Business Alliance Agreement
Category: Alliance
Business Alliance Agreement with SMS Biz Sdn. Bhd. and Its
Shareholders
BUSINESS ALLIANCEMENT AGREEMENT
This BUSINESS ALLIANCE AGREEMENT (the “Agreement”), dated as of November 28th, 2006, by and among Asia Payment Systems, Inc., a Nevada corporation, having a principal office address at 39th Floor, One Exchange Square, 8, Connaught Place, Central, Hong Kong (hereinafter referred to as the “Company”) and SMS Biz Sdn. Bhd., a corporation incorporated in Malaysia, having a registered address at Unit 3A-11, 3A Floor, Suite A, Block A, Damansara Intan, No, 1, Jalan SS20/27, 47400 Petaling Jaya, Selangor, Malaysia (hereinafter referred to as “SMSBIZ”), and the shareholders of SMSBIZ, namely, Yap Kit Chuan, holding Malaysian I/D Card number 761028-05-5043 (hereinafter referred to as “YAP”), and Chua Tong Ling, holding Malaysian I/D Card number 741021-06-5056 (hereinafter referred to as “CHUA”), both residing at No. 25, Jalan SP 6/3, Taman Segar Perdana, 43200 Cheras, Selangor, Malaysia .
W I T N E S S E T H:
WHEREAS, YAP and CHUA (hereinafter collectively referred to as “the Vendors”) presently own 100% of the common stock of SMSBIZ (hereinafter referred to as “the SMSBIZ Shares”) and are the two directors of SMSBIZ which conducts prepaid and postpaid long distance call services by issuing prepaid cards and sell such cards to individual end users and opening accounts to corporate and home users in Malaysia through appointed distributors and/or retailers and/or agents.
WHEREAS, the Company presently conducts payments and loyalty rewards related businesses in Asia and desires to make certain business alliances with SMSBIZ and/or the Vendors which include the granting of an option by the Vendors for the Company to acquire from them all of their SMSBIZ Shares in the future, the assignment of a distributorship agreement from a company in Malaysia which is owned and controlled by the Vendors, to the Company, the appointment of an experienced individual to be the general manager of SMSBIZ, and the assistance to be provided by the Company to SMSBIZ to apply for a Multimedia Super Corridor Status in Malaysia, on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and of the mutual representations, warranties and agreements set forth herein, the Parties hereto agree as follows:
ARTICLE I
Definitions
In addition to terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings indicated below:
“Agreement” shall mean this Business Alliance Agreement together with all exhibits and schedules referred to herein, which exhibits and schedules are incorporated herein and made a part hereof.
“Commission” shall mean the United States Securities and Exchange Commission.
“Company Common Stock” shall mean the shares of the Company’s $0.001 par value per share common stock
“Confidential Information” means any information concerning the businesses and affairs of SMSBIZ or the Company that is not already generally available to the public.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended. “Indemnified Party” shall have the meaning set forth in Section 5.7. “Indemnifying Party” shall have the meaning set forth in Section 5.7.
“SMSBIZ Share” shall mean the shares of SMSBIZ’s Ringgit Malaysia One (RM1.00) par value per share common stock.
“Investments” shall mean, with respect to any Person, all advances, loans or extensions of credit to any other Person (except for extensions of credit to customers in the ordinary course of business), all purchases or commitments to purchase any stock, bonds, notes, debentures or other securities of any other Person, and any other investment in any other Person, including partnerships or joint ventures (whether by capital contribution or otherwise) or other similar arrangement (whether written or oral) with any Person, including, but not limited to, arrangements in which (i) the first Person shares profits and losses of the other Person, (ii) any such other Person has the right to obligate or bind the first Person to any third party, or (iii) the first Person may be wholly or partially liable for the debts or obligations of such partnership, joint venture or other entity.
“Knowledge” shall mean, in the case of any Person who is an individual, knowledge that a reasonable individual under similar circumstances would have after such reasonable investigation and inquiry as such reasonable individual would under such similar circumstances make, and in the case of a Person other than an individual, the knowledge that a senior officer, director or manager of such Person, or any other Person having responsibility for the particular subject matter at issue of such Person, would have after such reasonable investigation and inquiry as such senior officer, director, manager or responsible Person would under such similar circumstances make.
“Law” and “Laws” shall mean any federal, state, local or foreign statute, law, ordinance, regulation, rule, code, order or other requirement or rule of law.
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“Liabilities” shall mean any direct or indirect indebtedness, liability, claim, loss, damage, deficiency, obligation or responsibility, fixed or unfixed, choate or inchoate, liquidated or unliquidated, secured or unsecured, accrued, absolute, contingent or otherwise, including, without limitation, liabilities on account of taxes, other governmental charges or Litigation, whether or not of a kind required by GAAP to be set forth on a financial statement.
“Litigation” shall mean any actions, suits, investigations, claims or proceedings.
“Material Adverse Effect” shall mean any event or condition of any character which has had or could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, assets, liabilities, properties, or business of the Company or SMSBIZ, as applicable.
“Periodic Reports” shall mean the Forms 10-KSB, 10-QSB, 8-K, and other Commission filings required by the Securities Exchange Act of 1934, as amended and Securities Act of 1933, as amended which have been filed by the Company with the Commission for the period beginning on January 1, 2005 and ending at the Closing Date.
“Person” shall mean any natural person, corporation, unincorporated organization, partnership, association, limited liability company, joint stock company, joint venture, trust or government, or any agency or political subdivision of any government or any other entity.
“Preferred Shares” shall mean the Series C Convertible Preferred Shares and/or Series D Convertible Preferred Shares of the Company containing the rights and preferences thereof as set forth on Exhibit A to this Agreement.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Tax” and “Taxes” shall mean (i) all income, excise, gross receipts, ad valorem, sales, use, employment, franchise, profits, gains, property, transfer, payroll, withholding, severance, occupation, social security, unemployment compensation, alternative minimum, value added, intangibles or other taxes, fees, stamp taxes, duties, charges, levies or assessments of any kind whatsoever (whether payable directly or by withholding), together with any interest and any penalties, fines, additions to tax or additional amounts imposed by any governmental or regulatory authority with respect thereto, (ii) any liability for the payment of any amounts of the type described in (i) as a result of being a member of a consolidated, combined, unitary or aggregate group for any Taxable period, and (iii) any liability for the payment of any amounts of the type described in (i) or (ii) as a result of being a transferee or successor to any person or as a result of any express or implied obligation to indemnify any other Person.
“Termination Date” shall have the meaning set forth in Section 6.6.
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