 per share. |
4.2 | The number of Shares to be issued to Seller is 2,757,353. |
4.3 | For the purposes of this Clause 4: |
4.3.1 | “Shares” means ordinary shares of par value US$0.001 each of the Company as at the Expiry Date or shares of any class or classes resulting from any subdivision, consolidation or re-classification of those shares, which as between themselves have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation or dissolution of the Company. |
4.3.2 | “Trading Day” generally means a day during which (i) trading in the Company’s common stock generally occurs on the principal U.S. national or regional securities exchange or market on which the Company’s common stock is listed or admitted for trading and (ii) there is no market disruption event. |
4.4 | If for any reason the Buyer is unable to procure the issue or delivery of Shares as expressly provided for under this Clause 4, the Buyer shall promptly notify the Seller and instead pay the Relevant Balance to the Seller in clear funds in accordance with Clause 4.3. |
5. | REPRESENTATIONS AND WARRANTIES |
5.1 | The Buyer hereby unconditionally and irrevocably represents and warrants to the Seller that: |
5.1.1 | the Buyer’s execution of this Agreement and its exercise and performance of its rights and obligations hereunder in accordance with the provisions herein will not violate: |
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(i) | any law or statues to which it must adhere; or |
(ii) | any instrument or organization charter or documents on which its incorporation was based or which regulate its business or affairs; or |
(iii) | any document or agreement to which the Buyer is a party or any agreement by which the Buyer or its assets are bound; |
5.1.2 | the Buyer is a legal and existing limited liability company incorporated in accordance with the law of the place of its registration and has the full capacity and authority to execute this Agreement, and to exercise its right and to perform its obligations in accordance with this Agreement; this Agreement constitutes a valid document binding to, and enforceable against, Buyer; and |
5.1.3 | the Buyer’s execution of this Agreement, and performance and completion of the transaction contemplated herein does not require consent or approval from any person. |
5.2 | The Seller hereby unconditionally and irrevocably represents and warrants to the Buyer that: |
5.2.1 | its representations and warranties made herein shall remain true, accurate and complete from the date of this Agreement to the Closing Date; |
5.2.2 | the Seller’s execution of this Agreement and its exercise and performance of its rights and obligations hereunder in accordance with the provisions herein will not violate: |
(i) | any law or statues to which it must adhere; or |
(ii) | any instrument or organization charter or documents on which its incorporation was based or which regulate its business or affairs; or |
(iii) | any document or agreement to which Buyer is a party or any agreement to which Buyer or its assets are bound; |
5.2.3 | the Seller is a legal and existing limited liability company incorporated in accordance with the law of the place of its registration and has the full capacity and authority to execute this Agreement, and to exercise its right and to perform its obligations in accordance with this Agreement; this Agreement constitutes a valid document binding to, and enforceable against, Seller; and |
5.2.4 | the Seller’s execution of this Agreement, and performance and completion of the transaction contemplated herein does not require consent or approval from any person. |
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5.3 | The Seller unconditionally and irrevocably represents and warrants to Buyer, as of the date of this Agreement until the Closing Date, as follows: |
5.3.1 | the Seller legally owns all the Codes; |
5.3.2 | the Codes have no Encumbrances attached and can be used immediately; |
5.3.3 | the value stored in the Codes is US$1,500,000; |
5.3.4 | in the event of the occurrence of any circumstances brought to the Seller’s attention that will cause the representations and warranties made by the Seller herein to be untrue, Seller will immediately notify Buyer; |
5.3.5 | the Seller is in compliance with all applicable laws and regulations in all material respects and to the best of its knowledge and belief, there is no failure to comply which would materially impair its ability to sell the Codes for the purposes for which they are intended for use on the Buyer’s site and to perform its obligations under this Agreement; and |
5.3.6 | the intellectual property owned or licensed by the Seller comprises all of the intellectual property required in order for the Seller to carry on its business as it is now being conducted, and in the sale to and use of the Codes by the Buyer as contemplated by this Agreement will not infringe any intellectual property rights of any third party. |
6. | FEES |
The parties hereto shall each be responsible for their own legal fees and other expenses, charges and payments in connection with negotiation, formulation and completion of this Agreement.
7. | NOTICE AND OTHER COMMUNICATIONS |
7.1 | Any notice or other communication given under this Agreement or in connection with the matters contemplated herein shall, except where otherwise specifically provided, be in writing in the English language, addressed as provided in Clause 7.2 and served: |
(a) | by leaving it at the relevant address in which case it shall be deemed to have been given upon delivery to that address; |
(b) | if within Hong Kong, by first class pre-paid post, in which case it shall be deemed to have been given two Business Days after the date of posting; |
(c) | if from or to any place outside Hong Kong, by air courier, in which case it shall be deemed to have been given two Business Days after its delivery to a representative of the courier; |
(d) | if from or to any place outside Hong Kong, by pre-paid airmail, in which case it shall be deemed to have been given five Business Days after the date of posting; or |
(e) | by e-mail, in which case it shall be deemed to have been given when despatched subject to confirmation of delivery by a delivery receipt, |
provided that in the case of sub-clause (e) above any notice despatched outside Working Hours shall be deemed given at the start of the next period of Working Hours.
