DATED: 28 MARCH 2008 Hong Kong/-1/OPEN/-1/PYYL: L_LIVE_APAC1:501246v8 Share Purchase Agreement between Mr Lin Shuipan and Richwise International Investment Group Limited as Selling Shareholders Dr Shi Jinlei as Indemnifier Elevatech Limited as...
DATED: 28
MARCH 2008
Hong
Kong/-1/OPEN/-1/PYYL: L_LIVE_APAC1:501246v8
between
Xx Xxx
Shuipan and Richwise International Investment Group
Limited
as
Selling Shareholders
Xx Xxx
Jinlei
as
Indemnifier
Elevatech
Limited
as
Investor
and
Xdlong
International Company Limited
as
Company
relating
to
the sale
and purchase of shares in the issued share capital
of Xdlong International Company Limited
CONTENTS
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1.
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Interpretation
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1
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2.
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Sale of Shares
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6
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3.
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Consideration
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7
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4.
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Conditions
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7
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5.
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Provisions in relation to the Listing Process
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9
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6.
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Completion
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12
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7.
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Warranties
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14
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8.
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Indemnification
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16
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9.
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Selling Shareholders’ Protection
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18
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10.
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Covenants to the Investor
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18
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11.
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Confidentiality
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18
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12.
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Announcements
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19
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13.
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Provisions relating to this Agreement
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20
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14.
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Waiver
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22
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15.
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Law and Jurisdiction
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23
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SCHEDULE 1 :
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THE SELLING SHAREHOLDERS
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SCHEDULE 2 :
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THE COMPANY
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SCHEDULE 3 :
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THE SUBSIDIARIES
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SCHEDULE 4 :
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WARRANTIES
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SCHEDULE 5 :
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ADJUSTMENT OF CONSIDERATION
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SCHEDULE 6 :
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PRINCIPAL TERMS OF
THE PREFERENCE SHARES
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SCHEDULE 7 :
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PARTICULARS OF PREMISES
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SCHEDULE 8 :
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SELLING SHAREHOLDERS PROTECTION
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SCHEDULE 9 :
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SHAREHOLDERS’ AGREEMENT
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i
THIS
AGREEMENT is dated 28 March 2008 and made
BETWEEN:
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(1)
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XX
XXX SHUIPAN, (“Founder
Shareholder”) holder of PRC passport number X00000000 of Xx. 000,
Xxxxxxxxxxxx Xxxx, Xxxxxxxxxx Village, Chendai Town, Jinjiang City, Fujian
Province, PRC;
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(2)
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RICHWISE
INTERNATIONAL INVESTMENT GROUP LIMITED, (“Richwise”) a
company incorporated in the British Virgin Islands having its registered
office at Sea Meadow House, Blackburne Highway, Road Town, Tortola,
British Virgin Islands;
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(3)
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XX
XXX JINLEI (“Indemnifier”),
holder of Hong Kong identity card number X000000(0), whose address is at
0/X, Xxxx Xxxxx, 0 Xxxxx Xxxxxx, Xxxxxxxx Xxx, Xxxx
Xxxx;
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(4)
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(5)
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XDLONG
INTERNATIONAL COMPANY LIMITED, (“Company”),
registered in the Cayman Islands having company number CT-207339 and
having its registered office at Cricket Square, Xxxxxxxx Drive, P.O. Box
2681, Grand Cayman KY1-1111, Cayman
Islands.
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(1)
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The
Selling Shareholders wish to sell and the Investor wishes to acquire the
Sale Shares.
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(2)
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The
Indemnifier has agreed to indemnify the Investor in the event of any
breach of the Richwise Warranties and any breach by Richwise of its other
obligations under this Agreement.
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(3)
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Concurrently
with the signing of this Agreement, the Investor, the Company and the
Founder Shareholder will enter into the Subscription Agreement for the
subscription by the Investor of such number of Preferred Shares as shall
represent 2.5% of the issued share capital of the Company as enlarged as a
result of the completion of the
Subscription.
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THE PARTIES AGREE AS
FOLLOWS:
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1.1
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In this
Agreement (including the Recitals) except where the context admits
otherwise:
“Adjustment Event”
means the adjustments events set out in paragraphs 2.1, 3.1, 4.1 and 11 of
schedule 5 of this Agreement.
“Affiliate” means, in
relation to a body corporate, any subsidiary undertaking or parent undertaking
of such body corporate, and any subsidiary undertaking of any such parent
undertaking for the time being.
“Audited Accounts”
means the audited consolidated balance sheet, audited cash flow statement and
the audited consolidated profit and loss account of the Company and the
Subsidiaries in respect of each of the three financial years ended on 31
December 2005, 31 December 2006 and 31 December 2007 reported on by Ernst &
Young and prepared in accordance with the principles of merger accounting and
HKFRS, including, in each case, the notes thereto.
1
“Authority” means any
competent governmental, administrative, supervisory, regulatory, judicial,
determinative, disciplinary, enforcement or tax raising body, authority, agency,
board, department court or tribunal of any jurisdiction and whether
supranational, national, regional or local.
“Balance Sheet Date”
means 31 December 2005 for the financial year of 2005, 31 December 2006 for the
financial year of 2006 and 31 December 2007 for the financial year of
2007.
“Business Day” means a
day (other than a Saturday or Sunday) on which banks are open for ordinary
banking business in Hong Kong, the United States, the PRC, the Cayman
Islands.
“BVI” means the
British Virgin Islands.
“BVI Subscription
Agreement” means the agreement between Richwise, Founder Shareholder,
Chen Xiayu, XDLong Hong Kong and the PRC Subsidiaries dated 18 April 2007
concerning the subscription of shares by Richwise and the Founder Shareholder in
XDLong Investment.
“Company Disclosure
Letter” means the letter dated the date of this Agreement written and
delivered by or on behalf of the Company and the Founder Shareholder and
addressed to the Investor on or before the execution of this
Agreement.
“Completion” means
completion of the sale and purchase of the Sale Shares in accordance with clause
6.
“Completion Articles”
means the new articles of association of the Company to be adopted by the
Company in accordance with the Conditions, reflecting the relevant terms as set
out under this Agreement, the Subscription Agreement and the Shareholders’
Agreement in a form to be agreed between the Parties prior to
Completion.
“Completion Date”
means the day upon which Completion takes place.
“Completion
Deliverables” means the documents to be delivered upon Completion as set
out in paragraph 2.2 in Part A of schedule 4.
“Conditions” means the
conditions set out in clause 4.1.
“Consent” means any
approval, consent, ratification, waiver or other authorisation;
“Consideration” means
the consideration to be paid for the Sale Shares in accordance with clause
3.1.
“Directors” means the
directors of the Company or any of the Subsidiaries.
“Encumbrance” means
any, actual or contingent, (i) mortgage, charge (floating and fixed), pledge,
lien, assignment, hypothecation, deed of trust, security interest (including any
created by law), or other security agreement or arrangement that securing or
conferring any priority of payment in respect of any obligation of any person,
(ii) any lease, sub-lease, occupancy agreement, easement or covenant granting a
right of use or occupancy to any person and (iii) any proxy, power of attorney,
voting trust agreement, interest, option, right of first offer, negotiation or
refusal or transfer restriction in favour of any person; but does not include
any retention of title provision.
