Exhibit 10.22

 

SHAREHOLDERS’ AGREEMENT

 

THIS AGREEMENT is made on the 19th day of December, 2008. 

 

AMONG

 

(1)UNIQUE LOGISTICS HOLDINGS LIMITED, a private limited company incorporated in Hong Kong with company number 824517 and with registered office at Unit B&D, 4th Floor, Sunshine Kowloon Bay Cargo Centre, 59 Tai Yip Street, Kowloon Bay, Kowloon, Hong Kong Peoples Republic of China (“Unique”);

 

(2)WT SEA-AIR LIMITED, a private limited company incorporated in England and Wales with company number 02924145 and with registered office at Unit 3, Skyport Drive, Off Hatch Lane, Harmondsworth, Middlesex UB7 0LB (“WT”); and•

 

(3)WT UNIQUE LIMITED, a private limited company incorporated in England and Wales with company number 03920217 and with registered office at Unit 3, Skyport Drive, Off Hatch Lane, Harmondsworth, Middlesex UB7 0LB (“the Company”).

 

WHEREAS

 

(A)Pursuant to the latest discussions, both Unique and WT have agreed to establish the Company to perform the Business (“the Project”).

 

(B)Unique and WT have agreed that their respective rights as shareholders of the Company shall be regulated by the provisions of this Agreement and the Company has agreed with Unique and WT to comply with such of the matters contained in this Agreement insofar as they relate to it.

 

NOW it is hereby agreed as follows:

 

1.Interpretation

 

1.1In this Agreement, unless the contrary intention appears, the following definitions apply:

 

“Agreed Proportions” means 50 per cent in respect of Unique and 50 per cent in respect of WT;

 

“Board” means the board of Directors from time to time or the Directors present at a duly convened meeting of the Directors at which a quorum is present;

 

“Business” means the business of the Company as described in Clause 3.1 and such other business as the Parties may agree in writing should be carried on by the Company;

 

 

 

 

“Business Day” means a day on which banks in England are open for business (excluding Saturday and public holidays);

 

“Business Plan” means the annual business plan, revenue and capital budget of the Company as approved by the Board and Shareholders from time to time;

 

“Completion Date” means (a) the second Business Day after satisfaction of the Conditions; or (b) such other date as may be agreed in writing between WT and Unique;

 

“Conditions” means the conditions set out in clause 2.1;

 

“Director” means a director of the Company from time to time;

 

“Encumbrance” (including the temi “Encumber”) includes any mortgage, charge (fixed or floating), pledge, lien, hypothecation, guarantee, trust, right of set-off or other third party right or interest (legal or equitable) including any assignment by way of security, reservation of title or other security interest of any kind, howsoever created or arising, or any other agreement or arrangement (including a sale and repurchase agreement) having a similar affect;

 

“GBP” means the lawful currency of England;

 

“Group” in relation to a company (wherever incorporated), that company, any company of which it is a subsidiary (its holding company) and any other subsidiaries of any such holding company; and each company in a group is a member of the group. Unless the context requires otherwise, the application of the definition of Group to any company at any time will apply to the company as it is at that time;

 

“Memorandum and Articles of Association” means the Memorandum and Articles of Association of the Company as amended from time to time;

 

“Parties” means the parties to this Agreement and “Party” means any one of them;

 

“Person” includes a firm or other body of persons;

 

“Shares” means an ordinary share of £1 each in the share capital of the Company and “Shares” shall be construed accordingly;

 

“Shareholder” means either Unique or WT and “Shareholders” means both of them;

 

“Subsidiary” means a subsidiary of the Company if any and “Subsidiaries” shall be construed accordingly;

 

 

 

 

“Territory” means the places where the Company’s business is conducted as mutually agreed between Unique and WT;

 

“Unique Directors” means Directors appointed to represent Unique and

 

Unique Director means any one of them; and

 

“WT Directors” means Directors appointed to represent WT and WT Director means any one of them;

 

1.2Reference to a statute or statutory provision includes a reference to it as from time to time amended, extended or re-enacted.

 

1.3Words denoting the singular number also include the plural and vice versa.

 

1.4Unless the context otherwise requires, a reference to a clause or schedule is to a clause of or schedule to thi•s Agree•ment.

 

1.5The headings in this Agreement are inserted for convenience only and do not affect its construction.

 

1.6A reference to writing or written includes faxes and email.

 

1.7Any document referred to as being “in the agreed form” shall mean in a form agreed by the Parties at the date of this Agreement and initialed by or on their behalf for identification purposes.

 

2.Conditions

 

2.1Completion of this Agreement shall be conditional upon:

 

2.1.1the incorporation of the Company; and

 

2.1.2completion of a business purchase agreement between Unique and the Company relating to the acquisition of the business and assets of Unique Logistics International Limited; and

 

2.1.3each of Unique and WT having subscribed for, paid for in full at par value and having been being allotted 100,000 Shares.

 

2.2If the Conditions are not satisfied or waived by the date set out in clause 2.4, this Agreement shall cease to have effect immediately after that date except for:

 

2.2.1the provisions set out in clause 2.3; and

 

2.2.2any rights or liabilities that have accrued under this Agreement.

 

2.3Clauses 1, 2.2, 2.3, 25, 29, 30 and 31 shall continue to have effect notwithstanding failure to waive or satisfy the Conditions.

 

 

 

 

2.4WT and Unique shall use all reasonable endeavours to procure that the Conditions are satisfied or waived as soon as practicable and in any event no later than:

 

2.4.1Friday 3rd April 2009; or

 

2.4.2such later date as may be agreed in writing between WT and Unique.

 

2.5Subject to Clause 2.1, Unique and WT agree to finance, operate and manage the Company in the manner set out hereunder in this Agreement.

 

3.Business of the Company

 

  3.I The primary business of the Company is, unless the Shareholders shall otherwise agree, to carry on the business of providing international freight forwarding, customs brokerage, local delivery, pick and pack, distribution, warehousing and value-added logistics related services.

 

3.2The Business shall be performed in the best interest of the Company on sound commercial profit making principles and good business practice and subject thereto and in accordance with the Business Plan from time to time so as to generate maximum achievable profits available for distribution to the Shareholders.

