PURCHASE AND SALE AGREEMENT
THIS
AGREEMENT is dated September 9, 2010, between Shenzhen Yuzhilu Aviation Service Co., Ltd, a
subsidiary of Universal Travel Group (“Seller”), and Shenzhen Xunbao E-Commerce Co., Ltd (“Buyer”). For value
received, Seller and Buyer agree as follows:
ARTICLE
I
PURCHASE AND
SALE
1.1. Purchase
and Sale. Subject to the terms of this Agreement,
Seller agrees to sell the Properties, as defined in Section 1.2 below, to Buyer
and Buyer agrees to purchase the Properties from Seller.
1.2. Properties. The Properties
are:
(a) 1523 units of TripEasy Kiosks
which are installed at
different properties by Seller for the sale of air-tickets, hotel and package
tour booking. Such kiosks are invented and developed by the Seller in regard to
the hardware and software and will be sold to the Buyer in
whole.
(b) To the extent assignable or
transferable, equivalent interests in all agreements and other rights relating
to the Leases, and any other of the following: equipment purchase or
sale agreements; net profits agreements; business processing, balancing and
transportation
agreements;
(c) Operating agreements; area of mutual
interest agreements; sand claims and causes of action arising after the Closing
out of any of the items described in this paragraph (“Contracts”);
(d) copies of all of Seller’s data, records and information relating to the
Leases, the transfer of which is not prohibited, including, without limitation,
air-tickets, hotel and packaged tour booking data and interpretations;
production records; land, legal, title and contract files; and
revenue, expense and other accounting records
for the twelve month period preceding Closing (“Data”).
1.3. Definitions. As used in this
Agreement:
“Agreement” has the meaning specified in the
preamble hereof.
“Buyer” has the meaning specified in the
preamble
hereof.
“Buyer’s Title Review” has the meaning specified in Section
6.3.
“Closing” has the meaning specified in Section
2.1.
“Closing Date” has the meaning specified in Section
2.1.
“Contract” has the meaning specified in Section
1.2(c) above.
“Defensible Title” means with respect to the Leases, such
record title and ownership by Seller that:
(a) Obligates Seller to bear not greater
than the payments received from Buyer.
(b) is free and clear of all Liens, except
Permitted Liens;
(c) reflects that all bonuses, royalties, rentals
and other payments due with respect to such Lease have been properly and timely
paid; and
(d) reflects that all consents to
assignment, notices of assignment or preferential purchase rights which are
applicable to or must be
complied with in connection with the transaction contemplated by this Agreement,
or any prior sale, assignment or the transfer of such Lease, have been obtained
and complied with.
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“Excluded
Records” means
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(a)
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subsidiary, financial, Tax, and
legal data and records of Seller that relate to Seller’s business
generally and are not predominantly related to the
Properties;
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(b)
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all
legal records and legal files of Seller that may be protected by
attorney-client privilege (exclusive of Leases, title opinions and
Contracts in respect of the Properties);
and
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(d)
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all data and records directly
relating to the sale of the Properties, including without limitation,
communications with advisors or representatives of Seller and records of
negotiations with third
parties.
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“Governmental
Authority” means any federal, state, local or foreign government or governmental
regulatory body and any of their respective subdivisions, agencies,
instrumentalities, authorities, courts or tribunals.
“Indemnified
Party” has the meaning specified in Section 11.2(a).
“Indemnifying
Party” has the meaning specified in Section 11.2(a).
“Injunction” means a temporary restraining order,
preliminary or permanent injunction or other order issued by a court of
competent jurisdiction, an order of a Governmental Entity having jurisdiction
over any party hereto, or any legal restraint or prohibition.
“Law” means any federal, state, local or
foreign law, statute, rule, ordinance, code or regulation.
“Leases”
has the meaning specified in Section 1.2(a) above.
“Legal
Proceeding” means any judicial, administrative or arbitral action, suit,
proceeding (public or private), litigation, investigation, complaint, claim or
governmental proceeding.
“Lien”
means any lien, pledge, mortgage, deed of trust, security interest, attachment,
right of first refusal, option, easement, covenant, encroachment, or any other
adverse claim whatsoever.
“Litigation” shall mean the Legal Proceedings,
Orders and Official Actions.
“Losses”
has the meaning specified in Section 11.1(d).
“Material
Adverse Effect” shall mean:
(i) As to Buyer, any breach of Buyer’s representations and warranties, which
individually or in the aggregate would materially impair Buyer’s ability to consummate the
transactions contemplated by this Agreement or prevent the consummation of any
of the transactions contemplated
hereby.
(j) As to Seller, any breach of
Seller’s representations and warranties, which
individually or in the aggregate would materially impair Seller’s ability to consummate the
transactions contemplated by this Agreement or prevent the consummation of any of the transactions
contemplated hereby.
“Official
Action” shall mean any domestic or foreign decision, order, writ, injunction,
decree, judgment, award or any determination, both as presently existing and
effective and as may become effective in the future, by any court,
administrative body, or other tribunal.
“Order”
means any order, judgment, Injunction, ruling, writ, award, decree, statute,
law, ordinance, rule or regulation.
“Permit”
means any permit, license, certificate (including a certificate of occupancy)
registration, and authorization, application, filing, notice, and qualification,
waiver of any of the foregoing or approval of a Governmental
Authority.
