EXHIBIT 2.1
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DATED
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17 th
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DAY OF
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AUGUST
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2009
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Amongst
UCMG L.L.C.
(“Vendor
1”)
and
UNION CARBIDE
CORPORATION
(“Vendor
2”)
and
PETROLIAM NASIONAL
BERHAD
(“Purchaser”)
_____________________________________________________
AGREEMENT FOR THE SALE &
PURCHASE OF SHARES IN
(1) OPTIMAL GLYCOLS (MALAYSIA)
SDN. BHD.;
(2) OPTIMAL OLEFINS (MALAYSIA)
SDN. BHD.; AND
(3) OPTIMAL CHEMICALS (MALAYSIA)
SDN. BHD.
______________________________________________________
CONTENTS
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Clause
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Page
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l.
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INTERPRETATION
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4
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2.
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SALE OF SHARES
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9
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3.
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CONSIDERATION
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10
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4.
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CONDITIONS
PRECEDENT
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10
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5.
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COMPLETION
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12
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6.
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WARRANTIES
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15
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7.
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LAW AND
JURISDICTION
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17
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8.
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OPTION TO BUY BACK
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18
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9.
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TERMINATION
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18
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10.
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PARTIES'
INDEMNITIES
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18
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11.
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CONFIDENTIALITY AND RESTRICTION
ON ANNOUNCEMENT
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19
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12.
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MISCELLANEOUS
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19
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THIS AGREEMENT
is made on the
17th day of
August 2009
UCMG L.L.C.
, a limited liability company
organized and existing under the laws of the State of Delaware,
United States of America and having its principal office at 1254
Enclave Parkway, Houston, TX 77077, United States of America
(“ Vendor 1 ”);
UNION CARBIDE
CORPORATION , a
corporation organized and existing under the laws of the State of
New York, United States of America and having its principal office
at 1254 Enclave Parkway, Houston, TX 77077, United States of
America (“ Vendor 2 ”) (Vendor 1 and Vendor 2
shall hereafter be referred to collectively as “
Vendors ”);
PETROLIAM NASIONAL
BERHAD (Company No.:
20076-K), a company incorporated under the laws of Malaysia and
having its registered address at Tower 1, PETRONAS Twin Towers,
Kuala Lumpur City Centre, 50088 Kuala Lumpur, Malaysia (the “
Purchaser ”).
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OPTIMAL GLYCOLS (MALAYSIA) SDN.
BHD. (Company No.:
466592-M) is a company incorporated under the laws of Malaysia and
having its principal place of business at Level 9, Menara Dayabumi,
Jalan Sultan Hishamuddin, Wilayah Persekutuan, 50050 Kuala Lumpur,
Malaysia (“ OGM ”). As at the date hereof,
OGM has an authorised share capital of Ringgit Malaysia Six Hundred
Million (RM600,000,000) divided into:
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One Million Seventy One Thousand
Five Hundred Forty Eight (1,071,548) ordinary shares of Ringgit
Malaysia Five Hundred (RM500) each; and
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One Hundred Twenty Eight Thousand
Four Hundred Fifty Two (128,452) preference shares of Ringgit
Malaysia Five Hundred (RM500) each,
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and an issued and paid-up share
capital of Ringgit Malaysia One Hundred Ninety Two Million Seven
Hundred Forty Four Thousand (RM192,744,000) divided
into:
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Two Hundred Fifty Seven Thousand and
Thirty Six (257,036) ordinary shares of Ringgit Malaysia Five
Hundred (RM500) each; and
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One Hundred Twenty Eight Thousand
Four Hundred and Fifty Two (128,452) preference shares of Ringgit
Malaysia Five Hundred (RM500) each.