2
“Estimated Profit”
means the forecast net profit attributable to the equity holders of the Company
for the year ending 31 December 2008 under HKFRS, excluding all non-recurring,
exceptional and extraordinary items and denominated in RMB, to be set out in the
Profit Forecast Memo.
“Founder Shareholder”
means Xx Xxx Shuipan.
“Group” means the
Company and each of its Subsidiaries.
“HKFRS” means Hong
Kong Financial Reporting Standards as in effect from time to time, consistently
applied during the periods involved.
“Hong Kong Stock
Exchange” means The Stock Exchange of Hong Kong Limited.
“Initial Valuation”
means the amount in HK Dollars resulting from the following formula: 12.1
multiplied by Estimated Profit, where the HK Dollar amount shall be calculated
on the basis of RMB1:HK$1.0966.
“IPO” means an initial
public offering and listing of Ordinary Shares of the Company on a Stock
Exchange including a Qualified IPO.
“IRR” means internal
rate of return.
“Laws” means any
treaty, statute, directive, regulation, decision, order, instrument, by-law, or
any other law of, or having effect in, any jurisdiction.
“Listing Process”
shall mean the process of undertaking an application to a Stock Exchange for the
listing of and permission to deal in the Shares on that Stock
Exchange.
“Material Adverse
Effect” means, with respect to any person, any change, event or effect
that is materially adverse to the general affairs, business, management,
operations, assets, liabilities, cash flows, condition (financial or otherwise)
or results of operations or the ability to conduct the business (as currently
conducted or contemplated to be conducted) by such person.
“Ordinary Shares”
means the ordinary shares of HK$0.10 each in the share capital of the
Company.
“Party” means a party
to this Agreement, and the meaning of “Parties” shall be
construed accordingly.
“Preferred Shares”
means the convertible redeemable preference shares of HK$0.10 each in the share
capital of the Company, the principal terms of which are set out in schedule 6
of this Agreement and to be set out in the Completion Articles.
“PRC” means the
People’s Republic of China, excluding for purposes of this Agreement, Hong Kong,
Macau Special Administrative Region of the People’s Republic of China and
Taiwan.
3
“PRC Subsidiary” means
each of Xidelong (China) Limited 
and Fujian
Xidelong Sports Goods Limited 
, both
incorporated under the laws of the PRC and collectively the “PRC
Subsidiaries”.
and Fujian
Xidelong Sports Goods Limited , both
incorporated under the laws of the PRC and collectively the “PRC
Subsidiaries”.“Premises” means the
land and premises the particulars of which are set out in schedule
7.
“Profit Forecast Memo”
means the memorandum setting out the Estimated Profit to be prepared by the
Company pursuant to the requirements of the Rules Governing the Listing of
Securities on The Stock Exchange of Hong Kong Limited and which will be reviewed
for submission to the Hong Kong Stock Exchange by Ernst &
Young.
“Pro-rata Basis” means
the proportion that the number of Sale Shares to be sold to the Investor by each
of the Selling Shareholders bears to the total number of Sale Shares, which
shall be 2/5.5 for the Founder Shareholder and 3.5/5.5 for
Richwise.
“Qualified IPO” means
an IPO satisfying the following conditions: (i) it has been approved by the
Investor in accordance with clause 5.7 (for the avoidance of doubt this
condition shall only apply where the approval rights in clause 5.7 are
applicable), (ii) the offering places a market capitalisation on the Company of
at least US$650 million calculated on the basis of the offering price or the
Investor has otherwise been deemed to be satisfied with this condition pursuant
to clause 5.5(E), and (iii) upon the consummation of the IPO at least 25% of the
outstanding Ordinary Shares held by persons other than Affiliates of the
Company, may be traded without restriction (other than customary restrictions
contained in lock-up agreements with the managing underwriter).
“Richwise” means
Richwise International Investment Group Limited.
“Richwise Completion
Deliverables” means the deliverables as defined in paragraph 2.3 of Part
B of schedule 4.
“Richwise Disclosure
Letter” means the letter dated the date of this Agreement written and
delivered by or on behalf of Richwise and the Indemnifier and addressed to the
Investor on or before the execution of this Agreement.
“Richwise Warranties”
means the warranties set out in Part B of schedule 4.
“RMB” means Renminbi,
the lawful currency of the People’s Republic of China.
“Sale Shares” means
the Shares, which shall be reclassified as Preference Shares, to be bought and
sold pursuant to clause 2.1 and which will constitute 5.5 per cent. of the
issued share capital of the Company, as enlarged by the
Subscription.
“Selling Shareholders”
means Richwise and Founder Shareholder.
“Shares” means the
Ordinary Shares and the Preferred Shares in issue.
“Shareholder” means
holders of Shares.
“Shareholders’
Agreement” means the agreement to be entered into between the Company,
the Selling Shareholders, Tiancheng International Investment Group Limited, XX
Xxxxx Group Limited, Eagle Rise Investments Limited and the Investor, the form
of which is attached as schedule 9.
4
“Stock Exchange” means
any reputable international stock exchange to which the Company submits its
listing application, including but not limited to, the Hong Kong Stock
Exchange.
“Subscription” means
the subscription of 2,500 Preferred Shares by the Investor from the Company,
representing 2.5 per cent. of the issued share capital as enlarged by the
allotment and issue of the subscription Shares pursuant to the Subscription
Agreement.
“Subscription
Agreement” means the agreement to be entered into between the Investor,
the Company and the Founder Shareholder in relation to the Subscription on the
date of this Agreement.
“Tax” means any
liability of any member of or all of the Group to any form of taxation
(including those of a provisional nature) whenever created or imposed and
whether created or imposed in the British Virgin Islands, the Cayman Islands,
Hong Kong, the PRC or of any other part of the world and without prejudice to
the generality of the foregoing includes profits tax, provisional profits tax,
interest tax, income tax, enterprise income tax, local income tax, business tax,
value added tax, salaries tax, property tax, estate duty, death duty, capital
duty, stamp duty, payroll tax, withholding tax, rates, customs and exercise
duties and generally any tax, duty, impost, levy or rate or any amount payable
to the revenue, customs, fiscal or other authorities whether of British Virgin
Islands, the Cayman Islands, Hong Kong, the PRC or of any other part of the
world and all interest, penalties, claim, damages, fines, costs, charges, public
censure imposed by any authority and expenses incidental or relating to such
Tax.
“Subsidiaries” means
the companies, details of which are set out in schedule 3, and “Subsidiary” means any
of the Subsidiaries.
“Warranties” means the
warranties set out in Part A of schedule 4 and all other warranties, covenants
and indemnities on the part of the Company and the Founder Shareholder contained
in this Agreement or which are or may be implied by law.
“XDLong Hong Kong”
means Hei Dai Lung Group Company Limited 
, a
company incorporated in Hong Kong, further details of which are set out in Part
2 of
schedule 3.
