EXHIBIT 4.9
SHENYANG AUTOMOTIVE INDUSTRIAL ASSET MANAGEMENT CO., LTD.
EQUITY TRANSFER CONTRACT
This Contract is entered into on the 29th day of December 2003 in Shenyang.
ARTICLE 1 PARTIES TO THE CONTRACT
1.1 Transferor:
Party A: Shenyang Industry State-owned Asset
Management Co., Ltd.
Address: 19th Floor, Yinji Plaza, No. 9 Xxxxx Xxx Rd,
Heping District, Shenyang City
Legal XXXX, Xxxx
Representative:
1.2 Transferees:
Party B: Shenyang JinBei Automotive Industry Holdings
Company Limited
Address: # 1 Shiji Road Hunnan Property Development
Zone, Shenyang New High-Tech Development
District
Legal HONG, Xing
Representative:
Party C: Shenyang Xinjinbei Investment and Development
Co., Ltd.
Address: # 1 Shiji Road Hunnan Property Development
Zone, Shenyang New High-Tech Development
District
Legal HONG, Xing
Representative:
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ARTICLE 2 EQUITY TRANSFER
2.1 The subject of transfer under this Contract shall be the 100% equity
held by Party A in Shenyang Automobile Industry Company Limited
(hereinafter referred to as the "SAIAM"). Party A agrees to transfer
90% and 10% of the equity it holds in the SAIAM to Party B and Party C,
respectively, pursuant to the terms and conditions hereunder, and Party
B and Party C each agrees to accept the transfer of the above equity
held by Party A in SAIAM. Upon the consummation of the above equity
transfer, Party B shall hold 90% of the equity of SAIAM, Party C shall
hold 10% of the equity of SAIAM, while Party A shall no longer hold
equity in SAIAM.
2.2 The Parties hereby acknowledge that, the equity transfer contemplated
in the above Article 2.1 shall be a transfer including rights, i.e.,
upon the consummation of such equity transfer, all respective rights
and obligations of the equity thus transferred shall be enjoyed and
assumed by Party B and Party C according to the ratio of their equity
share.
ARTICLE 3 PRICE OF THE EQUITY TRANSFER AND PAYMENT
3.1 The Parties agree that, the aggregate transfer price of 100% of the
equity in SAIAM shall be RMB 1.00, in which, RMB 0.90 shall be paid to
party A in cash by Party B, while RMB 0.10 shall be paid to party A in
cash by Party C.
3.2 The taxes incurred as a result of the above equity transfer shall be
born by Party B and Party C.
3.3 The Parties hereby acknowledge that the proceeds from the above equity
transfer shall be paid to Party A on the date of the execution of this
Contract.
ARTICLE 4 COVENANTS, WARRANTIES AND OBLIGATIONS OF THE TRANSFEROR
The Transferor hereby covenants and warrants to the Transferees as
follows:
4.1 SAIAM is duly organized and validly existing with legal person business
license.
4.2 The Transferor is the lawful holder of the subject equity and has paid
all consideration in full amount required to legally acquire the
subject equity. No mortgage, pledge or other encumbrance or other third
party right has been created on the subject equity by the Transferor.
The subject equity is not under any enforcement by any court.
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ARTICLE 5 COVENANTS AND WARRANTIES OF THE TRANSFEREES
The Transferees each hereby covenants and warrants to the Transferor as
follows:
5.1 According to the relevant provisions of existing laws and
administrative regulations, each of the Transferees has the right to
accept the transfer of the subject equity under the terms and
conditions of this Contract and to become a shareholder of SAIAM.
5.2 The execution and performance of this Contract by any Transferee does
not constitute any impediment to the relationship between such
Transferee and any third party (including but not limited to any
contract, agreement, instrument and/or other binding arrangement
entered into by such Transferee and a third party that have become or
will become effective). Any relationship between any of the Transferees
and any third party (including but not limited to any contract,
agreement, instrument and/or other binding arrangement entered into by
such Transferee and a third party that have become or will become
effective) shall not constitute a legal impediment to the execution and
performance of this Contract.