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7.2 | Notices under this Agreement shall be sent for the attention of the person and to the address or e-mail address, subject to Clause 7.3, as set out below: |
To Seller: | ||
Address: | Cornwall Centre, No 85 Castle Peak Road, Coffee Bay, Tuen Mun, N.T., Hong Kong | |
Email: | sales@ecoin-global.com | |
Recipient: | Board of Directors | |
To Buyer: | ||
Address: | 604, 6th Floor, Tesbury Centre, 28 Queen’s Road East, Hong Kong | |
Email: | ecpower@cleantechsolutionsinternational.com | |
Recipient: | Board of Directors |
7.3 | Any party to this Agreement may notify the other party of any change to its address or other details specified in Clause 7.2 provided that such notification shall only be effective on the date specified in such notice or five Business Days after the notice is given, whichever is later. |
8. | MISCELLANEOUS |
8.1 | Further assurance: The parties hereto agree to take such further action or matter (or cause to have such action taken) and to execute and deliver such further document (or cause to have such document executed and delivered) if required by any law or due to any need or in order to perform this Agreement and/or complete the transaction contemplated herein reasonably and satisfactorily. |
8.2 | Complete Agreement: This Agreement (together with any document described herein or any document specified herein for execution) constitutes the complete agreement between the parties hereto regarding the transaction contemplated herein and supersedes all prior understanding between the parties hereto regarding the transaction. The parties hereto agree: |
8.2.1 | execution of this Agreement by either party is not based on any representation, warranty or assurance made by the other party other than those made herein; |
8.2.2 | except in cases of violation of any representation or warranty set forth herein, neither party may raise any claim or seek any damages based on any misleading representation (whether due to negligence or otherwise) by the other party, regardless whether such representation is made prior to or after the execution of this Agreement; provided that this provision does not absolve any party of any legal liability resulting from any fraudulent element in such representation. |
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8.3 | Cumulative Remedies: The rights and interest and remedies specifically provided herein for either party are additional and non-exclusive and shall not harm any interest, rights or remedies available to any party in absence of such specific provision; each party may exercise any interest, rights or remedies specifically provided herein according to its need without any limitation. |
8.4 | Non-waiver: failure to exercise, postponement or extension of, or indulgence or delay in the exercise of, any law or rights or remedies provided herein by any party shall not affect its future exercise of such rights and remedies or its ability to exercise any other rights and remedies. Such failure or delay shall not constitute waiver or modification of any other rights or remedies. Any exercise or partial exercise of such rights or remedies shall not prevent any other or further exercise of such rights or remedies nor prevent the exercise of any other rights and remedies. |
8.5 | Severability: If this Agreement is to be enforced, each party must enforce the provisions herein in accordance with the law of the competent jurisdiction to the full extent possible. If any provision herein is determined to be invalid or unenforceable, or partially invalid or unenforceable, such provision (to the extent of such invalidity or unenforceability) shall be considered to be invalid and considered not to be part of this Agreement but shall not cause any other provisions herein to be invalid. Both parties must make reasonable efforts to replace such invalid or unenforceable provision with other valid and enforceable provision of such effect that is as similar as possible to such invalid or unenforceable provision. |
8.6 | Modification: No modification of any provision herein (or any document described herein or made in connection herewith) shall be considered to be part of this Agreement unless it is in writing and signed by both parties. “Modification” for these purposes, includes changes, supplements, deletions and replacements of any kind. |
8.7 | Transfer: This Agreement is binding to the parties hereto and their respective successors and permitted assigns. Without prior written consent from the other party, neither party may transfer, assign, pledge in any way, or dispose in any other manner of, all or part of its rights and interest and/or obligations hereunder. |
8.8 | Counterparts: This Agreement may be executed in any number of counterparts, and all counterparts together constitute one and same agreement. |
8.9 | Legal Relationship: The parties hereto contract as independent principals. Neither party is, nor can it represent to be, an agent of any other party or partner. Neither party has the right to bind the other party or cause any legal liability to the other party. |
8.10 | Time Off-Essence: Time shall be of the essence in the performance by each party in the obligations hereunder. |
8.11 | Third Party Rights: A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Ordinance (Cap. 623 of the Laws of Hong Kong) to enforce any of its terms. |
9. | GOVERNING LAW AND JURISDICTION |
9.1 | This Agreement is governed by and construed in accordance with the law of Hong Kong. |
9.2 | Each party hereto irrevocably submits to the non-exclusive jurisdiction of the courts of Hong Kong. |
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SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.
For and on behalf of
ECoin Global Limited
Position: Director
For and on behalf of
EC Power(Global) Technology Limited
Position: Director
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Exhibit 10.3
Dated the 18th day of December 2019
YING HUIHAO
(as Vendor)
and
EC ADVERTISING LIMITED
(as Purchaser)
SALE
AND PURCHASE AGREEMENT
in respect of 100% of the issued share capital
of
G-COIN WORLDWIDE LIMITED
(as Company)
TABLE OF CONTENTS
Clause | Headings | Page | ||
1. | DEFINITIONS AND INTERPRETATION | 1 | ||
2. | SALE AND PURCHASE OF SALE SHARES | 4 | ||
3. | CONSIDERATION | 4 | ||
4. | CONDITIONS PRECEDENT | 4 | ||
5. | COMPLETION | 5 | ||
6. | REPRESENTATIONS AND WARRANTIES | 7 | ||
7. | VENDOR’S GUARANTEE AND UNDERTAKING | |||
8. | CALL OPTION | |||
9. | FURTHER ASSURANCE | 9 | ||
10. | RESTRICTIONS ON COMMUNICATION AND ANNOUNCEMENTS | 9 | ||
11. | PARTIAL INVALIDITY | 9 | ||
12. | COSTS AND EXPENSES | 9 | ||
13. | ASSIGNMENT | 10 | ||
14. | CONTINUING EFFECT OF AGREEMENT | 10 | ||
15. | GENERAL | 10 | ||
16. | NOTICES | 10 | ||
17. | COUNTERPARTS | 12 | ||
18. | GOVERNING LAW | 12 | ||
SCHEDULE 1 PARTICULARS OF THE COMPANY | 14 | |||
SCHEDULE 2 VENDOR WARRANTIES | 15 | |||
SCHEDULE 3 PURCHASER WARRANTIES | 25 | |||
APPENDIX 1 | 27 |
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THIS AGREEMENT is made on the 18th day of December 2019
BETWEEN
(1) | YING HUIHAO, a holder of China passport number EG8278766 whose residential address is no.701, Unit 4 , Building 1, no.21 Xinfu Road , Xinfu District , Fushun, Liaoning , China (the “Vendor”); |
AND
(2) | EC Advertising Limited, a company incorporated with limited liability in Hong Kong whose registered office is situated at Room 1A, 14/F, Chun Wo Commercial Centre, 23-29 Wing Wo Street, Central, Hong Kong (the “Purchaser”). |
WHEREAS:
(A) | As at the date of this Agreement, the Company (particulars of which are set out in Schedule has owned a vessel with Certificate of Ownership Number 29996, with value at HK$5,000,000. The Company is wholly owned by the Vendor. |
(B) | As at the date of this Agreement, the Company (particulars of which are set out in Schedule has owned a vessel with Certificate of Ownership Number 38206, with value at HK$2,000,000. The Company is wholly owned by the Vendor. |
(C) | As at the date of this Agreement, the Purchaser is a wholly owned subsidiary of SEII (as hereinafter defined). |
(D) | The Vendor has agreed to sell, and the Purchaser has agreed to purchase, the Sale Shares (as hereinafter defined) upon the terms and conditions set out in this Agreement. |
(E) | Upon Completion, the Company will be owned as to 100% by the Purchaser, with the two vessels in (A) and (B) continue to be owned by the Company. |
NOW IT IS HEREBY AGREED as follows:
1. | DEFINITIONS AND INTERPRETATION |
1.1. | In this Agreement (including the Recitals and the Schedules), the following expressions shall, unless the context otherwise requires, have the following meanings: |
“Agreement” | this sale and purchase agreement (including its Recitals and Schedules), as may be amended or supplemented from time to time; |
“business day” | a day (other than Saturday) on which banks are open in Hong Kong for general banking business; |
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“Company” | G-COIN WORLDWIDE LIMITED, a company incorporated in Hong Kong with limited liability, particulars of which are set out in SCHEDULE 1; |
“Completion” | completion of the sale and purchase of the Sale Shares pursuant to Clause 5; |
“Completion Date” | thirty business days following the date on which all the Conditions Precedent are fulfilled or waived (as the case may be); |