, a
company incorporated in Hong Kong, further details of which are set out in Part
2 of
schedule 3.“XDLong Investment”
means XDLong Investment Holding Limited, a company incorporated in the British
Virgin Islands, further details of which are set out in Part 1 of schedule
3
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1.2
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Construction
of certain references
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In this
Agreement, where the context admits:
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(A)
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where
any statement is qualified by the expression “so far as the relevant
Party is aware” or “to the best of the
relevant Party’s knowledge and belief” or any similar expression in
relation to any Party, that statement shall be deemed to be made after
such Party has made reasonable
inquiries;
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(B)
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references
to clauses and schedules are references to clauses of and schedules to
this Agreement, references to paragraphs are, unless otherwise stated,
references to paragraphs of the schedule in which the reference appears,
and references to this Agreement include the
schedules;
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5
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(C)
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references
to the singular shall include the plural and vice versa and references to
the masculine, the feminine and the neuter shall include all such
genders;
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(D)
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“person”
includes any individual, partnership, body corporate, corporation sole or
aggregate, state or agency of a state, and any unincorporated association
or organisation, in each case whether or not having separate legal
personality;
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(E)
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“company”
includes any body corporate;
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(F)
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references
to the Selling Shareholders include a reference to each of them;
and
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(G)
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references
to, or to any provision of, any Laws shall be construed also as references
to all other Laws made under the Law referred to, and to all such Laws as
for the time being amended, re-enacted (with or without amendment),
consolidated or replaced or as their application is modified by other Laws
from time to time.
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(A)
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All
warranties, representations, indemnities, covenants, agreements and
obligations given or entered into by the Company and the Founder
Shareholder in this Agreement are given or entered into by them jointly
and severally.
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(B)
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All
warranties, representations, indemnities, covenants, agreements and
obligations given or entered into by Richwise and the Indemnifier in this
Agreement are given or entered into by them jointly and
severally.
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1.4
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The
headings and sub-headings are inserted for convenience only and shall not affect
the construction of this Agreement.
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1.5
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Each of
the schedules shall have effect as if set out herein.
Subject
to the terms of this Agreement, each of the Selling Shareholders shall sell free
from all Encumbrances and together with all rights now or thereafter attaching
thereto, the number of Sale Shares set opposite his name in the second column of
schedule 1, and the Investor shall purchase all such Sale Shares. The Sale
Shares will comprise 5.5 per cent. of the issued share capital of the Company,
as enlarged following the Subscription.
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2.2
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No
sale of part only
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Neither
the Selling Shareholders nor the Investor shall be obliged to complete the sale
and purchase of any of the Sale Shares unless the sale and purchase of all the
Sale Shares is completed simultaneously.
6
Each of
the Selling Shareholders hereby waives, and agrees to procure that all other
Shareholders shall waive, any pre-emption rights he may have relating to the
Sale Shares whether conferred by the Company’s Articles of Association or
otherwise.
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3.1
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(A)
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The
total Consideration for the Sale Shares shall be the sum which is 5.5 per
cent. of the Initial Valuation, but subject to adjustment pursuant to the
Adjustment Events referred to in schedule
5.
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(B)
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The
Consideration shall be apportioned between the Selling Shareholders in the
proportions set out in the third column of schedule
1.
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4.
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4.1
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Completion
is conditional upon:
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(A)
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resolutions
of the Company being duly passed by the Company in general meeting or by
written resolution and being implemented in accordance with their
respective terms and all corporate and governmental approvals having been
obtained and remaining in full force
for:
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(1)
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approving
the terms of the transactions contemplated under and contained in this
Agreement;
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(2)
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creating
the Preferred Shares by reclassifiying 2,000 Ordinary Shares held by the
Founder Shareholder and 3,500 Ordinary Shares held by Richwise as
Preferred Shares; and
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(3)
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adopting
the Completion Articles as the articles of association of the
Company;
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(B)
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the
reorganisation of the Group having been completed
by:
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(1)
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the
Company entering into a sale and purchase agreement with the existing
shareholders of XDLong Investment for the purchase of the entire issued
share capital of XDLong Investment by the Company and the Company having
become the sole legal and beneficial owner of the entire issued share
capital of XDLong Investment;
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(2)
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in
consideration for the sale of the respective shareholdings in XDLong
Investment to the Company by existing shareholders of XDLong Investment,
the Company will have issued to the following persons the number of
Ordinary Shares set opposite their names prior to or upon
Completion:
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7
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Names
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No. of Shares
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Percentage of
Shares in the
Company
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||||||
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The
Founder Shareholder
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63,374
and credit 1
subscriber
share as fully paid
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65%
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Richwise
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14,625
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15%
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Tiancheng
International Investment Group Limited
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9,750
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10%
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XX
Xxxxx Group Limited
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4,875
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5%
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||||||
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Eagle
Rise Investment Limited
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4,875
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5%
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(3)
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immediately
prior to Completion, the Company having reclassified 2,000 Ordinary Shares
held by the Founder Shareholder and 3,500 Ordinary Shares held by Richwise
as Preferred Shares in accordance with clause 4.1(A)(2);
and
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(4)
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receiving
all corporate and governmental approvals for the implementation and
effectiveness of the reorganisation referred to in this clause 4.1
(B);
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(C)
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the
completion of all necessary and required registrations with the State
Administration for Foreign Exchange in the PRC as required under the
applicable laws and regulations of the PRC, whether in respect of any
member of the Group or any shareholder of XDLong Investment and of the
Company or otherwise;
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(D)
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receipt
by the Investor of an advanced draft of the Audited Accounts, together
with a written confirmation from Ernst & Young that the Audited
Accounts will not contain any material changes other than those matters or
events specifically referred to in the written confirmation and (i) any
item of such matters or events shall not have an adverse effect of more
than 5% on the net profit in any of the profit and loss accounts for the
financial years ended 31 December 2005, 31 December 2006 and 31 December
2007 (“Profit
and Loss Accounts”) or 5% on the net assets in the balance sheet
for the financial year ended on 31 December 2007 (“Balance
Sheet”); and (ii) all such matters or events shall not have an
aggregate adverse effect of more than 10% on the net profit in any of the
Profit and Loss Accounts or 5% on the net assets in the Balance
Sheet;
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(E)
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receipt
by the Investor not later than 5 days prior to the Completion Date of an
advanced draft of the Profit Forecast
Memo;
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(F)
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receipt
by the Investor of a business plan for the Group for the financial years
2008 to 2010;
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(G)
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if
required pursuant to the terms of the BVI Subscription Agreement,
fulfilment of the obligations owed by Richwise pursuant to clause 4 of the
BVI Subscription Agreement;
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(H)
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legal
opinions addressed to the Investor being issued by PRC, BVI and Cayman
Island legal counsels to the Company in a form to be agreed by the
Parties;
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8
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(I)
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executive
employment contracts with non-compete undertakings being entered into by
Lin Shuipan, Ding Dongdong, Sun Jun, Cai Wanjiang, Xxx Xxxx, Xxx Xx and
Xxx Xxx Ting with the Company;
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(J)
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the
completion of the Subscription pursuant to the Subscription
Agreement;
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(K)
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the
execution of the Shareholders’ Agreement by all the parties to that
agreement;
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(L)
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the
Completion Articles becoming effective under the laws of the Cayman
Islands;
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(M)
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there
has been no change having, or that would or is likely to have, a Material
Adverse Effect;
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(N)
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all
Warranties and Richwise Warranties being true, accurate and complete in
all material respects as of the date of
Completion;
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(O)
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the
articles of association of each PRC Subsidiary having been amended and
taken effect such that they are in full compliance with all applicable
laws and regulations in the PRC;
and
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(P)
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a
certificate having been issued by the competent PRC authority with respect
to each PRC Subsidiary that such PRC Subsidiary has made contributions to
the social security fund accounts of all its current and past employees in
full (including any penalties, interest, fees and other similar levies)
and in a timely manner as required by applicable PRC laws and regulations
for the period starting from its establishment and ending on the
Completion Date,
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and in
the event that all the Conditions shall not have been satisfied or waived in
accordance with clause 4.3 on or before the earlier of (i) 30 July 2008 and (ii)
the date on which the submission of formal application for listing (Form C1) is
made to the Hong Kong Stock Exchange, or such later date the Parties may agree,
this Agreement shall lapse and no Party shall make any claim against any other
in respect hereof, save for any antecedent breach.