 

3.3In addition to carrying out the Business in the Territory, Unique and WT shall look into other opportunities of mutually beneficial co-operation between their respective Groups in their global networks.

 

4.Completion

 

4.1Completion of this Agreement 1s conditional upon the satisfaction of the Conditions (“Completion”).

 

4.2Completion shall take place at 4:00p.m. London time on the Completion Date at:

 

4.2.1the offices of Wallace LLP; or

 

4.2.2any other place agreed in writing by the Parties.

 

4.3At Completion, the Parties shall procure that such shareholder and Board meetings are held as may be necessary to:

 

4.3.1adopt new Articles of Association in the agreed form;

 

4.3.2designate the current Directors, Neil McGlynn and Srivinivas Venkatesh as WT Directors and appoint Neil McGlynn as the initial chairman of the Board;

 

 

 

 

4.3.3appoint Gary Morter as an additional WT Director; and

 

4.3.4appoint Richard Lee, Ching Wing Ha and David Cheung as initial Unique Directors.

 

5.Appointment of Directors and Board Meetings

 

5.1The maximum number of Directors holding office of the Company at any time shall be six (6) unless otherwise agreed in writing by the Shareholders.

 

5.2Directors may be appointed or removed only in a general meeting by ordinary resolution at the request of any Shareholder by giving the required notice to the Company.

 

5.3Unique shall be entitled to appoint and remove a maximum of three (3) directors. Any Director so appointed• shall be designated as a Unique Director.

 

5.4WT shall be entitled to appoint and remove a maximum of three (3) Directors. Any Director so appointed shall be designated as a WT Director.

 

5.5A notice of appointment or notice of removal of a Director pursuant to this Clause shall take effect upon lodgment at the registered office of the Company or on delivery to the secretary of the Company.

 

5.6Either Shareholder shall be entitled to remove any of its representative Directors at any time and to appoint a person to replace any representative Director so removed.

 

5.7Every Director appointed pursuant to this Clause shall hold office until he resigns or is removed in the manner provided hereunder or dies or vacates office. The Board shall not have any power at any time to appoint any person as a Director either to fill a casual vacancy or as an addition to the Board.

 

5.8The Directors shall not be subject to retirement by rotation and accordingly any contrary provision contained in the Memorandum and Articles of Association of the Company shall not apply and all other references in the regulations to retirement by rotation shall be disregarded. ·

 

5.9No Director shall be appointed otherwise than as provided in this Clause. Any contrary provision contained in the Memorandum and Articles of Association of the Company shall not apply.

 

5.10The post of chairman of the Board shall be held in alternate years by a WT Director and a Unique Director. The initial chairman shall be Neil McGlynn. The chairman shall not have a casting vote. If the appointed chairman, from time to time, is not present at a meeting of the Board, the Shareholder who appointed him shall be entitled to appoint another Director appointed by it to act as chairman at that meeting.

 

 

 

 

5.11Unless otherwise agreed, the Directors shall procure that meetings of the Board _be convened and held at least twice a year and that a written agenda specifying the matters to be raised at any Board meeting shall be sent to all Directors (or their alternates) entitled to receive notice of any such meeting together with the notice convening the meeting not less than five (5) Business Days prior to the date of the meeting. Notwithstanding the above, any Director may call a Board meeting on at least five (5) Business Days’ prior notice stating the purpose of the meeting.

 

5.12The quorum for a meeting of the Board shall be at least two (2) Directors, which consist of at least one (1) Unique Director and one (1) WT Director. If a quorum for a meeting of the Board is not met in two consecutive properly noticed Board meetings duly called and held, then the second Board meeting may proceed, and the Directors who do attend may take any action required, despite the technical lack of quorum.

 

5.13The Directors shall exercise all rights available to them in relation to the Company to procure (so far as they are able to do so) that during the term of this Agreement:

 

5.13.1the Board determines the general policy of the Company (subject to the express provisions of this Agreement), including the scope of the activities and operations of the Company and that the Board reserves to itself all matters involving major or unusual decisions that are not expressly reserved to the Shareholders;

 

5.13.2telephonic meetings of the Board will be permitted provided that participants acknowledge orally that they can speak to and hear each other and written resolutions including faxed written resolutions signed by all Directors shall be valid as if passed at a duly constituted meeting;

 

5.13.3the Company shall comply with the provisions of its Memorandum and Articles of Association; and

 

5.13.4the registered offices of the Company shall be such place as the Directors shall agree in writing.

 

5.14For the purpose of the foregoing, an alternate Director present at any Board meeting shall be treated as having been appointed by the Shareholder at whose instance the Director who appointed him was appointed (unless the appointee is another Director in which case he is not to be so treated).

 

 

 

 

5.15Unless otherwise agreed in writing by the Shareholders or required under this Agreement, each Director will comply with Clause 25 of this Agreement as if it were a Party hereto.

 

5.16Any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all the Directors consent to such action in writing.

 

6.Conduct of the Company’s affairs

 

6.1The Shareholders shall exercise all rights available to them in relation to the Company and the Company shall do everything necessary to procure (so far as they are able to do so) that during the term of this Agreement

 

6.1.1the business of the Company eonsists exclusively of the Business;

 

6.1.2the Shareholders are given full opportunity to examine the books and accounts kept by the Company, are supplied with all relative information, including monthly management accounts and operating statistics and such other trading and financial information in such form as they reasonably require to keep each of them properly informed about the business of the Company and its Subsidiaries and generally to protect their interests;

 

6.1.3the auditors of the Company shall be Brebners or such other firm of chartered accountants as the Shareholders agree in writing;

 

6.1.4the Company complies with the provisions of its Memorandum and Articles of Association to the extent that they are not inconsistent with any provisions set out herein; and

 

6.1.5any company which becomes a Subsidiary adopts a memorandum and articles of association in a form approved by the Shareholders in writing.