“Conditions Precedent” | the conditions precedent set out in Clause 4; |
“Consideration” | has the meaning ascribed to it in Clause 3.1; |
“Consideration Share(s)” | 3,425,328 SEII Common Shares to be allotted and issued by SEII pursuant to Clause 3.1; |
“Employment Agreements” | the employment contracts to be entered into between the Company and each of the Key Management in the form and substance reasonably satisfied by the Purchaser in substantially the same form as set out in Appendix 1; |
“Encumbrance” | any option, right to acquire, right of pre-emption, mortgage, charge, pledge, lien, hypothecation, title retention, right of set off, counterclaim, trust arrangement or other security or any equity or restriction; |
“HK$” | Hong Kong dollars, the lawful currency of Hong Kong; |
“Hong Kong” | the Hong Kong Special Administrative Region of the People’s Republic of China; |
“Inland Revenue Ordinance” | Inland Revenue Ordinance (Chapter 112 of the Laws of Hong Kong); |
“Issue Price” | being US$ 0.262 per SEII Share; |
“Long Stop Date” | 31st December, 2019 or such later date as may be agreed between the Vendor and the Purchaser; |
“OTC” | OTC Markets, the stock market in the USA; |
“Parties” | parties to this Agreement and a “Party” means any one of them; |
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“Purchaser Warranties” | the representations, warranties and undertakings made by the Purchaser and contained in Clause 6 and SCHEDULE 2; |
“Sale Shares” | 1 shares in the share capital of the Company, being 100% of its entire issued share capital as at the date of this Agreement; |
“SEII” | SHARING ECONOMY INTERNATIONAL INC., a company incorporated with limited liability in Nevada, the United States and whose shares are listed and traded on OTC Markets (Stock Code: SEII); |
“SEII Preferred Shares” | preferred shares of SEII; |
“SEII Share(s)” | shares of common stock of SEII, par value US$0.001 per share (or of such other securities as shall result from a subdivision, consolidation, reclassification or re-construction of such shares from time to time); |
“Stamp Duty Ordinance” | Stamp Duty Ordinance (Chapter 117 of the Laws of Hong Kong); |
“Taxation” | all forms of tax, rate, levy, duty, charge, impost, fee, deduction or withholding of any nature now or hereafter imposed, levied, collected, withheld or assessed by any taxing or other authority in any part of the world and includes any interest, additional tax, penalty or other charge payable or claimed in respect thereof; |
“USA” | the United States of America; |
“US$” | United States dollars, the lawful currency of the USA; |
“Vendor Warranties” | the representations, warranties and undertakings made by the Vendor and contained in Clause 6 and SCHEDULE 2; |
“Warranties” | the Vendor Warranties and the Purchaser Warranties; and |
“%” | per cent. |
1.2. | In this Agreement: |
(a) | references to costs, charges, remuneration or expenses shall include any value added tax, turnover tax or similar tax charged in respect thereof; |
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(b) | references to any action, remedy or method of judicial proceedings for the enforcement of rights of creditors shall include, in respect of any jurisdiction other than Hong Kong, references to such action, remedy or method of judicial proceedings for the enforcement of rights of creditors available or appropriate in such jurisdiction as shall most nearly approximate thereto; |
(c) | words denoting the singular number only shall include the plural number also and vice versa; |
(d) | words denoting one gender only shall include the other genders and the neuter and vice versa; |
(e) | words denoting persons only shall include firms and corporations and vice versa; |
(f) | references to any provision of any statute shall be deemed also to refer to any modification or re-enactment thereof or any instrument, order or regulation made thereunder or under such modification or re-enactment; and |
(g) | references to any document in the agreed form is to such document which has been initialed by the parties for identification. |
1.3. | Headings shall be ignored in construing this Agreement. |
1.4. | The Recital and the Schedules are part of this Agreement and shall have effect accordingly. |
2. | SALE AND PURCHASE OF SALE SHARES |
Subject to the terms and conditions of this Agreement, the Vendor, as the legal and beneficial owner, shall sell the Sale Shares to the Purchaser and the Purchaser shall purchase the same from the Vendor free from all Encumbrances and third party rights of any kind and together with all rights now or hereafter attaching thereto including the right to receive all dividends and distributions declared, made or paid on or after the Completion Date.
3. | CONSIDERATION |
3.1. | The consideration of the Sale Shares to be paid by the Purchaser to the Vendor at Completion is HK$7,000,000.00 (the “Consideration”), which shall be satisfied by the allotment and issue of the Consideration Shares by SEII at the Issue Price. |
3.2. | The Purchaser shall procure SEII to allot and issue the Consideration Shares to the Vendor (or his nominee) on the Completion Date. |
4. | CONDITIONS PRECEDENT |
4.1. | Completion shall be conditional upon the fulfillment of the following Conditions Precedent: |
(a) | the Purchaser having conducted due diligence exercise (legal and financial) on the Company and satisfied with the results thereof; |
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(b) | all Vendor Warranties being true, accurate and not misleading at all material aspects at all times between the date hereof and the Completion Date (as though they had been made on such dates by reference to the facts and circumstances then subsisting); |
(c) | there having been no material adverse change, or any development likely to involve a prospective material adverse change in the condition (financial or operational or otherwise) or in the earnings, business affairs or business prospects, assets or liabilities of the Company, whether or not arising in the ordinary course of business since the date of this Agreement; |
(d) | OTC Markets having granted the approval for the listing of, and the permission to deal in, the Consideration Shares, if required under OTC Markets continued listing rules and regulations; and |
(e) | all necessary consents, approvals (including shareholders’ approval), permits and/or authorisations in respect of the transactions contemplated under this Agreement having been obtained. |
4.2. | All Conditions Precedent may be waived by the Parties by written consent. |
4.3. | Each Party undertakes to the other Party to use its best endeavours to ensure that the Conditions Precedent in Clause 4.1 are fulfilled as early as practicable and in any event not later than the Long Stop Date. |
4.4. | Each Party undertakes to provide all reasonable assistance to the other Party to fulfill the Conditions Precedent in Clause 4.1 in accordance with Clause 4.3. |
4.5. | If the Conditions Precedent have not been fulfilled or waived (as the case may be) on or before the Long Stop Date, this Agreement will lapse and become null and void and the Parties will be released from all obligations hereunder, save for liabilities for any antecedent breaches hereof. |
5. | COMPLETION |
5.1. | At Completion, the Vendor shall: |
(a) | deliver or cause to be delivered to the Purchaser: |
(i) | evidence reasonably satisfactory to the Purchaser that the Conditions Precedent in Clause 4.1 (which are applicable to the Vendor) of this Agreement have been fulfilled; |
(ii) | instrument of transfer and the bought and sold notes of the Sale Shares duly executed by the Vendor as registered holder thereof in favour of the Purchaser together with the related share certificate(s); |
(iii) | Employment Agreements duly executed by each of the Key Management and the Company; |
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(iv) | (1) | all statutory records and minute books (which shall be duly written up to date as at Completion) and accounting records including an original copy of the memorandum and articles of association or other equivalent constitutional documents, certificate of incorporation and business registration certificates, business licence, governmental approval letters and certificates (if any), common seal, authorised chops, share certificate books and other statutory records of the Company; |
(2) | all tax returns and assessments of the Company (if applicable) (receipted where the due dates for payment fell on or before the Completion Date); |
(3) | copies of all correspondence, if any, with its lawyers, accountants, tax or revenue departments, all other documents and correspondence, if any, relating to the business affairs of the Company; and |
(4) | all title deeds, evidence of ownership and documents relating to assets owned by the Company (if any); |
provided that the above shall be deemed to have been delivered if they are located at the registered office or principal place of business of the Company;
(v) | a cheque made payable to “the Government of the HKSAR” for such amount representing the share of Hong Kong stamp duty which shall be borne by the Vendor as transferor of the Sale Shares in accordance with the Stamp Duty Ordinance; |
(vi) | evidence reasonably satisfactory to the Purchaser showing that all loans or amounts due by the Company to its shareholders, directors or any other third party creditors have been fully waived or settled; |