Should
the Selling Shareholders become aware of anything which will or may prevent any
of the Conditions from being satisfied they shall forthwith disclose such
matters to the other Parties.
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4.3
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The
Investor may waive in writing all of the Conditions, in whole or in
part.
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5.1
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Without
prejudice to the rights and obligations of the relevant Parties under clause 11
and clause 12, the Investor and the Selling Shareholders severally agree to
co-operate in any dealings with or submission to any Authority pursuant to the
Listing Process such that:
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(A)
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all
requests and enquiries from any such Authority shall be dealt with
promptly by the parties in consultation with each other and in any event
in accordance with any relevant time limit, with each Party promptly
providing all information and assistance reasonably required by any such
Authority upon being requested to do so by such Authority or by any other
Party;
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9
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(B)
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each
Party shall provide copies of any proposed communication with any such
Authority to the other parties, together with any supporting documentation
or information reasonably requested by any other Party, and shall take due
consideration of any comments that any other Party may have in relation to
any such proposed communication prior to making it, provided that no Party
shall be required to disclose any confidential information or business
secrets which have not previously been disclosed to such other Party;
and
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(C)
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each
Party shall promptly provide each other Party with copies of written
communications and reports of all other communications with any such
Authority subject to the deletion of confidential information or business
secrets which have not previously been disclosed to each other
Party.
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5.2
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In the
event that the Stock Exchange indicates in writing to the Company that for the
purpose of considering and approving the IPO, the Parties to this Agreement
should consider amending or deleting any provision of this Agreement, the
Company shall immediately inform the Parties of such written indication and,
after the Company has used its best endeavours in negotiating and in assisting
the Parties to undertake negotiations with the Stock Exchange in relation to
such amendments, the Parties shall act in good faith and use their reasonable
commercial endeavours to consult and to resolve such request of the Stock
Exchange in a manner that does not cause delay to the Listing
Process.
Any
amendments to the rights of the Investor pursuant to clause 5.2 shall be
conditional upon completion of the IPO, which shall be deemed to take place upon
the commencement of trading of the Shares on the relevant Stock Exchange. If
completion of a proposed IPO does not occur within 6 months of the Investor
agreeing to any amendments to this Agreement in accordance with clause 5.2, such
amendments shall be void.
|
|
(A)
|
Subject
to clause 5.2, if the Stock Exchange requests any material amendments to
any of the rights of the Investor in relation to an Adjustment Event, the
Warranties or the Richwise Warranties or other Investor’s rights as set
out under this clause 5.4, in schedule 5 and schedule 6 of this Agreement
and clause 6 (Pre-emptions on issues of New Securities), clause 7
(Pre-emptions on transfers of Shares), clause 8 (Tag-along), clause 9
(Top-up acquisitions, Sale on IPO) and clause 11 (registration rights) of
the Shareholders’ Agreement, the Investor shall be entitled to require
each of the Selling Shareholders to purchase, on a Pro-rata Basis and on a
several basis, all or part of the Sale Shares at a price per Share equal
to the sum of the Initial Valuation per share plus a return that yields
12% IRR.
|
|
|
(B)
|
The
entitlement in clause 5.4(A) is exercisable by the Investor giving a
written notice to a Selling Shareholder at any time in the period
commencing on the day on which the Stock Exchange requests in writing any
amendments to this Agreement which falls under the scope of clause 5.4(A)
and ending on the 5th
Business Day after such day. Completion of the transfer of Sale Shares
pursuant to this clause 5.4 shall occur on the third Business Day after
such notice is given.
|
10
|
|
(A)
|
Section
(ii) of the definition of “Qualified
IPO” in clause 1.1 contains a qualification that a Qualified IPO
can only be achieved by the Company if at the time of listing the Company
achieves a market capitalization of US$650 million. This clause 5.5 sets
out circumstances in which a Qualified IPO can be achieved by the Company
with a market capitalization below US$650
million.
|
|
|
(B)
|
The
Selling Shareholders can jointly serve on the Investor a notice setting
out the pricing of the offer shares for the proposed IPO and the possible
non-occurrence of a Qualified IPO (the “Pricing
Notice”) if:
|
|
|
(1)
|
a
listing is granted by a Stock Exchange;
and
|
|
|
(2)
|
in
the final determination of the offer price, the Selling Shareholders
become aware that a market capitalization of US$650 million may not be
achieved.
|
|
|
(C)
|
After
the Investor has been served with the Pricing Notice, the Investor shall
be entitled to require each of the Selling Shareholders to purchase, on a
Pro-rata Basis and on a several basis, all (but not part only) of the Sale
Shares at a price per Share equal to the sum of the Initial Valuation per
share plus a return that yields 12%
IRR.
|
|
|
(D)
|
The
entitlement in clause 5.5(C) is exercisable by the Investor giving a
written notice to a Selling Shareholder no later than 48 hours from the
time that the Pricing Notice is given (or is deemed to be given pursuant
to clause 13.10(A)). Completion of the transfer of Sale Shares pursuant to
this clause 5.5 shall occur on the third Business Day after such notice is
given by the Investor.
|
|
|
(E)
|
If
the Investor does not exercise its entitlement to require the Selling
Shareholders to purchase the Sale Shares within the period specified in
clause 5.5(D), the Investor is deemed to have satisfied itself with the
market capitalization qualification in section (ii) of the definition of
“Qualified IPO” in clause 1.1
notwithstanding a market capitalization of US$650 million may not be
achieved, and the market capitalization qualification in the definition of
“Qualified IPO” will be deemed to be
satisfied.
|
|
|
(F)
|
For
the avoidance of doubt, notwithstanding the waiver by the Investor of the
market capitalization qualification in this clause 5.5, the other
Investor’s rights in this Agreement will not be waived as a consequence of
such waiver.