 

7.Matters requiring consent of the Shareholders

 

7.1The Shareholders shall procure (so far as it is possible in the exercise of their rights and powers) that the Company shall not, without the prior written unanimous consent of the Shareholders:

 

  7.1.1 cease to be a private company or materially change the nature of its business from the Business;

 

7.1.2amend its Memorandum or Articles of Association;
   
 7.1.3sell transfer, assign, dispose of, licence or sub-licence any material intellectual property rights;

 

 

 

 

7.1.4create any fixed or floating charge, lien (other than a lien arising by operation of law) or other Encumbrance over the whole or any part of its undertaking, property or assets, except for the purpose of securing indebtedness to its bankers for sums borrowed in the ordinary and proper course of its business;

 

7.1.5borrow (except from the Company’s bankers in the ordinary and proper course of the Business) in excess of a maximum aggregate sum outstanding at any time of GBPl 0,000;

 

7.1.6make a loan or advance of any amount or give credit (other than normal trade credit) in excess ofGBPl0,000 to any Person, apart from deposits with bankers which ke repayable upon the giving of not more than five (5) Business Days’ notice;

 

7.1.7give a guarantee or indemnity to secure the liabilities or obligations of any Person;

 

7.1.8sell, transfer, lease, assign, or otherwise dispose of a material part of its undertaking, property or assets (or any interest in them), or contract to do so otherwise than in the ordinary and proper course of its business;

 

7.1.9Encumber, transfer, sell, dispose of, subscribe to, merge or amalgamate with or otherwise acquire the legal or beneficial ownership interest (in whole or in part) in any shares in the capital of any other company or undertaking;
   
 7.1.10enter into or vary a contract, arrangement or commitment involving expenditure on capital account or the realisation of capital assets if the amount or the aggregate amount of the expenditure or realisation by the Company would exceed GBP50,000 in any one year or in relation to any one project, for the purpose of this paragraph the aggregate amount payable under any contract for hire, hire purchase or purchase on credit sale or conditional sale terms; is to be treated as capital expenditure incurred in the year in which this Agreement is entered into;

 

7.1.11institute, settle or agree to settle any legal proceedings relating to the Business, except debt collection in the ordinary course of business;

 

7.1.12engage a new employee at remuneration which could exceed a rate of GBP30,000 per annum, except those already included in the approved Business Plan per Clause 7.1.30;

 

 

 

 

7.1.13increase the remuneration of an employee of the Company by a rate that exceeds GBP3,000 per annum, except those already included in the approved Business Plan per Clause 7.1.30;

 

7.1.14pay any management charge to a Shareholder other than on arm’s length terms;

 

7.1.15appoint or dismiss a Director except in accordance with the rights conferred on the Shareholders under Clause 5 to appoint and remove Directors;

 

7.1.16appoint a committee of the Directors or a local board or delegate any of the powers of the Board to.a committee or local board;

 

7.1.17take or agree to take a leasehold interest in or license over land;

 

7.1.18issue any Shares or create any new Shares;

 

7.1.19alter the rights attaching to any class of shares of the Company;

 

7.1.20consolidate, sub-divide or convert any of the Company’s share capital;

 

7.1.21issue renounceable allotment letters or permit any person entitled to receive an allotment of shares to nominate another Person to receive the allotment except on terms that no renunciation or nomination shall be registered unless the renouncee or Person nominated is approved by the Board;

 

7.1.22create or acquire a Subsidiary or disposes of any shares in a Subsidiary;

 

7.1.23enter into a partnership or to enter into any profit sharing agreement other than in ordinary course of normal business;

 

7.1.24do or permit to be done any act or thing whereby the Company may be wound up (whether voluntarily or compulsorily), or enter into any compromise or arrangement under the Insolvency Act 1986 or any similar legislation in any other relevant jurisdiction;

 

7.1.25issue securities convertible into Shares or debentures, or share warrants or options in respect of Shares;

 

7.1.26enter into a contract, transaction or arrangement except in the ordinary and proper course of the business on arm’s length terms;

 

7.1.27acquire, purchase or subscribe for shares, debentures, mortgages or securities (or any interest in any of them) in any Person;

 

 

 

 

7.1.28create a contract or obligation or renew or vary the terms of an existing contract or obligation, in money or money’s worth to any Shareholder or to a holding company of a Shareholder or to any other subsidiary of such a holding company;

 

7.1.29hold a meeting of Shareholders or purport to transact any business at a meeting unless there are present duly authorised representative or proxies for each of the Shareholders;

 

7.1.30approve the Business Plan for the Business;

 

7.1.31change the name of the Company;

 

7.1.32change the Company’s auditors, lawyers or bankers from those appointed at the date of thi Agreement or make any alteration to or replace the Company’s bank mandate as in existence at the date of this Agreement.

 

8.Staff

 

8.1If the Board considers necessary for the proper conduct of the Business, any of the Shareholders may (if requested by the Board) appoint executive personnel (“the Executive”) to the Company on a full time basis and on terms to be agreed between the Shareholders.

 

8.2If the Board determines that the appointed Executive is not suitable for employment in connection with the Business, it may require the Shareholder who has appointed such Executive to procure for the resignation of such Executive and to take such other steps as it may deem necessary or expedient to replace him.

 

8.3All salaries, expenses and other benefits to which the Executive is entitled and all necessary employee’s pension and national insurance contributions shall, except otherwise agreed between the Shareholders , be borne by the Company.

 

9.Financing of the company and guarantee given by the Shareholders

 

9.1The Parties agree that the initial working capital requirements of the Company shall be satisfied by the subscription at par value for 100,000 Shares by each of Unique and WT. The Directors shall procure that if the Company requires any additional financing, the Board shall seek to obtain such finance by way of bank overdraft facility or other commercial borrowing from third parties.

 

9.2Following the date hereof, no Shareholder shall be under any obligation to subscribe for Shares or loan stock, to lend money to the Company, to guarantee any obligations of the Company or to indenmify any third party in respect of the obligations or liabilities of the Company.

 

 

 

 

10.Disposal or charging of the Shares

 

Neither of the Shareholders shall, except with the prior written consent of the other, create or permit to subsist any pledge, lien or charge over, or grant any option or other rights over or sell or dispose of any interest in, any of the Shares it held.

 

11.Transfer of Shares

 

11.1No Shareholder shall transfer, grant any security interest over, Encumber or otherwise dispose of or give any person any rights in or over any Share or interest in any Share unless it is permitted or required under this Agreement and carried out in accordance with the terms of this Agreement. If a Shareholder transfers or Encumbers (or purports to transfer or Encumber) any Shares other than in accordance with this Clause 11, it shall be deemed to have served a Transfer Notice.