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Pursuant to a shareholders’
agreement dated 8 April 1998 (“ Initial OGM
Shareholders’ Agreement ”) between Vendor 1 and the
Purchaser, the parties had agreed to enter into a joint venture to
incorporate OGM and for their rights inter se in OGM to be
regulated by the terms of the Initial OGM Shareholders’
Agreement. By an agreement dated 20 September 2006 (“ OGM
Variation Agreement ”), Vendor 1 and the Purchaser agreed
to vary certain terms in the Initial OGM Shareholders’
Agreement. The Initial OGM Shareholders’ Agreement, as varied
and supplemented by the OGM Variation Agreement, shall hereafter be
referred to as the “ OGM Shareholders’ Agreement
”.
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In accordance with the terms of the
OGM Shareholders’ Agreement, Vendor 1 is the registered and
beneficial owner of One Hundred Twenty Eight Thousand Five Hundred
and Eighteen (128,518) ordinary shares of Ringgit Malaysia Five
Hundred (RM500) each and Sixty Four Thousand Two Hundred and Twenty
Six (64,226) preference shares of Ringgit Malaysia Five Hundred
(RM500) each in the capital of OGM (collectively, the “
Sale Shares 1 ”) amounting to 50% of the issued and
paid-up share capital of OGM.
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OPTIMAL OLEFINS (MALAYSIA) SDN.
BHD. (Company No.:
466583-K) is a company incorporated under the laws of Malaysia and
having its principal place of business at Level 9, Menara Dayabumi,
Jalan Sultan Hishamuddin, Wilayah Persekutuan, 50050 Kuala Lumpur,
Malaysia (“ OOM ”). As at the date hereof,
OOM has an authorised share capital of Ringgit Malaysia One and a
Half Billion (RM1,500,000,000) divided into Three Million
(3,000,000) ordinary shares of Ringgit Malaysia Five Hundred
(RM500) each and an issued and paid-up share capital of Ringgit
Malaysia Two Hundred and Twelve Million Four Hundred and Thirty Two
Thousand and Five Hundred (RM212,432,500) divided into Four Hundred
and Twenty Four Thousand Eight Hundred and Sixty Five (424,865)
ordinary shares of Ringgit Malaysia Five Hundred (RM500)
each.
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Pursuant to a shareholders’
agreement dated 17 October 2000 (“ Initial OOM
Shareholders’ Agreement ”) amongst Vendor 2, the
Purchaser and Sasol Polymers International Investments (Pty) Ltd.
(“ Sasol ”), the parties had agreed to enter
into a joint venture to incorporate OOM and for their rights
inter se in OOM to be regulated by the terms of the Initial
OOM Shareholders’ Agreement. By agreements dated 6 May 2004
and 20 September 2006 (“ OOM Variation Agreements
”), Vendor 2, the Purchaser and Sasol agreed to vary certain
terms in the Initial OOM Shareholders’ Agreement. The Initial
OOM Shareholders’ Agreement, as varied and supplemented by
the OOM Variation Agreements, shall hereafter be referred to as the
“ OOM Shareholders’ Agreement
”.
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In accordance with the terms of the
OOM Shareholders’ Agreement, Vendor 2 is the registered and
beneficial owner of One Hundred Thousand Nine Hundred and Six
(100,906) ordinary shares of Ringgit Malaysia Five Hundred (RM500)
each in the capital of OOM (the “ Sale Shares 2
”) amounting to approximately 23.75% of the issued and
paid-up share capital of OOM.
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OPTIMAL CHEMICALS (MALAYSIA) SDN.