(vii) | such other documents as may be reasonably required to give good title to the Sale Shares free from all Encumbrances and third party rights of any kind and to enable the Purchaser to become the registered holder thereof; and |
(viii) | a certified true copy of the resolutions of the board of directors of the Company approving the matters set out in Clause 5.2(b); |
(b) | procure that the following businesses be approved at a meeting of the directors of the Company: |
(i) | the directors of the Company shall approve the transfer of the Sale Shares and the Purchaser and/or its nominee shall be duly registered as the holder of the Sale Shares in the register of members of the Company, subject to the articles of association of the Company; |
(ii) | the directors of the Company shall resolve that the share certificate in respect of the Sale Shares be duly issued and delivered to the Purchaser and/or its nominee, subject to the articles of association of the Company; |
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(iii) | the directors of the Company shall approve any of its directors to do all such acts and things and to sign any documents reasonably required to give effect to the transaction as contemplated under this Agreement. |
5.2. | At Completion, against compliance with the provisions of Clause 5.2, the Purchaser shall deliver or cause to be delivered the following documents to the Vendor: |
(i) | a certified copy of the resolutions passed by the board of directors of the Purchaser approving the execution and performance of this Agreement; |
(ii) | evidence reasonably satisfactory to the Vendor that the Conditions Precedent in Clause 4.1 (which are applicable to the Purchaser) of this Agreement have been fulfilled; |
(iii) | instrument of transfer and the bought and sold notes of the Sale Shares duly executed by the Purchaser; |
(iv) | a copy of the board resolutions and, if required, the resolutions of an extraordinary general meeting of SEII approving the allotment and issue of the Consideration Shares; |
(v) | a cheque made payable to “the Government of the HKSAR” for such amount representing the Hong Kong stamp duty which shall be borne by the Purchaser as transferee of the Sale Shares in accordance with the Stamp Duty Ordinance; and |
(vi) | documents as may be reasonably required to give good title to the Consideration Shares free from all Encumbrances and third party rights of any kind and to enable the Vendor to become the registered holders thereof. |
6. | REPRESENTATIONS AND WARRANTIES |
6.1. | The Purchaser hereby represents, warrants and undertakes to the Vendor in the terms set out in this Clause 6 and SCHEDULE 3. |
6.2. | The Vendor hereby represent, warrant and undertake to the Purchaser in the terms set out in this Clause 6 and SCHEDULE 2. |
6.3. | The Purchaser shall be deemed to have repeated all the Purchaser Warranties on the basis that such Purchaser Warranties will at all times from the date of this Agreement up to and including the Completion Date be true, complete and accurate in all respects and such Purchaser Warranties shall have effect as if given at Completion as well as the date of this Agreement. |
6.4. | The Vendor shall be deemed to have repeated all the Vendor Warranties on the basis that such Vendor Warranties will at all times from the date of this Agreement up to and including the Completion Date be true, complete and accurate in all respects and such Vendor Warranties shall have effect as if given at Completion as well as the date of this Agreement. |
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6.5. | The Vendor agrees and acknowledges that the Purchaser is entering into this Agreement in reliance on the Vendor Warranties. |
6.6. | The Purchaser agrees and acknowledges that the Vendor is entering into this Agreement in reliance on the Purchaser Warranties. |
6.7. | None of the Warranties shall be limited or restricted by reference to or inference from the terms of any other Warranties or any other terms of this Agreement. |
6.8. | If any Party fails to perform any of its obligations in any material respect (including its obligation at Completion) under this Agreement or breaches any of the terms or Warranties set out in this Agreement in any material respect prior to Completion, then without prejudice to all and any other rights and remedies available at any time to a non-defaulting Party (including but not limited to the right to damages for any loss suffered by that Party), any non-defaulting Party may by notice either require the defaulting Party to perform such obligations or, insofar as the same is practicable, remedy such breach or to the extent it relates to the failure of the defaulting Party to perform any of its obligations on or prior to Completion in any material respect, treat the defaulting Party as having repudiated this Agreement and rescind the same. The rights conferred upon the respective Parties by the provisions of this Clause 6 are additional to and do not prejudice any other rights the respective Parties may have. Failure to exercise any of the rights herein conferred shall not constitute a waiver of any such rights. |
6.9. | The Vendor will not be liable under any of the Vendor Warranties unless a written notice of a claim has been received by the Vendor not later than the expiry of a period of eighteen (18) months following the Completion Date and legal proceedings for such claim have been commenced against and served on the Vendor within six (6) months of the giving of such written notice. |
6.10. | The total liability of the Vendor in respect of all claims brought by the Purchaser under this Agreement and/or any ancillary agreements executed pursuant thereto (including the Warranties) shall not exceed the amount of the Consideration. |
6.11. | The Vendor shall not be liable for any claim to the extent that such liability arises as a result of any legislation coming into force or effect after the Completion Date with retrospective effect. |
6.12. | The Vendor shall not be liable for any claim to the extent that such liability arises as a result of any change in the accounting policy after the Completion Date which is applicable to the Company. |
6.13. | The Vendor will not be liable for any claim or breach of any of the Vendor Warranties to the extent that such liability arises as a direct result of: |
(a) | any act done before the date of Completion by the Vendor or the Company at the written request of the Purchaser and is done in a manner in compliance with the written instructions of the Purchaser; or |
(b) | any act done or omitted to be done after the date of Completion by the Purchaser or the Company save for such acts which are contemplated in or are to be done to give effect to comply with this Agreement and any other documents or such acts which are necessary to be conducted in the business operation of the Company. |
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7. | FURTHER ASSURANCE |
Each Party undertakes to the other Party to execute or procure to be executed all such documents and to do or procure to be done all such other acts and things as may be reasonable and necessary to give all Parties the full benefit of this Agreement.
8. | RESTRICTIONS ON COMMUNICATION AND ANNOUNCEMENTS |
8.1. | Each of the Parties undertakes to the other Party that it shall not at any time after the date of this Agreement divulge or communicate to any person other than to its professional advisers, or when required by law or any rule of any relevant stock exchange body, or to its respective officers or employees whose province it is to know the same any confidential information concerning the business, accounts, finance or contractual arrangements or other dealings, transactions or affairs of the other which may be within or may come to its knowledge in connection with the transactions contemplated by this Agreement and it shall use its best endeavours to prevent the publication or disclosure of any such confidential information concerning such matters. This restriction shall not apply to information or knowledge which is or which properly comes into the public domain, through no fault of any of the Parties or to information or knowledge which is already known to any of the Parties at the time of its receipt. |
8.2. | Each of the Parties undertakes that he/it shall not at any time (save as required by law or any rule of any relevant stock exchange or regulatory body) make any announcement in connection with this Agreement unless the other Party shall have given its consent to such announcement (which consent may not be unreasonably withheld or delayed and may be given either generally or in a specific case or cases and may be subject to conditions). If any Party is required by law or any rule of any relevant stock exchange or regulatory body to make any announcement in connection with this Agreement, the other Party agrees to supply all relevant information relating to itself that is within its knowledge or in its possession as may be reasonably necessary or as may be required by any exchange and regulatory body to be included in the announcement. |
9. | PARTIAL INVALIDITY |
If, at any time, any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect in any jurisdiction, the legality, validity and enforceability in other jurisdictions or of the remaining provisions of this Agreement shall not be affected or impaired thereby.