 

11.2A Shareholder may do anything otherwise prohibited by this Clause 11 if all other Shareholders have consented to it in writing.

 

11.3Subject to Clauses 13 and 14, a Shareholder may transfer all (but not some only) of its Shares to any person if the parties to such transaction follow the steps in this Clause and the offer for the Shares is a bona-fide third party offer negotiated in good faith on an arms’ length basis.

 

11.4The Shareholder wishing to transfer its Shares (“the Disposing Shareholder”) shall give an irrevocable notice (“the Transfer Notice”) to the Company and the other Shareholder (“the Continuing Shareholder”) of the details of the proposed transfer including:

 

11.4.1if it wishes to sell its Shares to a third party, the name and address of the proposed transferee; and

 

11.4.2the price (in cash) at which it wishes to transfer its Shares.

 

11.5The Continuing Shareholder shall have the preferential right, but not the obligation, to acquire such Shares on the terms set forth in the Transfer Notice and this Clause 11.
  
11.6If the Continuing Shareholder gives notice to the Disposing Shareholder within ten (! 0) Business Days of deemed receipt of the Transfer Notice that it wishes to buy all (but not part only) of the Disposing Shareholder’s Shares, the Continuing Shareholders shall have the right to do so at the price specified in the Transfer Notice. If the Continuing Shareholder does not deliver a notice pursuant to this Clause 11.6 it shall be deemed to have waived such right.

 

 

 

 

11.7The Continuing Shareholder is bound to buy all the Disposing Shareholder’s Shares when it gives notice to the Disposing Shareholder under Clause 11.6 that it wishes to do so. The sale and purchase of Shares shall take place on the terms set out in Clause 12.

 

11.8If at the expiry of the period specified in Clause 11.6, the Continuing Shareholder has not notified the Disposing Shareholder that it wants to buy the Shares, the Disposing Shareholder may transfer all its Shares to the buyer identified in the Transfer Notice at a price not less than the price specified in that notice provided that it does so within twenty (20) Business Days of the expiry of the period specified in Clause 11.6.

 

11.9The Disposing Shareholder shall pr;cure that, in relation to the Shares being sold, any buyer of the Shares who is not already a Shareholder and therefore a Party to this Agreement, shall enter into this Agreement on completion of the sale of such Shares with the Continuing Shareholders before completion pursuant to the Deed of Adherence, a form of which is set forth on Schedule 1.

 

12.Completion of the Sale and Purchase of Shares

 

12.1This Clause applies only to transfers between the Shareholders pursuant to Clause 11.

 

12.2The sale of Shares under this Agreement shall be completed after the Company and the Continuing Shareholders (having received a Transfer Notice) give notice to the Disposing Shareholder that it wishes to buy all the Disposing Shareholder’s Shares under Clause 11.6 and 11.7.

 

12.3The Shares shall be sold with all rights that attach, or may in the future attach, to them.

 

12.4The Shareholder, or the Company, as applicable, buying the Shares is not obliged to complete the purchase of any of the Shares being sold unless the purchase of all the Shares being sold is completed simultaneously.

 

12.5If the Disposing Shareholder fails to complete the transfer of Shares as required for completion of any sale under this Clause, such failure shall be deemed a breach of this Agreement and the Company shall immediately cause the transfer and sale of the Shares at the price set out in the Transfer Notice. As such, all the parties hereto agree that the Company:

 

12.5.1is irrevocably authorised to appoint any person to transfer the Shares on the Disposing Shareholder’s behalf and to do anything else that the Shareholder, or the Company, as applicable, buying the Shares may reasonably require to complete the sale; and

 

 

 

 

12.5.2may receive and hold the price set out in the Transfer Notice in trust for the Disposing Shareholder, giving a receipt that shall discharge the Shareholder, or the Company, as applicable, buying the Shares.

 

13.Drag Along

 

13.1After going through the pre-emption procedure set out in Clause 11, if a Shareholder (the “Selling Shareholder”) wishes to transfer all its Shares to any person who is not a Shareholder (“a Third Party”) then the Selling Shareholder shall have the option (“a Drag-along Option”) to require the other Shareholder (“the Called Shareholder”) to transfer all its Shares to the Third Party or as the Third Party sh;ll direct at a price per Share and on terms and conditions, including as evidenced by ancillary agreements or arrangements such as non-competition or consultancy arrangements (“the Terms and Conditions”), which is no less favourable than the price per Share at which the Selling Shareholder is selling its Shares.

 

13.2The Selling Shareholder may exercise the Drag-along Option by giving written notice (“a Drag-along Notice”) to the Called Shareholder specifying that the Called Shareholder is required to transfer its Shares, the price per Share at which they are to be transferred, the Third Party to whom they are to be transferred, the Terms and Conditions and the proposed date of transfer.

 

13.3Once issued, a Drag-along Notice shall be irrevocable save that it shall lapse if for any reason the Selling Shareholder does not transfer all of its Shares to the Third Party within thirty (30) Business Days of the giving of such notice.

 

13.4Upon exercise of the Drag-along Option, the Called Shareholder shall be bound to sell its Shares for the price and terms and Conditions specified in the Drag-along Notice to the Third Party. Completion of the sale of such Shares shall take place on a date specified for that purpose by the Selling Shareholder to the Called Shareholder except that:

 

13.4.1the Selling Shareholder may not specify a date which is less than five (5) Business Days after the giving of the Drag-along Notice; and

 

13.4.2the date so specified by the Selling Shareholder shall be the same date as the date proposed for completion of the sale of the Selling Shareholder’s Shares unless the Called Shareholder and the Selling Shareholder agree otherwise.

 

 

 

 

13.5For the period of time that a Drag-along Notice is served until completion of the sale of the Called Shareholder’s Shares in accordance with the Drag-along Option (or, if earlier, the lapsing of the Drag-along Option) the Called Shareholder shall use its best efforts to procure that it shall as a Shareholder, or its directors and all other persons shall, take all action necessary or desirable (including as it relates to any votes at a meeting of the Company or the Board) in order to effect any and all of the actions contemplated by this Clause 13.