“Permitted
Liens” means: (i) Liens for Taxes that are not yet due and
payable or that are being contested in good faith by appropriate proceedings,
(ii) operators’ liens and statutory liens, for taxes, assessments, labor
and materials, where payment is not due (or that, if delinquent, are being
contested in good faith); (iii) operating agreements, unit agreements,
unitization and pooling designations and declarations, and other contracts,
agreements and installments that do not have a Material Adverse Effect or
unreasonably interfere with the operation of the
Properties; (iv) statutory or regulatory authority of governmental
agencies; (v) liens, charges, encumbrances and irregularities in the chain
of title which, because of remoteness in or passage of time, statutory cure
periods, marketable title acts or other similar reasons, have not materially
affected or interrupted, and are not reasonably expected to materially affect or
interrupt, theclaimed ownership of the party or the receipt of production
revenues from the Properties affected thereby.
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“Person”
means any natural person, corporation, partnership, limited liability Company,
trust, unincorporated organization, Governmental Authority, or other
entity.
“Purchase
Price” has the meaning specified in Section 3.1.
“Schedule” means a disclosure schedule provided
by Seller to Buyer
pursuant to this Agreement.
“Seller” has the meaning specified in the
preamble hereof.
“Subsidiaries”
means, with respect to any Person, each entity as to which such Person (either
alone or through or together with any other Subsidiary) (i) owns beneficially or
of record or has the power to vote or control, 50% or more of the voting
securities of such entity or of any class of equity interests of such entity the
holders of which are ordinarily entitled to vote for the election of the members
of the Board of Directors or other persons performing similar functions, (ii) in
the case of partnerships, serves as a general partner, (iii) in the case of a
limited liability company, serves as a managing member or owns a majority of the
equity interests or (iv) otherwise has the ability to elect a majority of
the directors, trustees or managing members thereof.
“Tax” or
“Taxes” means all income, profits, franchise, gross receipts, capital, sales,
use, withholding, value added, ad valorem, transfer, employment, social
security, disability, occupation, asset, property, severance, documentary,
stamp, excise and other taxes, duties and similar governmental charges or
assessments imposed by or on behalf of any Governmental Authority and any
interest, fines, penalties or additions relating to any such tax, duty,
charge or assessment.
“Tax
Return” means any return, report, information statement, or similar statement
required to be filed with respect to any Taxes (including any attached
schedules), including, without limitation, any information return, claim for
refund, amended return and declaration of estimated Tax.
“Title
Defect” has the meaning specified in Section 6.3.
ARTICLE
II
CLOSING
2.1. Closing. The
Closing of the transactions contemplated hereby (the “Closing”) shall take place
upon the execution of this Agreement and satisfaction of obligations
(or waiver in writing prior to the Closing thereof) pursuant to
Articles VII and VIII of this agreement (such date, the “Closing Date”).
After the
Closing, the Seller shall not engage in the operation of the kiosks, but Seller
shall have exclusive travel product sales right in all kiosks for two years from
the Closing Date.
2.2. Proceedings
at Closing. All
proceedings to be taken and all documents to be executed and delivered
by all parties at the Closing shall be deemed to have been taken and executed
simultaneously, and no proceedings shall be deemed taken nor any documents
executed or delivered until all have been taken, executed and delivered.
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ARTICLE
III
SALE AND PURCHASE
CONSIDERATION
3.1. Amount of
Consideration. The total purchase price to be paid by
Buyer to Seller in consideration of the Properties (the “Purchase Price”) shall be RMB 40,301,417.73, to be
paid in installments as
provided in Section 3.2 below.The total number of installed TripEasy Kiosks
comprising the Properties up to now is 1523 units with original consideration of
RMB 45,093,139. Excluding the accumulative
depreciation of RMB 6,902,069.97, the net value should be RMB
38,191,069.03. Given that Sellerpreviously paid an
advance for the lease of the kiosks in the amount of RMB 2,110,348.70, Buyer should pay the total amount of
RMB 40,301,417.73. The exact payment terms and payment
duration should be
negotiated between the Buyer and the Seller as provided in Section 3.2
below.
3.2. Form and Timing for Payment
of Consideration. Buyer
and Seller hereby agree that consideration for the Properties shall be paid as
follows:
(a) The Buyershall pay the amount of RMB10, 000,000.00 to Buyer
within five (5) days ofthe Closing Date;
(b) After
a comprehensive visual check by the Buyer of all installed kiosks, the
Buyershallpay the second amount of RMB15,000,000.00 to Seller within 30 days of
the Closing Date and take charge of all kiosks after payment;
(c) The
Buyer, should make the remaining portion of the Purchase Price within 90 days of
the Closing Dateor within five (5) days of Seller’s completion of the
development of new interface and functions for the Properties, whichever is
earlier.
Such
terms of payment may be subject to change only upon the prior mutual written
consent of both Buyer and Seller.
ARTICLE
IV
REPRESENTATIONS AND
WARRANTIES OF SELLER
Seller hereby represents and warrants
to Buyer:
4.1. Organization
and Good Standing. Seller is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and has all requisite power and authority to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby.
4.2. Authorization
of Agreement. The execution and delivery
of this Agreement by Seller and the performance of the transactions
contemplated herein by
Seller have been, or will be prior to Closing, duly authorized by all necessary
action, and no other action on the part of Seller is (or will be) necessary to
authorize this Agreement or consummate the transactions contemplated
hereby. This
Agreement has been duly and validly executed and delivered by Seller and
constitutes a valid and binding obligation of Seller and is enforceable against
Seller in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization and similar
laws affecting creditors generally and by the availability of equitable
remedies.
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4.3. Conflicts,
Consents of Third Parties. Neither the execution and
delivery by Seller of this Agreement nor consummation or performance by Seller of the transactions
contemplated hereby to be consummated or performed by Seller
will: (a) violate any Law, (b) violate the certificate of
organization or bylaws of Seller, (c) violate any Order to which Seller is a
party or by which Seller is bound, (d) breach the provisions of
any contract or agreement to which Seller is a party, or (e) require any consent
from, authorization or approval or other action by, notice to or declaration,
filing or registration with any Governmental Authority except for governmental consents and
approvals that are customarily obtained after Closing.