BHD. (Company No.:
466586-D) is a company incorporated under the laws of Malaysia and
having its principal place of business at Level 9, Menara Dayabumi,
Jalan Sultan Hishamuddin, Wilayah Persekutuan, 50050 Kuala Lumpur,
Malaysia (“ OCM ”). As at the date hereof,
OCM has an authorised share capital of Ringgit Malaysia Five
Hundred and Fifty Million (RM550,000,000) divided into:
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Nine Hundred Thirty Five Thousand
One Hundred and Sixty Two (935,162) ordinary shares of Ringgit
Malaysia Five Hundred (RM500) each; and
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One Hundred Sixty Four Thousand
Eight Hundred and Thirty Eight (164,838) preference shares of
Ringgit Malaysia Five Hundred (RM500) each,
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and an issued and paid-up share
capital of Ringgit Malaysia Two Hundred Forty Seven Million Five
Hundred Seventy Nine Thousand (RM247,579,000) divided
into:
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(a)
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Three Hundred Thirty Thousand Three
Hundred and Twenty (330,320) ordinary shares of Ringgit Malaysia
Five Hundred (RM500) each; and
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One Hundred Sixty Four Thousand
Eight Hundred Thirty Eight (164,838) preference shares of Ringgit
Malaysia Five Hundred (RM500) each.
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Pursuant to a shareholders’
agreement dated 8 April 1998 (“ Initial OCM
Shareholders’ Agreement ”) between Vendor 2 and
the Purchaser, the parties had agreed to enter into a joint venture
to incorporate OCM and for their rights inter se in OCM to
be regulated by the terms of the Initial OCM Shareholders’
Agreement. By an agreement dated 20 September 2006 (“ OCM
Variation Agreement ”), Vendor 2 and the Purchaser agreed
to vary certain terms in the Initial OCM Shareholders’
Agreement. The Initial OCM Shareholders’ Agreement, as varied
and supplemented by the OCM Variation Agreement, shall hereafter be
referred to as the “ OCM Shareholders’ Agreement
”.
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In accordance with the terms of the
OCM Shareholders’ Agreement, Vendor 2 is the registered and
beneficial owner of One Hundred Sixty Five Thousand One Hundred and
Sixty (165,160) ordinary shares of Ringgit Malaysia Five Hundred
(RM500) each and Eighty Two Thousand Four Hundred and Nineteen
(82,419) preference shares of Ringgit Malaysia Five Hundred (RM500)
each in the capital of OCM (collectively, the “ Sale
Shares 3 ”) amounting to 50% of the issued and paid-up
share capital of OCM.
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The Vendors have agreed to sell and
the Purchaser has agreed to purchase Sale Shares 1, Sale Shares 2
and Sale Shares 3 (collectively, “ Sale Shares
”) upon the terms and conditions hereinafter set
out.
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NOW IT IS HEREBY
AGREED as
follows:
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In this Agreement, unless the
context requires otherwise:
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means the party so affected by a
term or condition imposed by an approving person or authority in
accordance with Clause 4.03 and in the event that a term or
condition affects any of OCM, OGM or OOM, the Purchaser or the
Vendors (as the case may be) shall be the Affected Party for the
purposes of this Agreement;
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means an entity Controlling,
Controlled by or under common Control with a party (as the case may
be), where “Control” and its derivatives means the
legal, beneficial or equitable ownership, directly or indirectly,
of 50% or more of the capital stock (or other ownership interest,
if not a corporation) of such entity ordinarily having voting
rights;
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means the agreements to be entered
into:
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amongst the relevant Vendor, the
Purchaser and each of OGM, OOM and OCM in respect of the
termination of each of the OGM Master Services Agreement, OOM
Master Services Agreement and OCM Master Services Agreement;
and
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between the relevant Vendor
Affiliate, and each of OGM, OOM and OCM in respect of the
termination of each of the OGM Secondment Agreement, OOM Secondment
Agreement and OCM Secondment Agreement; and
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between OGM and MEGlobal
International FZE in respect of the termination of the
distributorship agreement dated 11 February 1999 relating to
ethylene glycols between OGM and Union Carbide Customer Services
Pte Ltd (subsequently novated to MEGlobal International
FZE),
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each in the approved
terms;
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means a day (excluding Saturdays,
Sundays and gazetted public holidays in the Federal Territory of
Kuala Lumpur, Malaysia and New York, the United States of America)
on which banks generally are open in the Federal Territory of Kuala
Lumpur, Malaysia and New York, the United States of America for the