 

14.TagAlong

 

14.1After going through the pre-emption procedure set out in Clause 11, the provisions of this Clause 14 shall apply if a Shareholder proposes to transfer all of its Shares (“a Proposed Transfer”) to a bona fide arm’s length purchaser (“a Proposed Buyer”). •

 

14.2Before making a Proposed Transfer, the selling Shareholder shall procure that the Proposed Buyer makes an offer (“,an Offer”) to the other Shareholder to purchase all of the Shares held by the other Shareholder for a consideration in cash per Share that is at least equal to the highest price per Share offered by the Proposed Buyer in the Proposed Transfer (“the Specified Price”) such that if a Proposed Buyer proceeds with a Proposed Transfer, and the other Shareholder wishes to participate with the Proposed Transfer, the other Shareholder must sell all of its Shares and the Proposed Buyer will ultimately own all of the Shares.

 

14.3The Offer shall be given by written notice (“an Offer Notice”), at least ten (10) Business Days (“the Offer Period”) before the proposed sale date (“the Sale Date”). To the extent not described in any accompanying documents, the Offer Notice shall set out:

 

14.3.1the identity of the Proposed Buyer;

 

14.3.2the purchase price and other terms and conditions of payment;

 

14.3.3the Sale Date; and

 

14.3.4the number of Shares proposed to be purchased by the Proposed Buyer (“the Offer Shares”).

 

14.4If the Proposed Buyer fails to make the Offer to all holders of Shares in accordance with Clause 14.2 and 14.3, the selling Shareholder shall not be entitled to complete the Proposed Transfer and the Company shall not register any transfer of Shares effected in accordance with the Proposed Transfer.

 

 

 

 

14.5If the Offer is accepted by the other Shareholder (“the Accepting Shareholder”) within the Offer Period, the completion of the Proposed Transfer shall be conditional on completion of the purchase of all the Offer Shares held by the Accepting Shareholder.

 

14.6The Proposed Transfer is subject to the pre-emption provisions of Clause 11, but the purchase of Offer Shares from the Accepting Shareholder shall not be subject to those provisions.

 

15.Exercise of voting rights

 

15.1Each Shareholder shall:

 

15.1.1exercise all voting rights and powers available to it in relation to the Company so as to give full effect to the terms of this Agreement including, where appropriate,., the carrying into effect of the terms as if they were embodied in the Company’s Memorandum and Articles of Association;

 

15.1.2procure that the Directors nominated by it (insofar as the Director is able to do so) support and implement all reasonable proposals put forward to the Board for the proper development and conduct of the Business as contemplated in this Agreement;

 

15.1.3procure that all third parties directly or indirectly under its control refrain from acting in a manner which hinders or prevents the Company from carrying on the Business in a proper and reasonable manner; and

 

15.1.4generally use its best endeavours to promote the Business and the interests of the Company and any of its Subsidiaries.

 

15.2For the avoidance of doubt, the provisions of clause 15.1 shall not prevent WT from carrying on its business in any manner.

 

16.Non-competition restrictions

 

16.1Neither of the Shareholders shall, whilst it is beneficially interested in any Shares or for a period of two years from the date on which it ceases to be beneficially interested in any Shares (“the Non-Solicitation Period”) and without the prior written consent of the other Shareholder, either by itself or through its directors, officers or employees, do or permit to be done any of the following:

 

16.1.1either on its own account or in conjunction with or on behalf of any other person, solicit or entice away or attempt to solicit or entice away from the Company any person who is or has at any time within one year prior to the commencement of the Non-Solicitation Period been a customer, client, identified prospective customer or client, agent or correspondent of the Company or in the habit of dealing with the Company;

 

 

 

 

16.1.2either on its own account or in conjunction with or on behalf of any other person, employ, solicit or entice away or attempt to employ, solicit or entice away from the Company any person who is or shall have been at the date of, or within one year prior to the commencement of the Non-Solicitation Period, an officer, manager, consultant or employee of the Company whether or not such person would commit a breach of contract by reason of leaving such employment.

 

16.2Each undertaking in Clause I6.1 sh!tll be construed as separate or independent of the other undertakings so that, if one or more is held to be invalid void or unenforceable, the remaining undertakings shall be valid to the extent that they are not affected.

 

16.3The provisions of Clause 16.1 and 16.2 shall not apply to WT in relation to the business carried on by WT or any of its subsidiaries from time to time.

 

17.Warranties
  
17.1.The Company warrants to the Shareholders that except as disclosed in writing to each other prior to the execution ofthis Agreement:

 

 17.1.1no share capital of the Company is under option or agreed to be put under option;
   
17.1.2the Company has no loan capital; and

 

17.1.3all returns, particulars, resolutions and other documents required to be filed with the Registrar of Companies have been duly filed by the Company and that all legal requirements in connection with the incorporation, registration and maintenance of the Company and issues of Shares have been satisfied and duly complied with by the Company.

 

18.Dividend and distribution policy

 

Subject to the circumstances prevailing at the relevant time including, in particular, the working capital requirements of the Company and the Company’s banking obligations, the Company shall distribute by way of dividends a minimum of 50% of its trading profits after tax in accordance with the articles of association of the Company in respect of each financial year such profits as are then lawfully available for distribution as soon as the audited account of the latest fiscal year is available, or June 30th, whichever is earlier.

 

 

 

 

19.Pre-agreement for IPO or corporate project opportunities

 

19.1In the event that Unique and/or any of its affiliates, subsidiaries and related companies within the Unique Group of companies (“the Unique Group”) shall contemplate any future corporate project of the Unique Group (“the Corporate Project”) including but not limited to an initial public offering, or an alliance, or other merger and acquisition transactions involving any or all of the members of the Unique Group, the Parties hereby agree that the Business in the Territory operated by the Company shall form part of the business of the Unique Group for the purposes of any of these Corporate Projects.