4.4. Brokers. Seller has not paid or
become obligated to pay any fee or commission to any broker, finder or
intermediary in connection with the transactions contemplated hereby for which the Buyer shall
have any liability following the Closing.
4.5. Litigation. As of the date of this
Agreement there is no suit, action or proceeding pending, or, to the knowledge
of Seller, threatened against or affecting Seller or its interest in the Properties that is
reasonably likely to have a Material Adverse Effect on Seller or the
transactions contemplated in this Agreement, nor is there any judgment, decree,
injunction, rule or order of any Governmental Entity or arbitrator outstanding against Seller that is
reasonably likely to have a Material Adverse Effect on
Seller.
4.6. Title to
Properties. Seller
has Defensible Title to the interests in the Leases.
4.7. Taxes and
Assessments. Seller has caused to be
timely filed all material
Tax returns relating to the Properties the failure to pay which could result in
the placement of a Lien on all or a portion of the Properties. Seller
has paid or caused to be paid all ad valorem, property, and similar Taxes,
except those being contested in good faith and disclosed to
Buyer in writing. Seller has not received written notice of any
pending claim against Seller from any applicable taxing authority for assessment
of Taxes with respect to the Properties. There are no audits of
Seller by any applicable taxing authority with
respect to Taxes attributable to the Properties. Except for statutory
liens for property taxes and ad valorem taxes, there are no tax liens on or with
respect to the Properties.
4.8. Compliance
with Laws. To
the knowledge of Seller,
Seller is in possession of all material Permits necessary to own, lease and
operate its Properties and to carry on its business with respect to the
Properties as it is now being conducted, except where the failure to be in
possession of any of the Permits would not have a
Material Adverse Effect and there is no action, proceeding or, to the knowledge
of Seller, investigation pending or threatened regarding suspension or
cancellation of any of the Permits. Seller is not in conflict
with, or in default or violation of, (a) any
Law to which any of the Properties is bound or subject or (b) any of the
Permits, except where such conflict, default or violation would not have a
Material Adverse Effect.
4.9. Forward
Sales. Seller
is not obligated by virtue
of a take or pay payment, advance payment or other similar payment to deliver or
proceeds from the sale thereof, attributable to the Leases at some future time
without receiving payment therefore at or after the time of delivery,
applicable to the transactions
contemplated by this Agreement, except for governmental consents and approvals
of assignments that are customarily obtained after Closing.
4.10. Contracts. Neither
Seller nor any other party is in default under any Contract except for such
defaults as would not have a Material Adverse Effect. There are no
Contracts with Affiliates of Seller which will be binding on the Properties
after Closing.
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ARTICLE
V
REPRESENTATIONS AND
WARRANTIES OF BUYER
Buyer hereby represents and warrants to
Seller as follows:
5.1. Organization
and Good Standing. Buyer is a limited
liability company duly organized, validly existing and in good standing under
the laws of the PRC. Buyer has all requisite power and
authority to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby and thereby to be consummated by
it.
5.2. Authorization
of Agreement. The execution and delivery
of this Agreement by Buyer and the performance of the transactions
contemplated herein by the Buyer have been duly authorized by all necessary
action by the Buyer, and no other action on the part of Buyer is necessary to
authorize this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Buyer and
constitutes a valid and binding obligation of Buyer and is enforceable against
Buyer in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors generally and by
the availability of equitable remedies.
5.3. Conflicts,
Consents of Third Parties. Neither the execution and
delivery by Buyer of this Agreement nor consummation or performance by Buyer
of the transactions contemplated hereby to be consummated or performed by Buyer
will: (a) violate any Law, (b) violate the certificate of
incorporation or bylaws of Buyer, (c) violate any Order to which Buyer is a
party or by which Buyer is bound
(d) violate any loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, or license
applicable to Buyer, (e) any joint venture or other ownership
arrangement of Buyer or (f) require any
consent from, authorization or approval or other action by, and no notice to or
declaration, filing or registration with any Governmental Authority.
5.4. No
Default. Except
as would not reasonably be expected to have a Material Adverse Effect on Buyer, Buyer is
not in default or violation of any term, condition or provision of (a) the
certificate of incorporation or bylaws of Buyer, (b) any loan or credit
agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession,
franchise or license to which Buyer is now a party or by which Buyer or any of
its properties or assets is bound, or (c) any Order applicable to
Buyer.
5.5. Litigation. As of the date of this
Agreement there is no suit, action or proceeding pending, or, to the
knowledge of Buyer, threatened against or affecting Buyer that is reasonably
likely to have a Material Adverse Effect on Buyer, nor is there any judgment,
decree, injunction, rule or order of any Governmental Authority or arbitrator outstanding against
Buyer that is reasonably likely to have a Material Adverse Effect on
Buyer.
5.6. Brokers. Buyer has not paid or
become obligated to pay any fee or commission to any broker, finder or
intermediary in connection with the transactions contemplated hereby for
which Seller shall have any liability following the Closing.
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ARTICLE
VI
ADDITIONAL
AGREEMENTS
6.1. Further
Actions. At any
time from and after the Closing, at the request of a party and
without further
consideration, each other party shall promptly execute and deliver such further
agreements, certificates, instruments and documents and perform such other
actions, at no cost to such party, as the requesting party may reasonably
request in order to fully consummate the transactions
contemplated hereby and carry out the purposes and intent of this
Agreement.