|
|
|
(A)
|
If:
|
|
|
(1)
|
the
Stock Exchange requests any material amendments to any of the rights of
the Investor referred to in clause
5.4;
|
|
|
(2)
|
the
Investor refuses to accept such
amendments;
|
11
|
|
(3)
|
the
Stock Exchange would not approve the proposed IPO without such amendments
being made; and
|
|
|
(4)
|
the
Investor indicates it will not to exercise the put option set out in
clause 5.4 or upon expiry of the period referred to in clause 5.4(B),
during which the Investor may exercise its rights under clause
5.4(A),
|
each of
the Selling Shareholders shall be entitled to require the Investor to sell all
(but not part only) of the Sale Shares to each of them on a Pro-rata Basis at a
price per Share equal to the sum of the Initial Valuation per share plus a
return that yields 12% IRR.
|
|
(B)
|
The
entitlement in clause 5.6(A) is exercisable by a Selling Shareholder
giving a written notice to the Investor at any time after the earlier
of:
|
|
|
(1)
|
the
Investor indicating it will not exercise the put option set out in clause
5.4; and
|
|
|
(2)
|
the
Business Day immediately following the expiry of the period referred to in
clause 5.4(B) during which the Investor may exercise its rights under
clause 5.4(A).
|
Completion
of the transfer of Sale Shares pursuant to this clause 5.6 shall occur on the
third Business Day after such notice is given.
|
|
(A)
|
The
venue of any IPO (including a Qualified IPO) other than the Main Board of
the Hong Kong Stock Exchange shall be subject to the Investor’s prior
written consent.
|
|
|
(B)
|
The
offering size of any IPO (including a Qualified IPO) shall be subject to
Investor’s prior written consent if the number of newly issued Shares
available for subscription (including new Shares to be issued pursuant to
the exercise of the over-allotment option) would represent more than 25
per cent. of the total number of Shares in issue following the completion
of the IPO on a Fully Diluted
basis.
|
|
6.
|
Completion
shall take place at the offices of Xxxxxxx & Xxxxxxx in Hong Kong on the 4th
Business Day after both this Agreement and the Subscription Agreement cease to
be subject to any Conditions (as defined in the relevant agreement), other than
those Conditions which will be satisfied on Completion, or any other place or
time as agreed between the parties.
12
On
Completion the Selling Shareholders shall, subject to the due performance by the
Investor of its obligations under clause 6.3:
|
|
(A)
|
deliver
to the Investor:
|
|
|
(1)
|
copy
of the resolutions of the Company duly passed by the Company in general
meeting or by written resolution approving the terms of the transactions
contemplated and contained with this Agreement, the creation of the
Preferred Shares and the adoption of the Completion Articles as the
articles of association of the Company referred to in clause
4.1(A);
|
|
|
(2)
|
copy
of the register of members of XDLong Investment as evidence for the
completion of the reorganisation of the Group referred to in clause
4.1(B);
|
|
|
(3)
|
copies
of documents showing all necessary and required registrations with the
State Administration for Foreign Exchange in the PRC as required under the
applicable laws and regulations of the PRC in respect of the relevant
member(s) of the Group or the relevant shareholder(s) of the Company
referred to in clause 4.1(C);
|
|
|
(4)
|
original
legal opinions addressed to the Investor issued by counsels to the Company
in respect of the laws of the PRC, British Virgin Islands and Cayman
Islands referred to in clause
4.1(H);
|
|
|
(5)
|
instruments
of transfer of the Sale Shares duly executed by the registered holders
thereof in favour of the Investor together with the relative original
share certificates; and
|
|
|
(6)
|
such
waivers or consents as the Investor may require to enable the Investor to
be registered as holder of the Sale
Shares;
|
|
|
(B)
|
procure
the delivery of executive employment contracts with non-compete
undertakings being entered into with the Company referred to in clause
4.1(I), each executed by the employee named
therein;
|
|
|
(C)
|
procure
the delivery of the Shareholders’ Agreement referred to in clause 4.1(K)
duly executed by all the parties
thereto;
|
|
|
(D)
|
procure
board meetings of the Company to be duly held at which there shall
be:
|
|
|
(1)
|
passed
a resolution to approve the transfers of the Sale Shares and to register,
in the register of members, the Investor as the holder of the Shares
concerned; and
|
|
|
(2)
|
appointed
as a Director such person as the Investor may nominate, such appointment
to take effect immediately on Completion, if required by the
Investor;
|
|
|
(E)
|
procure
the delivery of a copy of updated register of members of the Company
showing the Investor’s name recorded as a shareholder of the Company as
the sole legal and beneficial owner of the Sale Shares and the
Subscription Shares certified by a director or authorised officer of the
Company;
|
|
|
(F)
|
procure
the delivery of the original share certificate(s) to be issued to the
Investors in relation to the Sale
Shares;
|
|
|
(G)
|
procure
the delivery of a copy of updated register of directors of the
Company;
|
|
|
(H)
|
procure
the delivery of evidence that the articles of association of the PRC
Subsidiaries have been amended as referred to under clause 4.1(P);
and
|
13
|
|
(I)
|
procure
the delivery of the official certificates with respect to social security
contributions by the PRC Subsidiaries as referred to under clause
4.1(Q).
|
On
Completion the Investor shall pay the Consideration for the Sale Shares as
provided by clause 3 (before any adjustment as is mentioned in clause 3) by
telegraphic transfer to such bank accounts as shall be notified by each of the
Selling Shareholders to the Investor in writing on the letterhead of the
relevant Selling Shareholder and duly signed by such Selling Shareholder and in
the case that the Selling Shareholder is a company, signed by an authorised
representative of the Selling Shareholder, at least 3 Business Days prior to
Completion.
|
7.
|
|
7.1
|
|
|
(A)
|
The
Founder Shareholder and the Company hereby jointly and severally represent
and warrant to the Investor in the terms of the
Warranties.
|
|
|
(B)
|
Richwise
and the Indemnifier jointly and severally represent and warrant to the
Investor in terms of the Richwise Warranties
only.
|
|
|
(C)
|
The
Warranties and the Richwise Warranties are given subject to the provisions
of this Agreement and in particular the exclusions and limitations in
schedule 8.
|
|
7.2
|
|
|
(A)
|
The
Warranties are given subject to facts and matters fairly and specifically
disclosed in or by this Agreement and the Company Disclosure Letter, and
the Investor shall accordingly have no claim in respect of any of the
Warranties in relation to any fact or matter so
disclosed.
|
|
|
(B)
|
The
Richwise Warranties are given subject to facts and matters fairly and
specifically disclosed in or by this Agreement and the Richwise Disclosure
Letter and the Investor shall accordingly have no claim in respect of any
of the Richwise Warranties in relation to any fact or matter so
disclosed.