 

19.2If the Corporate Project requires 100% ownership of Unique’s subsidiaries, affiliates and/or joint venture comp es to be integrated into it, Unique will purchase WT’s shares based on the same valuation terms receivable by Unique Group under the Corporate Project, less all relevant costs (professional fees, stamp duty, travel and meeting expenses, etc.) involved in the Corporate Project that will be apportioned pro rata to every member office or entity on a fair and reasonable basis. In the event the valuation terms under the Corporate Project (net of project expenses) is less than 5 times multiple of the previous financial year’s EBIT of the Company, Unique shall pay the difference to WT to ensure that under no circumstances the value of WT’s shares integrated into the Project will be lower than 5 times multiple of the previous financial year’s EBIT (earnings before interest and tax) of the Company, multiplied by WT’s percentage shareholding in the Company.

 

20.Default

 

20.1If either Shareholder commits or suffers an event of default, the other Shareholder shall be entitled, within twenty (20) Business Days of its becoming aware of the occurrence of the Event of Default, to require the defaulting Shareholder to sell all (but not some only) of the Shares held or beneficially owned by the defaulting Shareholder for the Prescribed Price. The option shall be exercised by delivering written notice to the defaulting Shareholder stating that the option is exercised.

 

20.2If the option is exercised, the defaulting Shareholder (the “Transferor”) shall deliver to the other Shareholder, within 30 days of the date of the Prescribed Price being agreed or determined under Clause 20.4.2, a duly executed transfer of all the Shares held or beneficially owned by it in favour of the other Shareholder (or as it may direct) (the “Transferee”) upon full payment to the Transferor in GBP of the Prescribed Price. The Shares which are transferred shall be deemed to be sold by the Transferor to the Transferee as beneficial owner with effect from the date of the transfer, free from any lien, charge or encumbrance and with all rights attaching to them as at the date of exercise of the option.

 

 

 

 

20.3The Specified Experts shall be instructed to determine which of the Shareholders should bear, or in what proportions they should share, such experts’ costs of certifying the Prescribed Price. In making their determination, the Specified Experts shall have regard to the efforts made by each of the Shareholders to agree on the Prescribed Price under Clause 20.4.2.

 

20.4For the purpose of this Clause:

 

20.4.1an “Event of Default” is co’mmitted or suffered by either Shareholder if:

 

20.4.1.1the other Shareholder commits a material breach of its obligations under this Agreement and, in the case of a breach capable of remedy, fails to remedy it within fifteen (15) Business Days of being specifically required in writing to do so by the non defaulting Shareholder, or

 

20.4.1.2a distress, execution, sequestration or other process is levied or enforced upon or sued out against the other Shareholder’s property which is not discharged within I 0 Business Days; or

 

20.4.1.3the other Shareholder is unable to pay its debts in the normal course of business or being declared bankrupt or served as a notice of bankruptcy; or

 

20.4.1.4the other Shareholder ceases or threatens to cease wholly or substantially carrying on its business, otherwise than for the purpose of a reconstruction or amalgamation without insolvency previously approved by the other Shareholder (which approval shall not be unreasonably withheld); or

 

20.4.1.5an encumbrance takes possession of or a receiver or trustee is appointed over the whole or any part of the other Shareholder’s undertaking, property or assets; or

 

 

 

 

20.4.1.6an order is made or a resolution is passed for the winding up of the other Shareholder, otherwise than for the purpose of a reconstruction or amalgamation without insolvency previously approved by Shareholder not in default (which approval shall not be unreasonably withheld);

 

20.4.2the ‘Prescribed Price’ means such sum in respect of the Shares forming the subject matter of the option as may be agreed between the Shareholders within fifteen (15) Business Days of the date of the notice exercising the option or (in default of agreement between them) such sum as the Specified Experts certify to be; in their opinion, the fair value of those Shares as between a willing buyer and a willing seller contracting on arm’s length terms, having regard to the fair value of the Business as a going concern as at the date of the notice exercising the option, but wift1out taking into account (if it is the case) that the relevant Shares represent a minority interest in the Company; and

 

20.4.3the ‘Specified Experts’ means the auditors of the Company or, if they are unwilling to act in the matter, such firm of accountants as, on a request by either of the Shareholders the making of which is promptly notified to the other, is nominated by the President from time to time, of the Institute of Chartered Accountants in England and Wales.

 

21.Conflict with Memorandum and Articles of Association

 

In the event of any ambiguity or conflict arising between the terms of this Agreement and those of the Memorandum and Articles of Association of the Company, the terms of this Agreement shall prevail as between the Shareholders but not so as to amend the Memorandum and Articles of Association.

 

22.Protection of name

 

22.1WT shall not use or permit the use of the name or any corporate or trading name including or similar to the words “Unique” or “ULI” or “Unique Logistics” or “Unique Logistics International”.

 

22.2Unique should not use or permit the use of the name or any corporate or trading name including or similar to the words “WT”, “WT Sea Air”, “WT Air”, “WT Shipping”, “WT Air Cargo” or “WT Sea Air Installation”.

 

22.3Following the winding up of the Company or the Company ceasing to trade, neither of the Shareholders shall re-use the Company’s name.

 

 

 

 

23.Partnership

 

23.1None of the provisions of this Agreement shall be deemed to constitute a partnership, association, fiduciary relationship or trust between the Parties or as authorising any Party to act as agent of another Party for any purpose whatsoever.

 

23.2Neither of WT or Unique has the authority to bind the other in any way for business beyond the scope of business of the Company as defined under the terms of this Agreement.

 

24.Costs

 

All costs, legal fees and other expenses incurred in the preparation and execution of this Agreement shall be borne by the Shareholders in the Agreed Proportions.

 

25.Confidentiality

 

25.1For the purposes of this Agreement “Restricted Information” means in relation to each Party (including any Director, manager, officer, employee or other representative of that Party) (“the Holder”) any non-public, confidential or proprietary information which is disclosed to that Party by another Party (“the Informant”) pursuant to or in connection with this Agreement with respect to the Business or the Company, whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential.

 

25.2The Holder undertakes with the Informant that, except as provided by Clause 11.3 or as authorised in writing by the Informant, it shall at all times during the continuance of this Agreement and following its termination:

 

25.2.1use its commercially reasonable endeavours to keep confidential all Restricted Information;

 

25.2.2not disclose any Restricted Information to any other person other than in connection with the Business or in fulfilling its obligations as a Shareholder or a member of the Board;

 

25.2.3not use any Restricted Information for any purpose otherwise than as contemplated by and subject to the terms of this Agreement;

 

25.2.4not make any copies of, record in any way or part with possession of any Restricted Information; and

 

25.2.5use commercially reasonable efforts to ensure that none of its Directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of Clause 25.2.1, 25.2.2, 25.2.3 or 25.2.4.