10. | COSTS AND EXPENSES |
Each Party shall bear his/its own costs of and incidental to the preparation, negotiation and settlement of this Agreement and the transactions contemplated hereunder (including, without limitation, legal fees and expenses, and capital fees or stamp duty (if any) relating to this Agreement), provided that if the Vendor exercises the Call Option, the Vendor shall bear and pay all the stamp duty arising from or as a result of the transactions contemplated under the Call Option.
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11. | ASSIGNMENT |
No Party shall assign any of its rights or obligations under this Agreement without the written consent of the other Party.
12. | CONTINUING EFFECT OF AGREEMENT |
Any provision of this Agreement which is capable of being performed after Completion but which has not been performed at or before Completion shall remain in full force and effect notwithstanding Completion.
13. | GENERAL |
13.1. | This Agreement supersedes all and any previous agreements, arrangements or understanding between the Parties relating to the matters referred to in this Agreement and all such previous agreements, understanding or arrangements (if any) shall cease and determine with effect from the date hereof and neither Party shall have any claim in connection therewith. |
13.2. | This Agreement constitutes the entire agreement between the Parties with respect to its subject matter (no Party having relied on any representation or warranty made by the other Party which is not contained in this Agreement). No variation of this Agreement shall be effective unless made in writing and signed by all Parties. |
13.3. | Time shall be of the essence of this Agreement but no failure by any Party to exercise, and no delay on its part in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise of it or the exercise of any right or prejudice or affect any right against the other. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law. |
13.4. | No delay or failure by a Party to exercise or enforce (in whole or in part) any right provided by this Agreement or by law shall operate as a release or waiver, or in any way limit that Party’s ability to further exercise or enforce that, or any other, right. A waiver of any breach of any provision of this Agreement shall not be effective, or implied, unless that waiver is in writing and is signed by the Party against whom that waiver is claimed. In the event of a default by either Party in the performance of its obligations under this Agreement, the non-defaulting Party shall have the right to obtain specific performance of the defaulting Party’s obligations. Such remedy shall be in addition to any other remedies provided under this Agreement or at law. |
13.5. | Except as expressly provided in this Agreement, a person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Ordinance (Cap 623) to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Ordinance. |
14. | NOTICES |
14.1. | Any notice claim, demand, court process, document or other communication to be given under this Agreement (collectively “communication” in this Clause) shall be in writing in the English or Chinese language and may be served or given personally or sent to the e-mail address (if any) of the relevant Party and marked for the attention and/or copied to such other person as specified in Clause 16.4. |
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14.2. | A change of address or e-mail address of the person to whom a communication is to be addressed or copied pursuant to this Agreement shall not be effective until five days after a written notice of change has been served in accordance with the provisions of this Clause 16 on the other Party with specific reference in such notice that such change is for the purposes of this Agreement. |
14.3. | All communications shall be served by the following means and the addressee of a communication shall be deemed to have received the same within the time stated adjacent to the relevant means of despatch: |
Means of despatch | Time of deemed receipt | ||
Local mail or courier | 24 hours | ||
12 hours | |||
Air courier/Speedpost | 3 days | ||
Airmail | 7 days |
14.4. | The initial addresses and e-mail addresses of the Parties for the service of communications, the person for whose attention such communications are to be marked and the person to whom a communication is to be copied are as follows: |
If to the Vendor:
Address : | No.701, Unit 4, Building 1, no.21 Xinfu Road, Xinfu | |
District, Fushun, Liaoning, China | ||
E-mail : | huihaoying@gmail.com | |
Attention : | YING, Huihao |
If to the Purchaser:
Address : | Room 1A, 14/F, Chun Wo Commercial Centre, 23-29 Wing Wo | |
Street, Central, Hong Kong | ||
E-mail : | bryan.au@seii.com | |
Attention : | Bryan Au |
14.5. | A communication served in accordance with this Clause 16 shall be deemed sufficiently served and in proving service and/or receipt of a communication it shall be sufficient to prove that such communication was left at the addressee’s address or that the envelope containing such communication was properly addressed and posted or despatched to the addressee’s address. In the case of communication by e-mail, such communication shall be deemed properly transmitted upon the receipt of the sent confirmation by the e-mail account of the sender. |
14.6. | Nothing in this Clause shall preclude the service of communication or the proof of such service by any mode permitted by law. |
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15. | COUNTERPARTS |
This Agreement may be executed in any number of counterparts, and this has the same effect as if the execution on the counterparts were on a single copy of this Agreement.
16. | GOVERNING LAW |
16.1. | This Agreement shall be governed by and construed in accordance with the laws of Hong Kong. |
16.2. | The courts of Hong Kong have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement). |
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IN WITNESS whereof this Agreement has been duly executed on the date first above written.