|
|
|
(A)
|
Each
of the Warranties is given on the date of this Agreement on the basis that
it is true and accurate as of the date of the Agreement. Each of the
Warranties is given on the basis that it will remain true and accurate in
all respects up to and including Completion, and the Company and the
Founder Shareholder undertake to forthwith disclose in writing to the
Investor any matter or thing which may arise or become known to the
Company and the Founder Shareholder after the date of this Agreement and
before Completion which is inconsistent with any of the
Warranties.
|
|
|
(B)
|
Each
of the Richwise Warranties is given on the date of this Agreement on the
basis that it is true and accurate as of the date of the Agreement. Each
of the Richwise Warranties is given on the basis that it will remain true
and accurate in all respects up to and including Completion, and Richwise
and the Indemnifier undertake to forthwith disclose in writing to the
Investor any matter or thing which may arise or become known to Richwise
and the Indemnifier after the date of this Agreement and before Completion
which is inconsistent with any of the Richwise
Warranties.
|
14
|
|
(A)
|
In
the event of it becoming apparent on or before Completion that the Company
or the Founder Shareholder are in material breach of any of the Warranties
or any other term of this Agreement, the Investor may at its
option:
|
|
|
(1)
|
rescind
this Agreement by notice in writing to the other Parties;
or
|
|
|
(2)
|
proceed
to Completion but without prejudice to their right to claim for breach of
this Agreement or the Warranties.
|
|
|
(B)
|
In
the event of it becoming apparent on or before Completion that Richwise or
the Indemnifier are in material breach of any of the Richwise Warranties
or any other term of this Agreement, the Investor may at its
option:
|
|
|
(1)
|
rescind
this Agreement by notice in writing to the other Parties;
or
|
|
|
(2)
|
proceed
to Completion but without prejudice to their right to claim for breach of
this Agreement or the Richwise
Warranties.
|
The
Investor warrants to each of the Selling Shareholders as follows:-
|
|
(A)
|
the
Investor is validly incorporated, in existence and duly registered under
the laws of the jurisdiction of its
incorporation;
|
|
|
(B)
|
the
Investor has the requisite power and authority to enter into and perform
this Agreement;
|
|
|
(C)
|
this
Agreement constitutes and will, when executed, constitute binding
obligations of the Investor in accordance with its respective
terms;
|
|
|
(D)
|
no
order has been made and no resolution has been passed for the winding up
of the Investor or for a provisional liquidator to be appointed in respect
of it and no petition has been presented and no meeting has been convened
for the purposes of winding up the
Investor;
|
|
|
(E)
|
no
administration order has been made and no petition has been presented and
no other action for such an order has been taken in respect of the
Investor;
|
|
|
(F)
|
no
receiver (which expression shall include an administrative receiver) has
been appointed in respect of the
Investor;
|
|
|
(G)
|
the
Investor is not insolvent or unable to pay its debts and has not stopped
paying its debts as they fall due;
and
|
|
|
(H)
|
the
execution and delivery of, and the performance by the Investor of its
obligations under, this Agreement will
not:
|
|
|
(1)
|
be
or result in a breach of any provision of the memorandum or articles of
association of the Investor;
|
15
|
|
(2)
|
be
or result in a breach of, or constitute a default under, any instrument to
which the Investor is a party or by which the Investor is bound and which
is material in the context of the transactions contemplated by this
Agreement;
|
|
|
(3)
|
be
or result in a breach of any order, judgment or decree of any court or
governmental agency to which the Investor is a party or by which the
Investor is bound and which is material in the context of the transactions
contemplated by this Agreement; or
|
|
|
(4)
|
require
the Investor to obtain any consent or approval of, or give any notice to
or make any registration with, any governmental or other authority which
has not been obtained or made at the date hereof both on an unconditional
basis and on a basis which cannot be revoked (save pursuant to any legal
or regulatory entitlement to revoke the same other than by reason of any
misrepresentation or misstatement).
|
Each of
the foregoing warranties given by the Investor (“Investor’s
Warranties”) is given on the basis that it will remain true and accurate
in all respects up to and including Completion and the Investor undertakes to
forthwith disclose in writing to the Selling Shareholders any matter or thing
which may arise or become known to the Investor after the date of this Agreement
and before Completion which is inconsistent with any of the investor’s
Warranties.
In the
event of it becoming apparent on or before Completion that the Investor is in
material breach of any of the Investor’s Warranties or any other term of this
Agreement the Selling Shareholders may at their option either:
|
|
(A)
|
rescind
this Agreement by notice in writing to the Investor;
or
|
|
|
(B)
|
proceed
to Completion but without prejudice to their right to claim for breach of
this Agreement or the Investor’s
Warranties.
|
|
8.1
|
|
|
(A)
|
The
Company and Founder Shareholder on a joint and several basis hereby agree
to indemnify, defend and hold harmless the Investor, its Affiliates and
their respective successors and assigns, representatives, directors,
officers, members, partners, employees and agents (individually, an “Indemnified
Party” and, collectively, the “Indemnified
Parties”) from and against all and any losses, asserted against,
imposed upon or incurred by any Indemnified Party by reason of or
resulting from a breach of the Warranties or this Agreement by the Company
or the Founder Shareholder (a “Company Indemnified
Event”).
|
|
|
(B)
|
Richwise
and the Indemnifier, on a joint and several basis hereby agree to
indemnify, defend and hold harmless the Indemnified Parties from and
against all and any losses, asserted against, imposed upon or incurred by
any Indemnified Party by reason of or resulting from a breach of the
Richwise Warranties or this Agreement by Richwise (a “Richwise Indemnified
Event”).
|
16
|
8.2
|
For the
purposes of this clause 8:
|
|
(A)
|
the
Company, the Founder Shareholder, Richwise and the Indemnifier are
referred to as the “Indemnifying
Parties”; and
|
|
|
(B)
|
a
Company Indemnified Event and a Richwise Indemnified Event shall are
collectively referred to as an “Indemnified
Event”.
|
|
|
(A)
|
If
any Indemnified Party is entitled to indemnification hereunder, such
Indemnified Party shall give notice (an “Indemnity
Notice”) to the relevant Indemnifying Parties of any claim or of
the commencement of any action or proceeding against such Indemnified
Parties brought by any third party with respect to which such Indemnified
Party seeks indemnification pursuant hereto as soon as practical following
the time at which the Investor discovers such claim; provided, however,
that any delay to so notify the Indemnifying Parties shall not relieve the
Indemnifying Parties from any obligation or
liability.
|
|
|
(B)
|
Such
Indemnifying Parties shall have the right, exercisable by giving written
notice to an Indemnified Party within thirty (30) days after the receipt
of an Indemnity Notice from such Indemnified Party of such claim, Action
or Proceeding to assume, at the expense of such Indemnifying Parties, the
defense of any such claim, action or proceeding with counsel reasonably
satisfactory to such Indemnified
Party.
|
|
|
(C)
|
The
Indemnified Party shall have the right to control the defense or
settlement of that portion of any claim which seeks an order, injunction
or other equitable relief against the Indemnified Party which, if
successful, could materially interfere with the business, operations,
assets, financial condition or prospects of the Indemnified
Party.