 

 

 

 

25.3The Holder may:

 

25.3.1disclose any Restricted Information to:

 

25.3.1.lany sub-contractor, supplier or licensee of the Holder with a need to know;

 

25.3.1.2any bona fide transferee of the Holder’s Shares;

 

25.3.1.3any governmental or other authority or regulatory body including the UK Listing Authority the London Stock Exchange pie and the Panel on Takeovers and Mergers that has ordered such disclosure, but only following prior written notice to tli1e other parties; or

 

25.3.1.4any employees of the Holder or of any of the persons referred to in sub-Cl,mse 25.3.1.1 to 25.3.1.3 with a need to know, to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case (except where the disclosure is to any such body as is mentioned in Clause 25.3.1.3 above or any employees of any such body) subject to the Holder first obtaining a written undertaking in favour of the Informant from the person in question, as nearly as practicable in the terms of this Clause, to keep the Restricted Information confidential and to use it only for the purposes for which the disclosure is made, and submitting such undertaking to the Informant; or

 

25.3.2use any Restricted Information for any purpose, or disclose it to any other person, to the extent only that:

 

25.3.2.1the Holder can demonstrate from its written records that it was known to the Holder at the time when it was disclosed by the Informant;

 

25.3.2.2after being disclosed by the Informant it is disclosed to the Holder by any other person otherwise than in breach of any obligation of confidentiality owed to the Informant;

 

25.3.2.3it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of the Holder, provided that in doing so the Holder does not disclose any part of that Restricted Information which is not public knowledge;

 

 

 

 

25.3.2.4is independently acquired or developed by the Holder as a result of work carried out by the Holder or an employee or contractor of such Party to whom no disclosure of such confidential information has been made;

 

25.3.2.5is disclosed with appropriate provision for confidentiality in a judicial or arbitration proceeding to enforce such Party’s rights under this Agreement;

 

25.3.2.6is disclosed as required by court order, or as otherwise required by law or regulation; or

 

25.3.2.7is furnished by the Informant to a third party without a similar restriction on the third party’s rights.

 

25.4The provisions of this Clause 25 shall continue in force in accordance with their terms, until the earlier of (a) two (2) years after the termination of this Agreement or (b) two (2) years after such Shareholder ceasing to hold any Shares.

 

25.5The Parties understand and acknowledge that any Restricted Information disclosed by a Party to any member of its Group shall be and remain the property of the Informant, and that neither the Holder nor any member of the Party’s Group shall have any interest in or right to use such information except as specifically agreed to in writing by the Informant.

 

26.Duration

 

26.1Neither of the Shareholders shall be entitled to enforce any provision of this Agreement, apart from Clause 22 and Clause 25 and except in respect of accrued rights, once it has ceased beneficially to own any of the Shares.

 

26.2This Agreement shall terminate forthwith if:

 

26.2.1the Company becomes insolvent (except by reason solely of its inability to repay loans or other sums outstanding to the Shareholders) or goes into liquidation (except for the purposes of a bona fide reconstructions or amalgamation pursuant to which the company resulting therefrom agrees to be bound by or assume the obligations of the Company);

 

26.2.2the Company shall have an administrator appointed or any person shall take any steps including filing documents with any court of competent jurisdiction and giving notice of intention to appoint an administrator for the purpose of placing the Company in administration or the C’,Qml)at\’)’ \\\la\\ \\a’le an. amn.’ln.1\\\ta\’we i:ece’l’let, i:ece’l’let \lt mal\aie, appointed over any part of its assets or undertaking or shall suffer any similar event in any jurisdiction; or

 

 

 

 

26.2.3all the Shares shall be held by one Shareholder.

 

26.3The provisions of clause 26.2 shall be without prejudice to any right or obligation of any shareholder arising under this Agreement or to any claim against any Shareholder which is outstanding at the time of any person ceasing to hold any shares or upon the termination of this Agreement and shall not affect any provision of this Agreement which is expressly or by implication provided to come into effect or to continue in effect after such termination.

 

26.4Despite the expiration or terminatio•n of this Agreement, it shall continue to

 

bind the Shareholders to such extent and for so long as may be necessary to give effect to the rights and obligations embodied in it.

 

27.Assignment

 

Save as otherwise provided herein, neither of the Shareholders shall assign or transfer, or purport to assign or transfer, any of its rights or obligations under this Agreement.

 

28.Successors and assigns

 

This Agreement shall operate for the benefit of and be binding on the successors in title of each Shareholder.

 

29.Waiver, forbearance and variation

 

  29.I The rights of the Parties under this Agreement shall not be prejudiced or restricted by any indulgence or forbearance extended to another Party. No waiver by any Party in respect of breach shall operate as a waiver in respect of any subsequent breach.

 

  29.2 This Agreement shall not be varied or cancelled, unless the variation or cancellation is expressly agreed in writing by a duly authorised director of each Party.

 

30.Governing law

 

  30.1The construction, validity and performance of this Agreement shall be governed in all respects by the laws of England.

 

  30.2In relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement (“Proceedings”) each of the parties irrevocably submits to the exclusive jurisdiction to the English Courts and waives any objection to proceedings in such courts on the grounds that the proceedings have been brought in an appropriate form.

 

 

 

 

30.3These submissions shall not affect the right of any Party to take proceedings in any other jurisdiction to the extent permitted by law, nor shall the taking of proceedings in any jurisdiction preclude any Party from taking proceedings in any other jurisdiction.

 

31.DISPUTE RESOLUTION

 

31.1If any dispute or difference arises out of or in connection with this Agreement which the Parties are unable to resolve by negotiation (“the Dispute”), the Parties shall seek to resolve the Dispute amicably by using the procedures set out in the following provisions of this clause.