VENDOR | ![]() | |
SIGNED by YING HUIHAO | ) | |
in the presence of: | ) | |
PURCHASER | ![]() | |
SIGNED by LAM KA MAN | ) | |
as authorised representative of | ) | |
EC Advertising Limited | ) | |
in the presence of: | ) |
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PARTICULARS OF THE COMPANY
1. | Company name | : | G-Coin Worldwide Limited |
2. | Company number | : | 2052234 |
3. | Date of incorporation | : | 12-3-2014 |
4. | Place of incorporation | : | Hong Kong |
5. | Address of registered office | : | Cornwall Center, No. 85 Castle Peak Road, Tuen Mun, N.T., Hong Kong |
6. | Issued share capital | : | HKD 1 |
7. | Sole shareholder | : | Ying Huihao |
8. | Directors | : | Ying Huihao |
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VENDOR WARRANTIES
1. | General |
1.1. | The contents of the Recitals of and Schedule 1 this Agreement are true and accurate. |
1.2. | All information given by the Vendor or their agents or professional advisers to the Purchaser or its employees, agents or professional advisers relating to the business, activities, affairs, or assets or liabilities of the Company was, when given, and is now true, accurate and complete in all respects. |
1.3. | There are no material facts or circumstances, in relation to the assets, business or financial condition of the Company which have not been exhaustively, expressly and fairly disclosed in writing to the Purchaser or its employees, agents or professional advisers, and which, if disclosed, might reasonably have been expected to affect the decision of the Purchaser to enter into this Agreement. |
1.4. | The execution and performance of this Agreement will not conflict with or result in a breach of or be a reason for the termination or variation of any agreement or obligation to which the Company is now a party or any of the Company or its assets are or may be bound or affected or be in violation of any law, rule or regulation of any governmental, administrative or regulatory body or any order, injunction or decree of any judicial, administrative, regulatory or governmental body affecting the Company. |
2. | Organisation, Authority and Power |
2.1. | The Company is a company duly incorporated and validly existing under the laws of Hong Kong. All issued shares in the Company are duly authorised, validly issued and fully paid up and none of such shares (where applicable) has been issued in violation of the memorandum and articles of association of the Company or the terms of any agreement by which the Company or its shareholders were or are bound, if any. |
2.2. | The Vendor has, on the date of this Agreement and on Completion, full and unfettered right, power and authority to enter into this Agreement and assume all of their obligations hereunder and no further actions or proceedings are necessary on their part in connection with the execution, delivery and performance by them of this Agreement. |
2.3. | This Agreement constitutes valid and legally binding obligations on the part of the Vendor enforceable in accordance with its terms. |
2.4. | The Vendor is the legal and beneficial owner of the Sale Shares and is entitled to sell and transfer the Sale Shares and pass the full legal and beneficial ownership thereof with all rights thereto to the Purchaser or its nominee on the terms of this Agreement. The Sale Shares are issued and fully paid and are beneficially owned by the Vendor free from all Encumbrances. The Sale Shares constitutes the 60% of the issued share capital of the Company. |
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3. | Records and taxation |
3.1. | The Company has duly made up all requisite minutes books, registers and records in compliance with all applicable laws and regulatory requirements and these and all other deeds and documents (properly stamped where necessary) belonging to or which ought to be in its possession and its seal are in its possession. |
3.2. | All the books, ledgers, financial and other records of whatsoever kind, of the Company are in its possession, have been fully, properly and accurately kept and completed, do not contain any material inaccuracies or discrepancies of any kind and give and reflect a true and fair view of its trading transactions (if any), and its financial, contractual and trading position. |
3.3. | The Company has duly complied with its obligations to account to the relevant tax authorities and all other authorities for all amounts for which it is or may become accountable in respect of Taxation relating to its business. |
3.4. | All returns in connection with Taxation that should have been filed by the Company have been filed correctly and on a proper basis in accordance with all applicable laws and regulatory requirements and there are no facts known or which would on reasonable enquiry be known to the Company or its directors which may give rise to any dispute or to any claim for any Taxation or the deprivation of any relief or advantage that might have been available. |
3.5. | The Company is not and does not expect to be involved in any dispute in relation to Taxation and no authority concerned has investigated or indicated that it intends to investigate into the tax affairs of the Company nor are there any circumstances of which the Vendor is aware which would cause any authority to investigate into the tax affairs of the Company. |
3.6. | The Company has no liability in respect of Taxation (whether actual or contingent) nor any liability for interest, penalties or charges imposed in relation to any Taxation arising or deemed to arise in any accounting period ending on or before the date of this Agreement. |
3.7. | Since incorporation of the Company and inclusive of the Completion Date: |
(i) | the Company has not been involved in any transaction outside the ordinary course of business which has given or may give rise to a liability to Taxation on the Company (or would have given or might give rise to such a liability but for the availability of any relief, allowance, deduction or credit); |
(ii) | no disposal has taken place or other event occurred which will or may have the effect of crystallising a liability to Taxation; |
(iii) | no payment has been made by the Company which will not be deductible for profits tax (or its equivalent) purposes either in computing the profits of the Company or in computing the profits tax chargeable on the Company; |
(iv) | no event has occurred with the result that the Company has or will become liable to pay or bear a liability in respect of Taxation directly or primarily charged against, or attributable to, another person, firm or company; and |
(v) | the Company has not paid or become liable to pay any penalty in connection with any Taxation or otherwise paid any Taxation after its due date for payment or become liable to pay any Taxation the due date for payment of which has passed or will become prospectively liable to pay any Taxation the due date for payment of which will fall within 30 days after the date of this Agreement. |
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3.8. | The Company has within the time limits prescribed by the relevant legislation duly paid all tax (including provisional tax), made all returns, given all notices, supplied all other information required to be supplied to the Inland Revenue Department of Hong Kong and any other relevant governmental authority (including any governmental authority of a foreign jurisdiction) and all such information was and remains complete and accurate in all material respects and all such returns and notices were and remain complete and accurate in all material respects and were made on a proper basis and do not, nor, to the best of the knowledge, information and belief of the Vendor, having made due and careful enquiry, are likely to, reveal any transactions which may be the subject of any dispute with the Inland Revenue Department of Hong Kong or other relevant authorities(including any governmental authority of a foreign jurisdiction) and the Company is not and has not in the last three years been the subject of an Inland Revenue Department of Hong Kong(or equivalent foreign tax authority) investigation or field audit or other dispute regarding tax or duty recoverable from the Company or regarding the availability of any relief from Taxation or duty to the Company and there are no facts known to the Vendor which are likely to cause such an investigation or audit to be instituted or such a dispute to arise. |
3.9. | There are no material and/or unusual arrangements, agreements or undertakings, between the Company and the Inland Revenue Department of Hong Kong, or any foreign tax authorities, regarding or affecting the Taxation treatment of the Company. |
3.10. | The Company has kept sufficient records in either English or Chinese: |
(i) | of its income and expenditure to enable the assessable profits of its trade, profession or business to be readily ascertained in compliance with and for the period mentioned in Section 51C of the Inland Revenue Ordinance or other similar legislation; |
(ii) | of the consideration, in money or money’s worth, payable or deemed to be payable to it, to its order or for its benefit in respect of the right of use of its land or buildings or land and buildings to enable the assessable value of its land or buildings or land and buildings to be readily ascertained in compliance with and for the period mentioned in Section 57D of the Inland Revenue Ordinance. |
3.11. | The Company has duly complied with all requirements to deduct or withhold Taxation from any payments it has made and has accounted in full to the appropriate authorities for all amounts so deducted or withheld. |
4. | Corporate Status |
4.1. | The Company is duly incorporated, validly existing and in good standing under the laws of Hong Kong and has all requisite corporate power and authority to own its assets and to carry on its business as currently conducted and is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of its assets or the conduct of its business requires such qualification. |