6.2. Conduct of
Business Pending Closing. Prior to the Closing Date,
Seller will (except as consented to in writing by Buyer, such consent
not to be unreasonably
withheld, or otherwise permitted under this Agreement):
(a) not terminate, materially amend, or
extend any material Contracts affecting the Properties, or enter into or commit
to enter into any new material Contract relating to the Properties, or settle, compromise or
waive any material right relating to the Properties,
(b) maintain insurance coverage on the
Properties in the amounts and of the types presently in force,
(c) maintain in full force and effect the
Leases, and pay all costs
and expenses and perform all material obligations of the owner of the Properties
promptly when due,
(d) maintain all Permits,
(e) not transfer, sell, hypothecate,
encumber, or otherwise dispose of any Properties,
(f) not grant or create any
preferential right to
purchase, right of first opportunity or other transfer restriction or
requirement with respect to the Properties, and
(g) not make any change in any method of
accounting or accounting practice or policy with respect to the Properties,
except as required by
Law.
6.3. Title Due Diligence
Examination.
From the
date of this Agreement, Seller shall afford to Buyer and Buyer’s authorized
representatives reasonable access during normal business hours to the office,
personnel and books and records of the Seller other than Excluded Records, in
order for Buyer to conduct a title examination as it may in its sole discretion
choose to conduct with respect to the Leases in order to determine whether
any defects in title of Properties (the“Title Defects”) exist (“Buyer’s Title Review”); provided,
however, that such investigation shall be upon reasonable notice and shall not
unreasonably disrupt the personnel and operations of the Seller or impede the
efforts of the Seller to comply with its other obligations under this
Agreement. Such books and records shall include all abstracts of
title, title opinions, title files, ownership maps, lease files, assignments,
division orders, operating records and agreements, well files, financial and
accounting records, geological, geophysical and engineering records, in each
case insofar as same may now be in existence and in the possession of Seller and
relate predominately to title to the Leases. The cost and expense of
Buyer’s Title Review, if any, shall be borne solely by Buyer.
If Buyer
discovers any Title Defect affecting any of the Leases, Buyer shall notify
Seller as soon as reasonably possible.
6.4. Reserved.
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6.5. Access to
Information. Upon reasonable notice,
Seller shall afford to Buyer’s officers, employees, accountants,
counsel and other representatives access, to all its books, contracts, commitments, files and
records relating to the Properties other than Excluded Records, as well as to
its officers and employees and, during such period, Seller shall furnish to
Buyer (a) a copy of each material report, schedule, and other
document filed or received by it during such
period and (b) all other information, other than Excluded Records, concerning
the Properties as such other party may reasonably request that is not subject to
a confidentiality agreement prohibiting Seller from furnishing. Buyer agrees that it
will not, and will cause its respective representatives not to, use any
information obtained pursuant to this Section 6.5 for any purpose unrelated to
the consummation of the transactions contemplated by this
Agreement. Buyer shall indemnify, defend and hold
harmless the Seller from and against any and all claims, actions, causes of
action, demands, assessments, losses, damages, liabilities, judgments,
settlements, penalties, costs and expenses (including reasonable
attorneys’ fees and expenses), of any nature
whatsoever asserted against or suffered by the Seller relating to, resulting
from or arising out of examinations or inspections made by Buyer or its
representatives pursuant to this Section 6.5. The foregoing indemnity
is not intended to negate any rights or
remedies Buyer may have under the remaining provisions
hereof.
6.6. Regulatory
Approvals. Each
party hereto shall cooperate and use its reasonable best efforts to promptly
prepare and file all necessary documentation to effect all necessary applications, notices, petitions, filings and
other documents, and use all commercially reasonable efforts to obtain (and will
cooperate with each other in obtaining) any consent, acquiescence,
authorization, order or approval of, and any exemption or
non-opposition by, any
Governmental Authority required to be obtained or made by Seller or Buyer or any
of their respective Affiliates in connection with the transactions contemplated
hereby or the taking of any action contemplated by this Agreement.
6.7. Agreement
to
Defend. In the
event any claim, action,
suit, investigation or other proceeding by any Governmental Authority or other
legal or administrative proceeding is commenced that questions the validity or
legality of the transactions contemplated hereby or
seeks damages in connection therewith, the parties hereby agree to cooperate and
use their commercially reasonable efforts to defend against and respond
thereto.
6.8. Consents
and Preferential Rights. Seller shall
promptly prepare and send
(i) notices to the holders of any required consents to assignment
requesting such consents and (ii) notices to the holders of any applicable
preferential rights to purchase requesting waivers of such preferential rights
to purchase. The consideration payable under this
Agreement for any particular property for purposes of preferential purchase
right notices shall be the portion of the Purchase Price attributable to such
property. Seller shall use commercially reasonable efforts to
cause such consents and waivers of
preferential rights to purchase (or the exercise thereof) to be obtained and
delivered prior to Closing. Buyer shall cooperate with Seller in
seeking to obtain such consents and waivers of preferential rights.
6.9. Other
Actions. Except as contemplated by
this Agreement, neither Seller nor Buyer shall, nor permit any of its Affiliates
to, take or agree or commit to take any action that is reasonably likely to
result in any of its respective representations or warranties hereunder being untrue in any material
respect or in any of the conditions to the transactions contemplated hereby set
forth in Article VI not being satisfied. Each of the parties agrees
to use its reasonable best efforts to satisfy the conditions to Closing set forth in this
Agreement.