|
|
|
(D)
|
After
notice from such Indemnifying Parties to the Indemnified Party of its
election to assume the defense of such claim, action or proceeding, none
of such Indemnifying Parties shall be liable to the Indemnified Party for
any legal or other expenses subsequently incurred by the Indemnified Party
in connection with the defense thereof other than reasonable costs of
investigation; provided that the Indemnified Party shall have the right to
employ separate counsel to represent the Indemnified Party which may be
subject to liability arising out of any claim in respect of which
indemnity may be sought by the Indemnified Party against such Indemnifying
Parties, but the fees and expenses of such counsel shall be for the
account of such Indemnified Party unless (i) such Indemnifying Parties and
the Indemnified Party shall have mutually agreed to the retention of such
counsel or (ii) in the reasonable opinion of counsel to such Indemnified
Party, representation of both parties by the same counsel would be
inappropriate due to actual or potential conflicts of interest between
them, it being understood, however, that such Indemnifying Parties shall
not, in connection with any one such claim, action or proceeding but
substantially similar or related claims, action or proceeding in the same
jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of
attorneys (together with appropriate local counsel) at any time for all
Indemnified Parties.
|
|
|
(E)
|
None
of such Indemnifying Parties shall consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term
thereof the giving by claimant or plaintiff to such Indemnified Party or
Parties of a release from all liability in respect of such claim, action
or proceeding.
|
17
The
provisions of schedule 8 shall apply.
The
Company hereby grants the Investor and its Affiliates permission to use the
Company’s name and logo in its or its Affiliate’s marketing materials. The
Investor or its Affiliate, as applicable, shall include a trademark attribution
notice giving notice of the Company’s ownership of its trademarks, trade name or
brand, as applicable, in the marketing materials in which the Company’s name and
logo appear.
Each
Selling Shareholder hereby covenants that it will not take any action with
respect to the use of the proceeds of sale of the Sale Shares pursuant to this
Agreement that would result in a violation by any person investing or
participating in the sale of the Sale Shares of any regulation or statute
administered by the Office of Foreign Assets Control of the United States
Treasury Department (“U.S. Economic
Sanctions”), including, without limitation, using the proceeds of the
Sale Shares to fund, directly or indirectly, any business activities with, or
for the benefit of, a government, national, resident or legal entity of Cuba,
Sudan, Iran, Myanmar, or any other country with respect to which U.S. persons,
as defined in U.S. Economic Sanctions, are prohibited from doing
business.
|
11.
|
|
11.1
|
Subject
to clause 11.2 and to clause 12, each Party:-
|
|
(A)
|
shall
treat as strictly confidential the provisions of this Agreement and the
process of their negotiation and all information about the other Party
obtained or received by it as a result of negotiating, entering into or
performing its obligations under this Agreement (“Confidential
Information”); and
|
|
|
(B)
|
shall
not, except with the prior written consent of each other Party (which
shall not be unreasonably withheld or delayed), make use of (save for the
purposes of performing its obligations under this Agreement) or disclose
to any person any Confidential
Information.
|
Clause
11.1 shall not apply if and to the extent that the Party or its Affiliates
disclosing Confidential Information can demonstrate that:
|
|
(A)
|
such
disclosure by such Party and/or its Affiliates is required by law or is
required or requested by any supervisory, regulatory or governmental body
having jurisdiction over it (including but not limited to the Securities
and Futures Commission, the Hong Kong Stock Exchange) and whether or not
the requirement or request has the force of law;
or
|
18
|
|
(B)
|
such
disclosure by such Party and/or its Affiliates is to its professional
advisers in relation to the negotiation, entry into or performance of this
Agreement or any matter arising out of the
same;
|
|
|
(C)
|
in
the case of the Investor, such disclosure is to its Affiliates and its and
their respective directors, officers, employees, agents and advisers and
any investor or fund manager of the
Investor;
|
|
|
(D)
|
such
disclosure is required to facilitate the Listing Process and to be made
pursuant to clause 5.1;
|
|
|
(E)
|
such
disclosure is required and necessary for the satisfaction of any of the
Conditions;
|
|
|
(F)
|
in
the case of a disclosure or use, the Confidential Information concerned
was lawfully in its possession (as evidenced by written records) prior to
its being obtained or received as described in clause 11.1(A);
or
|
|
|
(G)
|
in
the case of a disclosure or use, the Confidential Information concerned
has come into the public domain other than through its fault or the fault
of any person to whom such Confidential Information has been disclosed in
accordance with clause 11.1(B).
|
The
restrictions contained in this clause 11 shall survive Completion and shall
continue without limit of time.
|
11.4
|
Where any
confidential information is also privileged, the waiver of such privilege is
limited to the purposes of this Agreement and does not, and is not intended to,
result in any wider waiver of the privilege. Any Party in possession of any
confidential information relating to any other Party (a “privilege holder”)
shall take all reasonable steps to protect the privilege of the privilege holder
therein and shall inform the privilege holder if any step is taken by any other
person to obtain any of its privileged confidential information.
|
12.
|
|
12.1
|
Subject
to clause 12.2, and whether or not any restriction contained in clause 11
applies, no Party shall make any announcement, (including, without limitation
any communication to the public or to all or any of the employees of the
Company) concerning the provisions or subject matter of this Agreement or
containing any information about any other Party without the prior written
approval of all the other Parties (which shall not be unreasonably withheld or
delayed) nor shall any Party use the name of Xxxxxxx, Sachs & Co., or any
Affiliate of the Investor without obtaining in each instance the prior written
consent of Investor.
19
Clause
12.1 shall not apply if and to the extent that such announcement is required for
the Party and/or its Affiliates by law or by any supervisory, regulatory or
governmental body having jurisdiction over it or in connection with the Listing
Process or in the case of the Investor and/or its Affiliates to its Affiliates
and its and their respective directors, officers, employees, agents and advisers
and its investors and/or fund managers and whether or not the requirement has
the force of law and provided that any such announcement shall be made only
after consultation with the other parties.
The
restrictions contained in this clause 12 shall survive Completion and shall
continue without limit of time.
This
Agreement shall be binding upon and enure for the benefit of the successors of
the parties but shall not be assignable, except for an assignment by the
Investor to any of its Affiliates. Any purported assignment, except for an
assignment by the Investor to any of its Affiliates, shall be void.
|
13.2
|
This
Agreement, together with any documents referred to in it, constitutes the whole
agreement between the parties relating to its subject matter and supersedes and
extinguishes any prior drafts, agreements, and undertakings, whether in writing
or oral, relating to such subject matter.
The
Warranties, the Richwise Warranties and all other provisions of this Agreement,
in so far as the same shall not have been performed at Completion, shall remain
in full force and effect notwithstanding Completion.
|
|
(A)
|
The
rights, powers, privileges and remedies provided in this Agreement are
cumulative and are not exclusive of any rights, powers, privileges or
remedies provided by law or
otherwise.
|
|
|
(B)
|
No
single or partial exercise of any right, power, privilege or remedy under
this Agreement shall prevent any further or other exercise thereof or the
exercise of any other right, power, privilege or
remedy.
|
|
13.5
|
If any
provision of this Agreement shall be held to be illegal, void, invalid or
unenforceable under the laws of any jurisdiction, the legality, validity and
enforceability of the remainder of this Agreement in that jurisdiction shall not
be affected, and the legality, validity and enforceability of the whole of this
Agreement in any other jurisdiction shall not be affected.
|
13.6
|
The
provisions contained in each clause and/or sub-clause of this Agreement shall be
enforceable independently of the others and the invalidity of any one provision
shall not affect the validity of the others.