Article 6 Approval and Filing Procedures of the Equity Transfer
6.1 The Transferor and the Transferees hereby agree to actively proceed
with and complete the approval and filing procedures required for the
consummation of this equity transaction after the execution of this
Contract according to laws and regulations, including but not limited
to:
(1) undergoing the discussion and approval procedures of the
corporate authority according to their respective articles of
association;
(2) undergoing the approval procedures for transfer of state-owned
equity;
(3) undergoing the examination and approval procedures with
securities regulatory authorities; and
(4) undergoing registration and filing procedures with company
registration authorities.
Article 7 Breach of Contract
7.1 After the execution of this Contract, the Transferor and the
Transferees shall perform this Contract in strict compliance with the
provisions hereunder. Any Party in breach of this Contract shall be
held liable for such breach according to the provisions hereunder. In
the event of losses caused to a non-breaching Party, the breaching
Party shall indemnify the non-breaching Party for the losses and
expenses, excluding those losses and expenses resulting from a force
majeure.
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7.2 In the event of breach of Contract by any Party, any non-breaching
Party shall have the right to take one or more of the following
remedial measures to protect its rights:
(1) suspension of the performance of its obligations hereunder or
other relevant obligations until the elimination of such
breach of Contract, which suspension of performance of
obligations by a non-breaching Party shall not constitute the
non-performance or delay in performance of obligations by such
party. A breach penalty of 0.021% of the equity transfer price
for each day when such breach persists shall be paid to the
non-breaching Party.
(2) termination of this Contract by written notice, in which case,
this Contract shall be terminated on the date the written
notice is serviced to the breaching Party by any non-breaching
Party; and
(3) the breaching Party shall promptly indemnify the non-breaching
Party for all losses and expenses the non-breaching Party
sustained as a result of the breach by the breaching Party,
regardless whether this Contract would continue to be
performed.
Article 8 Effectiveness, Amendment and Termination
8.1 This Contract shall become effective upon the satisfaction of all of
the following conditions:
(1) This Contract shall have been executed by the authorized
representatives of the Transferor and the Transferees and with
their respective company seals affixed hereto;
(2) This equity transfer shall have been approved by the
administrative authorities of state-owned assets;
(3) This equity transfer shall have been examined by and received
no objections from China Securities Regulatory Commission; and
(4) China Securities Regulatory Commission shall have exempted the
Transferees from the obligations of tender offer in connection
with Shenyang Jinbei Automotive Company Limited.
8.2 This Contract may be amended through consultation among the Parties, or
upon the occurrence of other circumstances as provided by laws and
regulations or in the covenants contained in this Contract.
8.3 Any amendment to this Contract shall be made in writing and signed by
the Parties. Otherwise, no amendment shall become binding upon either
the Transferor or the Transferees.
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8.4 The Transferor and the Transferees may terminate this Contract through
consultation, subject to compliance with laws.
8.5 The amendment and termination of this Contract shall not affect the
parties' right to claim damages. Any losses incurred by any Party due
to the amendment or termination of this Contract shall be compensated
by the Party that is responsible for such amendment or termination,
unless such Party is exempted from such liability pursuant to laws or
provisions of this Contract.
8.6 Upon the termination of this Contract pursuant to the above provisions,
the Transferor shall immediately return to the Transferees the paid
equity transfer proceeds together with interest and/or other amounts,
if any. In the event of breach of this Contract by any Party prior to
the termination of this Contract, the other Parties shall have the
right to claim compensation according to the provisions in Article 7
hereof.
Article 9 Applicable Law and Settlement of Dispute
9.1 The execution, effectiveness, interpretation, performance and dispute
settlement of this Contract shall be governed by the laws of the
People's Republic of China.
9.2 The Transferor and the Transferees shall first settle the disputes
arising out of or in connection with this Contract through
consultation, failing which, the Transferor and the Transferees agree
to submit such disputes to the competent local court for resolution
through litigation.
Article 10 Miscellaneous
10.1 This Contract shall have 9 counterparts, each of which shall have the
same force.
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Transferor:
Shenyang Industry State-owned Asset Management Co., Ltd.
Legal Representative or Authorized Representative: /s/ Xxxx Xxxx
--------------------
Transferees:
Shenyang JinBei Automotive Industry Holdings Company Limited
Legal Representative or Authorized Representative: /s/ Xing Hong
--------------------
Shenyang Xinjinbei Investment and Development Co., Ltd.
Legal Representative or Authorized Representative: /s/ Xing Hong
--------------------
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