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ARTICLE
VII
CONDITIONS
TO CLOSING
7.1. Buyer’s
Conditions. Unless otherwise waived in
writing prior to the Closing, the obligation of Buyer to complete the Closing is
subject to fulfillment prior to or at the Closing of each of the following
conditions:
(a) No Legal
Proceeding. At
the Closing, no Legal Proceeding shall be pending or threatened seeking to
enjoin or prevent, nor shall an Injunction, Order or Official Action have been
issued prohibiting, consummation of the transactions contemplated
hereby.
(b) Fulfillment
of Obligations. Seller shall have duly
performed or complied with all of the obligations and covenants to be performed
or to which compliance by Seller is required under the terms of this Agreement
at or prior to the Closing
Date.
(c) Accuracy of
Representations and Warranties. The representations and
warranties of Seller set forth herein shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date
as though made on and as
of the Closing Date.
(d) Closing
Deliveries. Seller shall have
delivered at or before Closing all of the items listed in the condition
report.
7.2. Seller’s
Conditions. Unless otherwise waived in
writing prior to Closing, the obligation of Seller to complete the
Closing is subject to fulfillment prior to or at Closing of each of the
following conditions.
(a) No Legal
Proceeding. At
the Closing, no Legal Proceeding shall be pending or threatened seeking to
enjoin or prevent, nor
shall an Injunction, Order or Official Action have been issued prohibiting,
consummation of the transactions contemplated hereby.
(b) Fulfillment
of Obligations. Buyer shall have duly
performed or complied with all of the obligations and covenants to be performed or to which compliance by
Buyer is required under the terms of this Agreement at or prior to the Closing
Date
(c) Accuracy of
Representations and Warranties. The representations and
warranties of Buyer set forth herein shall be true and correct in all material respects as of the
date of this Agreement and as of the Closing Date as though made on and as of
the Closing Date.
(d) Closing
Deliveries. Buyer shall have delivered at or before Closing
all of the items listed in Section 8.2.
ARTICLE
VIII
DELIVERIES AT
CLOSING
8.1. Deliveries
by Seller to Buyer. At the Closing, Seller
shall deliver, or shall cause to be delivered, to Buyer the
following:
(a) A certificate duly executed by the
secretary or any assistant secretary of Seller, dated the Closing Date, (i) attaching and
certifying on behalf of the Seller complete and correct copies of resolutions of
the board of directors or other governing body of Seller authorizing the
execution, delivery and performance by Seller of this Agreement and the transactions contemplated
hereby and that such authorizations are in full force and effect and have not
been rescinded or amended as of the Closing Date, and
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(c) A certificate of Seller or duly
authorized officer thereof certifying as to those matters set out in Section 7.1(a), (b)
and (c) hereof;
8.2. Deliveries
by Buyer to Seller. At the Closing, Buyer
shall deliver to each Seller the following:
(a) A certificate of a duly authorized
representative of Buyer, dated the Closing Date, (i) attaching and certifying on behalf of the
Buyer complete and correct copies of resolutions of the board of directors or
other governing body of Buyer authorizing the execution, delivery and
performance by Buyer of this Agreement and the transactions
contemplated hereby and that such authorizations
are in full force and effect and have not been rescinded or amended as of the
Closing Date, and
(b) A
certificate of Buyer or duly authorized officer thereof certifying as to those
matters set out in Section 7.2(a), (b) and (c) hereof;
ARTICLE
IX
POST-CLOSING
COVENANTS
8.1. Payment of Purchase
Price. Within 90 days from Closing, Buyer shall remit to
Seller the Purchase Price for the Properties in accordance with the terms and
conditions of payment as set forth in Section 3.2 above.
8.2. Exclusive Travel Product
Sales Rights. After the Closing, the Seller shall not engage
in the operation of the kiosks, but Seller shall have exclusive travel product
sales right in all kiosks for a period of two (2) years from the Closing
Date.
ARTICLE
X
TERMINATION
10.1. Termination. This Agreement may be terminated and
the transactions contemplated hereby may be abandoned at any time prior to the
Closing Date:
(a) by mutual written consent of the Seller
and Buyer;
(b) by the Seller or Buyer if any
Governmental Authority shall have issued any Injunction or taken any other
action permanently restraining, enjoining or otherwise
(c) prohibiting the consummation of the
transactions contemplated hereby and such Injunction or other action shall have
become final and non-appealable; or
(d) by Seller or Buyer if the other shall
have failed or refused to Close the transaction contemplated hereby or such
later date as mutually agreed.
10.2. Effect of
Termination. In the event of termination of this Agreement by
any party hereto as provided in Section 9.1, this Agreement shall forthwith
become void and there shall be no liability or obligation on the part of any
party hereto except (i) with respect to this Section 10.2, Section 13.12,
and the last sentence of Section 6.5, and (iii) to the
extent that such termination results from the willful breach by a party
hereto of any of its representations and warranties or of any of its covenants
or agreements contained in this Agreement.
10
ARTICLE
XI
INDEMNIFICATION
10.1. Assumption
and Indemnification.
(a) FROM
AND AFTER CLOSING, BUYER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER, ITS
AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND
REPRESENTATIVES (“SELLER GROUP”) FROM AND AGAINST ALL LOSSES (as defined below
in Subsection 11.1(d)) INCURRED OR SUFFERED BY SELLER GROUP:
(i) CAUSED BY OR ARISING OUT OF OR
RESULTING FROM THE ASSUMED OBLIGATIONS (defined below);
(ii) CAUSED BY OR ARISING OUT OF OR
RESULTING FROM THE
OWNERSHIP, USE OR OPERATION OF THE PROPERTIES, ON OR AFTER THE CLOSING DATE;
OR
(iii) CAUSED BY OR ARISING OUT OF OR
RESULTING FROM ANY BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT MADE BY
BUYER CONTAINED IN ARTICLE V OF THIS AGREEMENT.