20
|
13.7
|
No
variation of this Agreement shall be binding on any Party unless and to the
extent that the same is recorded in a written agreement duly entered into by all
Parties.
|
13.8
|
This
Agreement may be executed in any number of counterparts, which shall together
constitute one Agreement. Any Party may enter into this Agreement by signing any
such counterpart.
|
13.9
|
Save as
otherwise expressly provided herein, each Party shall bear its own costs arising
out of or in connection with the preparation, negotiation and implementation of
this Agreement.
|
13.10
|
|
|
(A)
|
Any
notice or other communication required to be given under this Agreement or
in connection with the matters contemplated by it shall, except where
otherwise specifically provided, be in writing in the English language and
shall be addressed as provided in clause 13.10(B) and may
be:
|
|
|
(1)
|
personally
delivered, in which case it shall be deemed to have been given upon
delivery at the relevant address;
or
|
|
|
(2)
|
if
within Hong Kong, sent by pre-paid post, in which case it shall be deemed
to have been given two Business Days after the date of posting;
or
|
|
|
(3)
|
if
from or to any place outside Hong Kong, sent by pre-paid airmail or by air
courier, in which case it shall be deemed to have been given seven
Business Days after the date of posting in the case of airmail or two
Business Days after delivery to the courier in the case of air courier;
or
|
|
|
(4)
|
sent
by fax, in which case it shall be deemed to have been given when
despatched, subject to confirmation of uninterrupted transmission by a
transmission report provided that any notice despatched by fax after 17.00
hours (at the place where such fax is to be received) on any day shall be
deemed to have been received at 08.00 on the next Business
Day.
|
|
|
(B)
|
The
addresses and other details of the parties referred to in clause 13.8(A)
are, subject to clause 13.8(D):
|
For the
Selling Shareholders:
|
Name:
|
Xx
Xxx Shuipan
|
|
|
Address:
|
Xidelong
Industrial Zone
|
|
|
Wudi,
Chendai
|
||
|
Jinjiang
|
||
|
Fujian
Province
|
||
|
China
|
||
|
Fax
number:
|
(00)
000 0000 0000
|
21
|
Name:
|
Richwise
International Investment Group Ltd
|
|
|
For
the attention of:
|
Xx
Xxxxx Xxx
|
|
|
Address:
|
0/X,
Xxxx Xxxxx
|
|
|
0
Xxxxx Xxxxxx
|
||
|
Xxxxxxxx
Xxx
|
||
|
Xxxx
Kong.
|
||
|
Fax
number:
|
(000)
0000 0000
|
|
|
For
the Investor:
|
||
|
Name:
|
Elevatech
Limited
|
|
|
For
the attention of:
|
Xxxxxxx
Xxxx / Xxxxx Xxx
|
|
|
Address:
|
c/o
Goldman Sachs (Asia) L.L.C.
|
|
|
68/F,
Xxxxxx Kong Xxxxxx
|
||
|
0
Xxxxx’x Xxxx Xxxxxxx
|
||
|
Xxxx
Xxxx
|
||
|
Fax
number:
|
x000
0000 0000
|
|
|
(C)
|
In
proving service of any notice it shall be sufficient to
prove:
|
|
|
(1)
|
in
the case of a notice sent by post that such notice was properly addressed,
stamped and placed in the post;
|
|
|
(2)
|
in
the case of a notice personally delivered that it was declined to or left
at the specified address;
|
|
|
(3)
|
in
the case of a notice sent by fax that it was duly despatched to the
specified number as confirmed by a transmission report;
and
|
|
|
(4)
|
in
the case of a notice sent by air courier that it was delivered to a
representative of the courier.
|
|
|
(D)
|
Any
Party may notify the other parties of any change to its address or other
details specified in clause 13.8(B) 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.
|
|
14.
|
|
14.1
|
Failure
by any Party at any time or times to require performance of any provision
of this Agreement shall in no manner affect his right to enforce such
provision at a later time.
|
|
14.2
|
No
waiver by any Party of any condition or the breach of any term, covenant,
representation or warranty contained in this Agreement (whether by conduct
or otherwise) shall be deemed to be, or construed as, a further or
continuing waiver of any such condition or breach or a waiver of any other
condition or be deemed to be, or construed as, the breach of, or a waiver
of, any other term, covenant, representation or warranty contained in this
Agreement.
|
22
|
15.1
|
This
Agreement shall be governed by, and construed in accordance with, the laws of
Hong Kong.
|
15.2
|
|
|
(A)
|
Any
dispute, controversy or claim arising out of or relating to this
Agreement, or the breach, termination or invalidity thereof, shall be
settled by arbitration in Hong Kong under the UNCITRAL Arbitration Rules
in accordance with the Hong Kong International Arbitration Centre (HKIAC)
Procedures for the Administration of International Arbitration in force at
the date of this Agreement. The HKIAC shall be the arbitration
commission.
|
|
|
(B)
|
The
seat of the arbitration shall be Hong Kong and the arbitration shall take
place at the HKIAC. The appointing authority shall be the HKIAC. There
shall be three arbitrators, one of whom shall be nominated by the
Investor, one of whom shall be jointly nominated by the other Parties to
the arbitration and one of whom shall be nominated by the HKIAC, who shall
act as the chairman of the tribunal. The award shall be given by majority
decision. If there be no majority, the award shall be made by the Chairman
of the tribunal alone.
|
|
|
(C)
|
The
language to be used in the arbitral proceedings shall be
English.
|
|
|
(D)
|
By
agreeing to arbitration pursuant to this clause, the parties waive
irrevocably their right to any form of appeal, review or recourse to any
state court of other judicial authority, insofar as such waiver may
validly be made.
|
|
|
(E)
|
Any
Party shall have the right to seek interim injunctive relief from a court
of competent jurisdiction, both before and after the arbitrators have been
appointed, at any time up until the arbitrators have made their final
award.
|
AS WITNESS the hands
of the duly authorised representatives of the parties on the date first before
written.
23
|
SIGNED
by Xx Xxx Shuipan
|
)
|
 |
|
SIGNED
by Xx Xxxxx Xxx
duly
authorised for and on
behalf
of Richwise International
Investment
Group Limited
|
)
)
)
)
|
 |
|
)
|
 |
|
|
SIGNED
by Mr Xxxxx Xxxxx
duly
authorised for and on
behalf
of the Elevatech Limited
|
)
)
)
|
 |
|
SIGNED
by Xx Xxx Shuipan
duly
authorised for and on
behalf
of Xdlong International
Company
Limited
|
)
)
)
)
|
 |
68