transaction of normal banking business with the general
public;
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means the completion of the sale and
purchase of the Sale Shares in the manner specified in Clause
5.01 ;
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means the statement to be prepared
by the respective external auditor of OGM, OOM and OCM in
substantially the form set out in Schedule 3 ;
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means the conditions precedent to
this Agreement as described in Clause 4.01 ;
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means the total consideration for
the Sale Shares as may be adjusted in accordance with Clause
5.04 and Schedule 2 , being the aggregate
of Consideration 1, Consideration 2 and Consideration 3;
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means the consideration for Sale
Shares 1, being the sum of United States Dollars Seventy Nine
Million (USD79,000,000) (" Initial Consideration 1 "),
subject to any adjustment in accordance with Clause 5.04 and
Schedule 2 ;
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means the consideration for Sale
Shares 2, being the sum of United States Dollars Three Hundred and
Eighty Three Million (USD383,000,000) (" Initial Consideration
2 "), subject to any adjustment in accordance with Clause
5.04 and Schedule 2 ;
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means the consideration for Sale
Shares 3, being the sum of United States Dollars One Hundred and
Ninety Eight Million (USD198,000,000) (" Initial Consideration
3 "), subject to any adjustment in accordance with Clause
5.04 and Schedule 2 ;
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means the requisite number and
proportion of Voting Parties as defined in (i) the Security Trust
and Intercreditor Deed dated 21 September 2004 and entered into by
OCM and OGM, amongst others, and (ii) the Security Trust and
Intercreditor Deed dated 21 September 2004 and entered into by OOM,
amongst others (collectively, the “ Security Deeds
”) as determined in accordance with the Security Deeds for
the purposes of the approvals, consents or agreements (as the case
may be) required pursuant to Clause 4.01(b) , and the
persons set out in Schedule 4 shall comprise all the Voting
Parties as at 30 June 2009;
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means the letter to be issued by The
Dow Chemical Company to OGM, OOM and OCM inter alia in respect of
The Dow Chemical Company's shareholding in Dow Chemical Pacific
Limited and entities to which the agreements listed below in
paragraphs (a) and (b) in the definition of the New Operational
Agreements, may have been assigned, novated or transferred, and
guaranteeing the performance under those agreements of Dow Chemical
Pacific Limited and such entities, in the approved
terms;
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means the letter to be issued by the
Vendors, The Dow Chemical Company and Global Industrial Corporation
to the Purchaser, OGM, OCM and OOM in respect of the limitations to
the liability of the Vendors, The Dow Chemical Company, Global
Industrial Corporation, the Purchaser, OGM, OCM and OOM and their
respective Affiliates (as applicable) in respect of any claims
arising from the OGM Secondment Agreement, OCM Secondment
Agreement, OOM Secondment Agreement, OGM Master Services Agreement,
OCM Master Services Agreement, OOM Master Services Agreement, OGM
Shareholders’ Agreement, OCM Shareholders’ Agreement
and OOM Shareholders’ Agreement prior to the termination of
the said agreements, in the approved terms;
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means the Malaysian Ministry of
International Trade and Industry;
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the product off-take agreement to be
entered into between the relevant Vendor Affiliate and
OCM;
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the technical services agreements to
be entered into between the relevant Vendor Affiliate (and Vendor 2
in respect of the agreement with OCM), and each of OGM, OOM and
OCM;
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the supplemental agreements to the
technology licence agreements to be entered into between Vendor 2
and each of OGM and OCM;
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the trademark agreements to be
entered into amongst the relevant Vendor Affiliates, Vendor 2 and
OCM; and
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the supplemental agreement to the
licence of complementary assets to be entered into
between Vendor 2 and OCM,
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each in the approved
terms;
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means the agreement dated 1
September 2000 entered into amongst OCM, the Purchaser and Vendor 2
for the provision of certain services and information by the
Purchaser and Vendor 2 to OCM;
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means the agreement dated 1
September 2000 entered into amongst OGM, the Purchaser and Vendor 1
for the provision of certain services and information by the
Purchaser and Vendor 1 to OGM;
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means the agreement dated 1