Upon and after Closing, Buyer shall assume and
perform all the rights, duties, obligations and liabilities of ownership of the
Properties including, without limitation: (A) a proportionate
share of Seller’s express and implied obligations and
covenants after the Closing Date under the terms of the
Leases, the Contracts, and all other orders, rules and regulations to which the
Properties are subject; (B) a proportionate share of responsibility for all
royalties, overriding royalties, rentals, shut-in payments and other burdens or encumbrances to which
the Properties are subject accruing after the Closing Date;
(C) responsibility for compliance with all applicable Laws pertaining to
the Properties, and the procurement and maintenance of all permits required by
public authorities in connection with the
Properties after the Closing Date; and (D) all other obligations assumed by
Buyer under this Agreement (the “Assumed
Obligations”). Seller remainsresponsible for
all costs, expenses and liabilities incurred by Seller in connection with the ownership or
operation of the Properties before the Closing Date, except (A) those for
which Buyer indemnifies Seller under 11.1(a)(i) or 11.1(a)(iii); or,
(B) those arising out of specific matters or claims for which Buyer has
received an adjustment to the Purchase Price
(the “Retained
Obligations”).
(b) FROM AND AFTER CLOSING, AND EXCEPT AS
PROVIDED IN SUBSECTION 11.1(a), SELLER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS
BUYER AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND REPRESENTATIVES AGAINST AND FROM ALL LOSSES
INCURRED OR SUFFERED BY BUYER:
(i) CAUSED
BY OR ARISING OUT OF OR RESULTING FROM THE OWNERSHIP, USE OR OPERATION OF THE
PROPERTIES ON OR BEFORE THE CLOSING DATE;
(ii) ATTRIBUTABLE
TO OR ARISING OUT OF THE ACTIONS, SUITS, OR PROCEEDINGS, IF ANY, SET FORTH ON
SCHEDULE 4.5;
OR
(iii) CAUSED
BY OR ARISING OUT OF OR RESULTING FROM ANY BREACH OF ANY REPRESENTATION OR
WARRANTY MADE BY SUCH SELLER CONTAINED IN ARTICLE IV OF THIS
AGREEMENT
(iv) CAUSED BY OR ARISING OUT OF OR
RESULTING FROM THE
RETAINED OBLIGATIONS.
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(c) Damages or other claims for Title
Defects shall be exclusively handled pursuant to Section 6.3 and are excluded
from indemnification under this Article XI or otherwise.
(d) “Losses”, for purposes of this Article XI
shall mean the amount of
any actual liability, loss, cost, expense, claim, award or judgment incurred or
suffered by any Indemnified Party (as defined in Section 11.2) arising out of or
resulting from the indemnified matter, including reasonable fees and
expenses of attorneys, consultants,
accountants or other agents and experts reasonably incident to matters
indemnified against, and the costs of investigation and/or monitoring of such
matters, and the costs of enforcement of the indemnity; provided,
however, that Buyer and Seller shall not be
entitled to indemnification under this Section 11.1(d) for, and “Losses” shall not include, (i) loss of
profits or other consequential damages suffered by the party claiming
indemnification, or (ii) any special or punitive damages (other than indirect,
consequential, special or punitive damages suffered by third Persons and payable
by an Indemnified Person).
(e) The indemnity of each party provided in
this Article XI shall be for the benefit of and extend to such party’s present and former Affiliates, and
its and their respective directors, officers, employees, and
agents. Any claim for indemnity under this Article XI by any such
Affiliate, director, officer, employee, or agent must be brought and
(f) Administered by the applicable party to this
Agreement. No Indemnified Party other than Seller and Buyer shall
have any rights against either Seller or Buyer under the terms of this Article
XI except as may be exercised on its behalf by Buyer or Seller, as
applicable, pursuant to this Section
11.1(e). Seller and Buyer may elect to exercise or not exercise
indemnification rights under this Section on behalf of the other Indemnified
Parties affiliated with it in its sole discretion and shall have no liability to
any such other Indemnified Party for any
action or inaction under this Section.
(g) Notwithstanding anything to the
contrary set forth in this Agreement, Seller shall have no liability to Buyer or
its officers, directors, agents, employees and representatives or obligation to indemnify Buyer for any
specific matter or claim for which Buyer has received an adjustment to the
Purchase Price.
11.2. Indemnification
Procedures.
(a) If any third party asserts any claim
against a party to this Agreement which, if successful, would entitle the party to
indemnification under this Article XI (the “Indemnified
Party”), it shall give notice of such claim
to the party from whom it intends to seek indemnification (the “Indemnifying
Party”) and the Indemnifying Party shall
have the right to assume
the defense and, subject to Section 11.2(b), settlement of such claim at its
expense by representatives of its own choosing acceptable to the Indemnified
Party (which acceptance shall not be unreasonably withheld). The
failure of the Indemnified Party to notify the
Indemnifying Party of such claim shall not relieve the Indemnifying Party of any
liability that the Indemnifying Party may have with respect to such claim,
except to the extent that the defense is materially prejudiced by such failure. The Indemnified
Party shall have the right to participate in the defense of such claim at its
expense (which expense shall not be deemed to be a Loss), in which case the
Indemnifying Party shall cooperate in providing information to and
consulting with the Indemnified Party about
the claim. If the Indemnifying Party fails or does not assume the
defense of any such claim within 15 days after written notice of such claim has
been given by the Indemnified Party to the Indemnifying Party, the
Indemnified Party may defend against or,
subject to Section 11.2(b), settle such claim with counsel of its own choosing
at the expense (to the extent reasonable under the circumstances) of the
Indemnifying Party.