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4.2. | No events or omissions have occurred whereby the constitution, subsistence or corporate status of the Company has been or is likely to be adversely affected. |
4.3. | No order for the appointment of a liquidator has been made and as receiver has been appointed over the whole or any part of the assets of the Company. |
4.4. | No order has been made, or petition presented, or resolution passed for the winding up of the Company, nor has any distress, execution or other process been levied in respect of the Company which remains undischarged; nor is there any unfulfilled or unsatisfied judgment or court order outstanding against the Company. |
4.5. | Save as contemplated under and this Agreement, as at the Completion Date, there are no pre-emptive or other outstanding rights, options, warrants, conversion rights or agreements or commitments of any character relating to the authorised and issued, unissued or treasury shares or equity interest of the Company and the Company has not issued any debt securities, other securities, rights or obligations which are convertible into or exchangeable for, or giving any person a right to subscribe for or acquire, capital or equity interest of the Company, and no such securities or obligations evidencing such rights are outstanding. |
5. | Business, etc. |
5.1. | The Company has not given or permitted to be outstanding any powers of attorney or authority (expressed or implied) to any party to enter into any contracts, commitments or transactions (other than the usual authority conferred on its directors in respect of the ordinary course of business) or pursuant to the banking facilities granted to the Company. |
5.2. | The Company has not entered into any contracts, commitments or transactions other than on an arms-length basis nor breached or defaulted under any contracts, commitments or transactions. |
5.3. | There are no existing circumstances which indicate that as a result of the consummation of this Agreement: |
(i) | the existing level of business of the Company may be substantially reduced; and |
(ii) | the Company will lose the benefit of any right or privilege which it enjoys. |
5.4. | Compliance with the terms of this Agreement does not and will not : |
(i) | conflict with, or result in the breach of, or constitute a default under, any of the terms, conditions or provisions of any agreement or instrument to which the Company is a party, or any provision of the memorandum or articles of association or equivalent constitutive documents of the Company or any Encumbrance, lease, contract, order, judgment, award, injunction, regulation or other restriction or obligation of any kind or character by which or to which any asset of the Company is bound or subject; |
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(ii) | relieve any person from any obligation to the Company (whether contractual or otherwise), or enable any person to determine any obligation, or any right or benefit enjoyed by the Company, or to exercise any right, whether under an agreement with, or otherwise in respect of, the Company; |
(iii) | result in the creation, imposition, crystallisation or enforcement of any Encumbrances whatsoever on any of the assets of the Company; or |
(iv) | result in any present or future indebtedness of the Company becoming due, or capable of being declared due and payable, prior to its stated maturity. |
5.5. | The Company has, at all times, carried on its business and conducted its affairs in all respects in accordance with its memorandum and articles of association or equivalent constitutive documents for the time being in force and any other documents to which it is, or has been, a party. |
5.6. | The Company is empowered and duly qualified to carry on business in all jurisdictions in which it now carries on business. |
5.7. | The Company is not a party to any undertaking or assurances given to any court or governmental agency, which is still in force. |
5.8. | The Company has conducted and is conducting its business in all respects in accordance with all applicable laws and regulations, whether of Hong Kong or elsewhere. |
5.9. | The Company is in possess of all requisite licences, permits and approvals for conducting its businesses and is not in breach of any of the terms or conditions of any of the licences or consents; the enforcement of this Agreement shall not, and there are no factors that might, in any way prejudice the continuation, or renewal, of any of them. |
5.10. | The Company is not a party to any contract, transaction, arrangement or liability which: |
(i) | is of an unusual or abnormal nature, which is outside the ordinary and proper course of business; or |
(ii) | cannot readily be fulfilled or performed by it on time without undue, or unusual, expenditure of money, effort or personnel. |
5.11. | No notice, demand or claim of default under any agreement, instrument or arrangement to which the Company is a party has been received by the Company and is outstanding against it and there is nothing whereby any such agreement, instrument or arrangement may be prematurely terminated or rescinded by any other party. |
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5.12. | The Vendor is not aware of: |
(i) | any party to any agreement with, or under an obligation to, the Company who is in default under it, being a default which would be material in the context of the Company’s financial position; and |
(ii) | any circumstances likely to give rise to such a default. |
5.13. | Insofar as the Vendor is aware, the Company has not supplied services or products which are, or were, or will become faulty or defective, or which do not comply in any material respect with any warranties or representations, expressly or impliedly made by it, or with all applicable regulations and requirements. |
6. | Corporate Records and Procedures etc. |
6.1. | The copy of the articles of association or the equivalent constitutive documents of the Company delivered to the Purchaser is accurate, update and complete in all respects. |
6.2. | No alteration has been made to the memorandum or articles of association or the equivalent constitutive documents of the Company and no resolution of any kind of the shareholders of the Company has been passed (other than resolutions relating to the business at annual general meetings which was not special business) without disclosure in writing to the Purchaser. |
6.3. | The Company has fully and punctually observed and complied with its obligations under the relevant companies legislations and the relevant statutes and all returns, particular resolutions and other documents (if any) required to be filed have been properly and punctually filed. |
6.4. | The register of members of the Company is and will at Completion be correct. There has been no notice of any proceedings to rectify the register, and there are no circumstances which might lead to any application for rectification of the register, nor will there be any such circumstances at or before Completion. |
7. | Directors |
Other than the directors set out in Schedule 1, the Company has no other director.
8. | Dispute, Claims and Litigation |
8.1. | The Company is not engaged in any litigation or arbitration proceedings, as plaintiff or defendant; there are no proceedings pending or threatened, either by or against the Company; and no circumstances exist which are likely to give rise to any litigation or arbitration. |
8.2. | There is no dispute with any revenue, or other official, department or other regulatory authority in Hong Kong or elsewhere, in relation to the affairs of the Company, and the Company and the Vendor is not aware of any facts which may give rise to any dispute. |
8.3. | No order has been made, or petition presented, or resolution passed for the winding up of the Company; nor has any distress, execution or other process been levied in respect of the Company which remains undischarged; nor is there any unfulfilled or unsatisfied judgment or court order outstanding against the Company. |
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8.4. | The Company has conducted its business and dealt with its assets in all material respects in accordance with all applicable legal and administrative requirements in Hong Kong and any other jurisdiction. |
8.5. | The Company has not committed any criminal act or material breach of contract or statutory duty or any tortious or other unlawful act. |
8.6. | No unsatisfied judgment is outstanding against the Company. |
9. | Liabilities |
9.1. | The Company does not have any material liabilities or financial commitment. |
9.2. | All loans and payables incurred before Completion have been either waived or settled, save for those as agreed between the Vendor and the Purchaser. |
10. | Agents |
10.1. | There are in force no powers of attorney or any special authorities given by the Company other than those given in the ordinary course of business. |
10.2. | Other than in the ordinary course of business, the Company has not ever entered into an agreement under which any person has been given representative or agency rights or powers. |
11. | Intellectual Property |
11.1. | Each of the intellectual property rights owned, used or required to be used by the Company (the Intellectual Property Rights) is: |
(i) | valid and enforceable and nothing has been done or omitted to be done by which it may cease to be valid and enforceable; |
(ii) | legally and beneficially owned by, and validly granted to, the Company alone, free from any licence, Encumbrance, restriction on use or disclosure obligation; and |
(iii) | not, and will not be, the subject of a claim or opposition from a person (including, without limitation, an employee of the Company) as to title, validity, enforceability, entitlement or otherwise; and |
(iv) | validly licensed to the Company on terms which have been disclosed to the Buyer and which are not terminable as a result of any transaction contemplated in this Agreement. |
11.2. | Nothing has been done or omitted to be done and no circumstances exist by which a person is or will be able to seek cancellation, rectification or other modification of a registration of any of the Intellectual Property Rights. |