September 2000 entered into amongst OOM, the Purchaser and Vendor 2
for the provision of certain services and information by the
Purchaser and Vendor 2 to OOM;
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means the agreement dated 11
February 1999 entered into between Global Industrial Corporation (a
Vendor Affiliate) and OCM for the secondment of certain employees
to OCM;
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means the agreement dated 11
February 1999 entered into between Global Industrial Corporation (a
Vendor Affiliate) and OGM for the secondment of certain employees
to OGM;
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means the agreement dated 11
February 1999 entered into between Global Industrial Corporation (a
Vendor Affiliate) and OOM for the secondment of certain employees
to OOM;
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means Ringgit Malaysia, the lawful
currency of Malaysia;
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shall bear the meaning ascribed to
it in Recital J, and which shares are to be bought
and sold on the basis as set out in Clause 2 ;
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shall bear the meaning ascribed to
it in Recital C;
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shall bear the meaning ascribed to
it in Recital F;
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shall bear the meaning ascribed to
it in Recital I;
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shall bear the meaning ascribed to
it in Clause 2.03 ;
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means the date upon which the last
of the Conditions Precedent is fulfilled or waived;
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means United States Dollars, the
lawful currency of the United States of America;
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means the bank account of Vendor 1,
details of which are set out below:
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or such other bank account
designated in writing by Vendor 1 prior to Completion;
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means the bank account of Vendor 2,
details of which are set out below:
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or such other bank account
designated in writing by Vendor 2 prior to Completion;
and
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means an Affiliate of Vendor 1 or
Vendor 2.
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References herein to Clauses and
Schedules are to clauses in and schedules to this Agreement unless
the context requires otherwise and the Schedules to this Agreement
shall be deemed to form part of this Agreement.
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The expressions "the Vendors" and
"the Purchaser" shall, where the context permits, include their
respective successors and permitted assigns.
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The headings are inserted for
convenience only and shall not affect the construction of this
Agreement.
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Unless the context requires
otherwise (i) words importing the singular include the plural and
vice versa and words importing a gender include every gender; and
(ii) references to “RM” or “sen” shall be
taken as referring to amounts in the lawful currency of Malaysia,
and (iii) references to “USD” or “cents”
shall be taken as referring to amounts in the lawful currency of
the United States of America.
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A document expressed to be “in
the approved terms” means a document the terms of which have
been approved by or on behalf of the parties hereto and a copy of
which has been signed for the purposes of identification by or on
behalf of the parties.
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In consideration of the premises
herein:
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Vendor 1 shall sell as legal and
beneficial owner of Sale Shares 1; and
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Vendor 2 shall sell as legal and
beneficial owner of Sale Shares 2 and Sale Shares 3,
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and the Purchaser shall purchase the
Sale Shares free from all charges, liens and encumbrances
whatsoever and with all rights, benefits and advantages attaching
thereto as at Completion, for the Consideration. For the avoidance
of doubt, the Purchaser shall not be obliged to complete the
purchase of the Sale Shares unless the sale and purchase of all
(and not some only) of the Sale Shares can be completed
simultaneously in accordance with the provisions herein.
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The Purchaser hereby waives all
rights conferred on it by the OGM Shareholders’ Agreement,
OOM Shareholders’ Agreement, OCM Shareholders’
Agreement, the memorandum and articles of association of each of
OGM, OOM and OCM, and any other document, in respect of the sale
and purchase of the Sale Shares and hereby permits the sale and
purchase of the Sale Shares in accordance with the terms of this
Agreement.
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