12
(b) If the Indemnifying Party does not
assume the defense of a
claim involving the asserted liability of the Indemnified Party under this
Article XI, no settlement of such claim shall be made by the Indemnified Party
without the prior written consent of the Indemnifying Party, which consent shall
not be unreasonably withheld or
delayed. If the Indemnifying Party assumes the defense of such a
claim, (i) no settlement thereof may be effected by the Indemnifying Party
without the Indemnified Party’s consent unless (A) there is no
finding or admission of any violation of Law or any violation
of the rights of any Person and no effect on any other claim that may be made
against the Indemnified Party, (B) the sole relief provided is monetary damages
that have been paid in full by the Indemnifying Party, and (C) the settlement includes, as an
unconditional term thereof, the giving by the claimant or the plaintiff to the
Indemnified Party of a release in form and substance reasonably satisfactory to
the Indemnified Party,
(c) From all liability in respect of
such claim, and (ii) the
Indemnified Party shall have no liability with respect to any compromise or
settlement thereof effected without its consent. Notwithstanding
anything in this Agreement to the contrary, the Litigation shall not be settled
or compromised on any terms and conditions
without the prior written consent of Seller’s Representative.
11.3. Limits on
Indemnification. Notwithstanding anything
to the contrary contained in this Agreement:
(a) The respective representations of the Seller and Buyer
contained in this Agreement shall survive the Closing, subject to applicable
statutes of limitation or repose.
(b) Any
payments made to Seller or the Buyer pursuant to this Article XI shall
constitute an adjustment of the Purchase Price for Tax purposes and shall be
treated as such by the Buyer and Seller on their Tax Returns.
ARTICLE
XII
TAXES
12.1. Cooperation. Each party shall provide
the other party with such cooperation and information as it reasonably may
request with respect to
the Properties in filing any Tax Return, amended Tax Return or claim for refund,
determining a liability for Taxes or a right to a refund of Taxes or
participating in or conducting any audit or other proceeding in respect of
Taxes. Each
party shall bear its own expenses in complying with the foregoing
provisions.
12.2. Sales or Use Tax, Recording
Fees and Similar Taxes and Fees. Buyer shall pay its
proportionate share of any sales, use, excise, documentary, stamp or transfer
Taxes, recording fees and similar Taxes and fees incurred and imposed upon, or
with respect to, the property transfers or other transactions contemplated
hereby. If such transfers or transactions are exempt from any such
taxes or fees upon the filing of an appropriate certificate or other evidence of
exemption, Buyer will timely furnish to Seller such certificate or
evidence.
13
ARTICLE
XIII
GENERAL
13.1. Arbitration.
(a) Except for the right to apply to a
court of competent jurisdiction for a temporary restraining order, a preliminary
injunction, or other equitable relief to preserve the status quo or prevent
irreparable harm, any controversy or failure to agree arising under this
Agreement and not resolved by agreement shall be determined by a board of
arbitration upon notice of submission
given by Buyer to Seller, or vice versa, which notice shall name a qualified,
impartial, and independent arbitrator. Within ten (10) days after the
receipt of such notice, the other party or parties shall name a
second qualified, impartial and independent
arbitrator, or failing to do so, the party giving notice shall name the second
arbitrator.
(b) The arbitrators selected to act
hereunder shall be qualified by education and experience to pass on the
particular question in
dispute. The arbitrators shall promptly hear and determine (after due
notice of hearing and giving the parties a reasonable opportunity to be heard)
the questions submitted, and shall render their decision within sixty (60) days
after appointment of the third arbitrator. If
within said period a decision is not rendered by the board, or majority thereof,
new arbitrators may be named and shall act hereunder at the election of either
Buyer or Seller in like manner as if none has been previously
named.
(c) The arbitration proceeding shall be
held in Shenzhen in accordance with the Local Arbitration regulation as in
effect on the date thereof.
(d) The decision of the arbitrators, or the
majority thereof, made in writing shall be final, binding and non-appealable upon the parties hereto as to
the questions submitted, and Buyer and Seller will abide by and comply with such
decision. The expenses of arbitration, including reasonable
compensation of the arbitrators, shall be borne equally by the parties
hereto, except that each party shall bear
the compensation and expenses of its own counsel, witnesses, and
employees.
13.2. Amendments. This Agreement may only be
amended by an instrument in writing executed by Buyer and Seller.
13.3. Waivers. The observance of any term of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively) by the party entitled to enforce such term, but
such waiver shall be effective only if it is in a writing signed by the party entitled to enforce such
term and against which such waiver is to be asserted. Unless
otherwise expressly provided in this Agreement, no delay or omission on the part
of any party in exercising any right or privilege under this Agreement
shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any right or privilege under this
Agreement operate as a waiver of any other right or privilege under this
Agreement nor shall any single or partial exercise of any right or
privilege preclude any other or further
exercise thereof or the exercise of any other right or privilege under this
Agreement.
13.4. Notices. Any notice or other
communications required or permitted hereunder shall be in writing and shall be
sufficiently given (and
shall be deemed to have been duly given upon receipt) if sent by overnight mail,
registered mail or certified mail, postage prepaid, or by hand, to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice):
(a) If to Buyer, to:
Shenzhen Xunbao E-commerce Co.,
Ltd
Room 0802, 8th floor, Duoli Technology Building,
NO.105, Meihua Road, Futian District, Shenzhen, PRC
Attn: Shifan Long
14
13.5. Successor
and Assigns, Parties in Interest. This Agreement shall be binding upon
and shall inure solely to the benefit of the parties hereto and their respective
successors, legal representatives and permitted assigns. Nothing in
this Agreement, express or implied, is intended to or shall confer upon any Person, other than the parties
hereto and their respective successors, legal representatives and permitted
assigns, any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement, and no Person shall be deemed a third party beneficiary under or by reason
of this Agreement.