11.3. | The Company has not granted nor is it obliged to grant a licence, assignment, consent, undertaking, security interest or other right in respect of any of the Intellectual Property Rights. |
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11.4. | There is not, and never has been, an infringement or unauthorised use of any of the Intellectual Property Rights. |
11.5. | The Company does not use, or operate its business under, a name other than corporate name. |
12. | Insurance |
12.1. | The Company has at all material times been and is at the date of this Agreement maintained insurance against each risk normally insured against by a person operating the types of business operated by the Company. |
12.2. | Status of the Policies |
(i) | Each of the insurance policies in respect of which the Company has an interest (the Policies) is valid and enforceable and is not void or voidable. |
(ii) | The Company has notdone anything or omitted to do anything which might: |
a) | make any of the Policies void or voidable; or |
b) | prejudice the ability to effect insurance on the same or better terms in the future. |
(iii) | No insurer under any of the Policies has disputed, or given any indication that it intends to dispute, the validity of any of the Policies on any grounds. |
(iv) | There is nothing which could: |
a) | vitiate any of the Policies; or |
b) | prejudice the ability to effect insurance on the same or better terms in the future. |
(v) | None of the Policies contains any provisions as to change of control or ownership of the insured. |
(vi) | No insurer has ever cancelled or refused to accept or continue any insurance in relation to the Company. |
13. | Compliance with Law |
13.1. | The Company has complied with: |
(i) | each obligation imposed on it by, and each order and award made under, statute, regulation, code of conduct and practice, collective agreement, custom and practice relevant to the relations between it and its employees or a trade union or the terms of employment of its employees; and |
(ii) | each recommendation made by any arbitration or mediation body and each award and declaration made by such body. |
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13.2. | There is no investigation or enquiry outstanding (or, to the best of the Core Sellers’ knowledge, anticipated) by any governmental organisation or statutory body in connection with the Company. |
13.3. | There are no active, pending or threatened court, tribunal or arbitration proceedings in respect of the Vendor. |
13.4. | The Company has maintained adequate insurance including employer’s liability insurance in respect of its existing and former employees. |
13.5. | No employee of the Company requires a work permit. |
13.6. | To the best of the Vendor’s knowledge, no employee/consultant/agent of the Company is subject to any restrictive covenants with any previous employer/client/principal or any court order in relation to any such covenants. |
14. | Acquisition of the Consideration Shares |
14.1. | The Vendor and the Company understand that the Consideration Shares are “restricted securities” and have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) or any applicable state securities law and are acquiring the Consideration Shares as principal for their own account and not with a view to or for distributing or reselling the Consideration Shares or any part thereof in violation of the Securities Act, have no present intention of distributing any of such Consideration Shares in violation of the Securities Act and have no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Consideration Shares in violation of the Securities Act. The Vendor and the Company understand that the Consideration Shares may only be disposed of in compliance with the Securities Act. |
14.2. | Each of the Vendor and the Company hereby represents that he has satisfied himself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Sale Shares Consideration Shares or the Subscription Consideration Shares (as the case may be), including (i) the legal requirements within its jurisdiction for the acquisition of the Sale Shares Consideration Shares or the Subscription Consideration Shares (as the case may be), (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, or transfer of the Sale Shares Consideration Shares or the Subscription Consideration Shares (as the case may be). The Vendor’s or the Company’s beneficial ownership of the Sale Shares Consideration Shares or the Subscription Consideration Shares (as the case may be)s will not violate any applicable securities or other laws of the Vendor’s or the Company’s jurisdiction. |
14.3. | The Vendor and the Company, either alone or together with their representatives, have such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the acquisition of the Consideration Shares, and have so evaluated the merits and risks. Each of the Vendor and the Company is able to bear the economic risk of the Sale Shares Consideration Shares or the Subscription Consideration Shares (as the case may be) and, at the present time, is able to afford a complete loss of the Sale Shares Consideration Shares or the Subscription Consideration Shares (as the case may be)s. |
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14.4. | The Vendor and the Company are not, to each of their knowledge, acquiring the Consideration Shares as a result of any advertisement, article, notice or other communication regarding the Consideration Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. |
14.5. | The Vendor and the Company acknowledge that they have had the opportunity to review any and all documents and has been afforded (i) the opportunity to ask such questions as they have deemed necessary of, and to receive answers from, representatives of SEII concerning the Consideration Shares; and (ii) access to information about SEII and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate the transaction. The Vendor and the Company acknowledge and agree that SEII has not provided the Vendor and the Company with any information or advice with respect to the Consideration Shares nor is such information or advice necessary or desired. |
14.6. | Neither the Vendor nor the Company (including any person acting on their behalf) has engaged, nor will engage, in any directed selling efforts to a U.S. Person (as defined in the Securities Act) with respect to the Consideration Shares and the Vendor, the Company and any person acting on their behalf have complied and will comply with the “offering restrictions” requirements of Regulation S. The transactions contemplated hereby have not been pre-arranged with a buyer located in the United States or with a U.S. Person, and are not part of a plan or scheme to evade the registration requirements of the Securities Act. Neither the Vendor nor the Company (including any person acting on their behalf) has undertaken or carried out any activity for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States, its territories or possessions, for any of the Consideration Shares. The Vendor and the Company agree not to cause any advertisement of the Consideration Shares to be published in any newspaper or periodical or posted in any public place and not to issue any circular relating to the Consideration Shares, except such advertisements that include the statements required by Regulation S, and only offshore and not in the U.S. or its territories, and only in compliance with any local applicable securities laws. |
14.7. | The Vendor and the Company understand that the Consideration Shares and any securities issued in respect of or exchange for the Consideration Shares, may be notated with one or all of the following legends, as applicable: |
“THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.”
“THESE SECURITIES ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“THE SECURITIES ACT”) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION S PROMULGATED UNDER THE SECURITIES ACT. TRANSFER OF THESE SECURITIES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”
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PURCHASER WARRANTIES
1. | The Purchaser has, on the date of this Agreement and on Completion, full and unfettered right, power and authority to enter into this Agreement and assume all of its obligations hereunder and no further actions or proceedings are necessary on its part in connection with the execution, delivery and performance by it of this Agreement. |
2. | The Purchaser is a company duly incorporated and validly existing under the laws of British Virgin Islands. |
3. | This Agreement constitutes valid and legally binding obligations on the part of the Purchaser enforceable in accordance with its terms. |
4. | All information given by the Purchaser or its agents or professional advisers to the Vendor or its employees, agents or professional advisers was, when given, and is now true, accurate and complete in all respects. |
5. | Subject to the fulfillment of the Conditions Precedent, all necessary consents, authorisations and approvals of and all necessary registrations and filings with any governmental or regulatory agency or body required in the USA and Hong Kong for or in connection with this Agreement and the performance of the terms thereof have been obtained or made or will have been obtained or made by Completion. |
6. | All the Consideration Shares and the SEII Shares converted in accordance with the Consideration Notes to be issued and allotted by SEII to the Vendor will be duly authorised, validly issued, fully paid up, free from all Encumbrances and from all other rights exercisable by third parties, ranking pari passu with all existing SEII Shares in the share capital of SEII. None of the Consideration Shares, the Consideration Notes and the SEII Shares converted thereunder will be issued in violation of the memorandum and articles of association of SEII or the terms of any agreement or laws and regulations by which SEII or its shareholders were or are bound, if any. |
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