 

31.2The Parties shall submit the Dispute to an independent mediator (“Mediator”) appointed by agreement between them’to assist them in resolving the Dispute, Any Party may give written notice to the others describing the nature of the Dispute, requiring the Dispute to be submitted to a Mediator and proposing the names of up to three (3) suitable persons to be appointed. If no such person is appointed by agreement between the Parties within ten (10) Business Days after such notice is given (or, if no such notice is given, within fifteen Business Days after the Dispute has arisen), any Party may request the President for the time being of The Chartered Institute of Arbitrators to appoint the Mediator.

 

31.3The Parties shall, with the assistance of the Mediator, seek to resolve the Dispute by using an alternative dispute resolution (“ADR”) procedure agreed between the Parties or, in default of such agreement, established by the Mediator.

 

31.4If the Parties reach agreement as to the resolution of the Dispute, such agreement shall be recorded in writing and signed by the Parties (and, if applicable, the Mediator), whereupon it shall become binding upon the Parties.

 

 

 

 

31.5If:

 

31.5.1the Dispute has not been resolved to the satisfaction of all Parties within fifteen (15) Business Days after the appointment of the Mediator; or

 

31.5.2any Party fails or refuses to agree to or participate in the ADR procedure; or

 

31.5.3the Dispute is not resolved within forty (40) Business Days after it has arisen, then the Parties shall be free to litigate in accordance with governing law and jurisdiction clause.

 

31.6In the event that the Dispute is litigated:

 

31.6.1the Mediator shall not, unless the parties all agree otherwise, take any part in the proceedings, whether as witness or otherwise, and no aspect of the ADR procedure, including any recommendations made by the Mediator in connection witlt the ADR procedure, shall be relied upon by any Party without the consent of the other Parties and the Mediator;

 

31.6.2no Party shall unless the Parties agree otherwise, make use of nor rely upon information supplied, or arguments raised, by the other Parties in the ADR procedure.

 

31.7The costs and fees of the Mediator, the ADR service provider and any neutral venue shall be borne equally by the Parties. The Parties shall bear their own costs of all other aspects of the ADR procedure.

 

32.Severability

 

If any of the provisions of this Agreement is found by the court or other competent authority to be void or unenforceable, it shall be deemed to be deleted from this Agreement and the remaining provisions shall continue to apply. The Shareholders shall negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the provision found to be void or unenforceable.

 

33.General matters

 

33.1This Agreement supersedes any previous agreement between the parties in relation to the matters with which it deals and represents the entire understanding between the parties in relation to those matters.

 

33.2Words importing one gender include genders and the neuter and vice versa.

 

 

 

 

34.Notices

 

  34.1Any notice or other communication to be given or served under this Agreement shall be in writing and shall be:

 

34.1.1delivered by hand, delivery by courier shall be regarded as delivery by hand;

 

34.1.2sent by ordinary first class (or registered airmail in the case of notices or communications to or from any country outside the United Kingdom) or recorded delivery post (in each case, pre-paid); or

 

34.1.3sent by email.

 

to the Party due to receive the communication; provided, however, that a proper copy of any communication which is served by email is also served in accordance with Clause 34.1.2 within 24 hours of the email having been sent.

 

34.2Any communication given pursuant to Clause 34.1 shall be sent to:

 

34.2.1ifto Unique

 

Address:Unit B&•D, 4th Floor, Sunshine Kowloon Bay Cargo Centre, 59 Tai Yip Street, Kowloon Bay, Kowloon, .Hong Kong Peoples Republic of China
   
 For the attention of:Richard Lee
   
 Email: 

 

34.2.2if to WT

 

  Address: Unit 3, Skyport Drive,Off Hatch Lane,
    Harmondsworth, Middlesex UB7 0LB
     
  For the attention of: Neil McGlynn
     
  Email:  
     
  with copy to Wallace LLP, which will not constitute notice:
   
  Address: One Portland Place, London WlB lPN
     
  For the attention of: David Judah
     
  Email:  

 

or such other address or email address as may previously by notice given in accordance with this Clause have been specified by that Party.

 

 

 

 

  34.3A communication is deemed to be given or served:

 

  34.3.1 if delivered by hand, at the time it is left at the address;
     
  34.3.2 if sent by pre-paid post (whether first class or recorded delivery), on the second Business Day after posting or if sent by pre-paid registered airmail on the fifth Business Day after posting; and
     
  34.3.3 if sent by email, when the email is sent.
     
    In the case of a notice given or served by hand or by email where this occurs after 5.00 pm on a Business Day, or on a day which is not a Business Day the date of service shall be deemed to be the next Business Day.

 

  34.4 In providing service of the communication, it shall be sufficient to show that the envelope containing the communication was properly addressed and posted as a pre-paid first class, recorded delivery or registered airmail letter or if sent by email to the email address set out in Clause 34.2.
     
  34.5 Any notification of a change of contart details under this Clause 34 shall only be effective on the date specified in the notification as the date on which the change is to take place or if no date is specified or the date specified is less than five (5) Business Days after the date on which the notice is deemed to have been served, the date falling five Business Days after notice of any such change is deemed to have been given.

 

35.Service of Process Agent

 

  35.1 Unique irrevocably appoints Melvyn Kay (Partner, Weston Kay - Chartered Accountants) of 73/75 Mortimer Street, London WlW 7SQ, ___@____ as its agent to receive on its behalf in England or Wales service of any proceedings. Such service shall be deemed completed on delivery to such agent (whether or not it is forwarded to and received by Unique. If for any reason such agent ceases to be able to act as agent or no longer has an address in England or Wales, Unique shall forthwith appoint a substitute acceptable to WT and the Company and deliver to each of WT and the Company the new agent’s name, address and email address.

 

36.Counterparts

 

This Agreement may be executed in any number of counterparts, all of which when taken together shall be deemed to constitute one and the same agreement. Each counterpart may be signed and executed by the Parties and transmitted by facsimile transmission and shall be as valid and effectual as if executed as an original.

 

37.Third Party Rights

 

No term of this Agreement shall be enforceable by a third party (being any person other than the Parties) and the operation of the Contracts (Rights of Third Parties) Act 1999 is expressly excluded.

 

38.Entire Agreement

 

This Agreement (together with all agreements and documents executed contemporaneously with it or referred to in it) constitutes the entire agreement between the Parties in relation to the subject matter of it and supersedes all prior agreements and understandings whether oral or written with respect to that subject matter.