13.6. Severability. If any provision of this
Agreement or the application of any such provision to any Person or
circumstance, shall be declared judicially to be invalid, unenforceable or void,
such decision shall not
have the effect of invalidating or voiding the remainder of this Agreement, it
being the intent and agreement of the parties that this Agreement shall be
deemed amended by modifying such provision to the extent necessary to render
it valid, legal and enforceable while
preserving its intent or, if such modification is not possible, by substituting
therefor another provision that is valid, legal and enforceable and that
achieves the same objective.
13.7. Entire
Agreement. This
Agreement (including the
documents and instruments executed and delivered in connection herewith)
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous agreements and
understandings, whether written or oral,
among
13.8. the parties or any of them with respect
to the subject matter hereof, and there are no representations, understandings
or agreements relating to the subject matter hereof that are not fully expressed
in this Agreement and the
documents and instruments executed and delivered in connection
herewith.
13.9. Schedules. Nothing in the Schedules
is intended to broaden the scope of any representation or warranty contained in
the Agreement or to create any covenant unless clearly specified to the contrary
herein. Any disclosure on one Schedule shall be deemed to be
disclosed on all Schedules and under the Agreement. Inclusion of any
item in the Schedules (a) shall be deemed to be disclosure of such item on all
Schedules and under the Agreement, (b) does
not represent a determination that such item is material nor shall it be deemed
to establish a standard of materiality, (c) does not represent a determination
that such item did not arise in the ordinary course of business, (d) does not represent a
determination that the transactions contemplated by the Agreement require the
consent of third parties and (e) shall not constitute, or be deemed to be, an
admission to any third party concerning such item. The Schedules
include descriptions of instruments or
brief summaries of certain aspects of Seller and the Properties. The
descriptions and brief summaries are not necessarily complete and are provided
in the Schedules to identify documents or other materials previously
delivered or made
available.
13.10. Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of the
People’s Republic of China, without giving
effect to any choice-of-law rules that may require the application of the
laws of another
jurisdiction. Venue for any proceeding hereunder shall be in
Shenzhen.
13.11. Remedies. Each of the parties hereto
acknowledges and agrees that (i) the provisions of this Agreement are
reasonable and necessary to protect the proper and legitimate interests of the other parties
hereto, and (ii) the other parties hereto would be irreparably damaged in the
event any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed that the parties
hereto shall be entitled to preliminary and permanent injunctive relief to
prevent breaches of the provisions of this Agreement by other parties hereto
without the necessity of proving actual damages upon posting of a suitable bond, and to enforce
specifically the terms and provisions hereof and thereof, which rights shall be
cumulative and in addition to any other remedy to which the parties hereto may
be entitled hereunder or at law or equity.
15
13.12. Expenses. The Seller and Buyer shall each bear
their own expenses (including, without limitation, fees and disbursements of
counsel, accountants and other experts) incurred by it in connection with the
preparation, negotiation, execution, delivery and performance of this Agreement, each of the other
documents and instruments executed in connection with or contemplated by this
Agreement and the consummation of the transactions contemplated hereby and
thereby.
13.13. Release of
Information; Confidentiality. The parties shall cooperate with each other in
releasing information concerning this Agreement and the transactions
contemplated hereby. No press releases or other public announcements
concerning the transactions contemplated by this Agreement shall be made by
any party without prior consultation with
the other party.
13.14. Written consent of each other party,
except for any legally required communication by any party and then only with
prior consultation and at least 12 hours notice together with copies of all
drafts of the proposed
text, prior to the time the communication is made public. Neither
party shall disclose, without the prior written consent of the other party, the
economic terms of the transaction effected hereby, or the terms and provisions
of this Agreement, except as may be
required by law.
13.15. Certain
Construction Rules. The article and section
headings contained in this Agreement are for convenience of reference only and
shall in no way define, limit, extend or describe the scope or intent
of any provisions of this
Agreement. Whenever the context may require, any pronoun used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns, pronouns and verbs shall include the plural and
vice versa. In addition, as used in this Agreement,
unless otherwise provided to the contrary, (a) all references to days, months or
years shall be deemed references to calendar days, months or years and (b) any
reference to a “Section,” “Article,” or “Schedule” shall be deemed to refer to a section
or article of this Agreement or or Schedule attached to this
Agreement. The
words “hereof”, “herein”, and “hereunder” and words of similar import referring
to this Agreement refer to this Agreement as a whole and not to any particular provision of
this Agreement. Unless otherwise specifically provided
for herein, the term “or” shall not be deemed to be
exclusive.
13.16. Counterparts. This
Agreement may be executed (including by facsimile transmission) in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one instrument binding on all the parties,
notwithstanding that all the parties are not signatories to the original or the
same counterpart.
[Below
is intentionally left blank]
16
IN WITNESS WHEREOF, this
Agreement has been duly executed as of the date first above
written.
| BUYER: | |||||
| Shenzhen Xunbao E-Commerce Co., Ltd | |||||
| By: |
/s/
Long Shifan
|
|
|||
|
|
|
||||
| Name: | Long Shifan | ||||
| Title: | Chairman | ||||
| SELLER: |
|
||||
| Shenzhen Yuzhilu Aviation Service Co., Ltd. | |||||
| By: | /s/ Xxxxx Xxxxxxxxx | ||||
| Name: | Xxxxx Xxxxxxxxx | ||||
| Title: | Chairwoman & CEO | ||||
17
