Exhibit 4.31
[Translated from the Chinese original]
STOCKSTAR INFORMATION TECHNOLOGY (SHANGHAI) CO., LTD.
SHARE TRANSFER AGREEMENT
[XXXXXXXXX.XXX INC.]
AND
CHINA FINANCE ONLINE CO., LTD.
AUGUST 15, 2006
TABLE OF CONTENTS
1. DEFINITION AND INTERPRETATION 1
2. SHARE TRANSFER 2
3. PURCHASE PRICE AND XXXXXXX MONEY 3
4. DUE DILIGENCE 3
5. PREREQUISITES TO COMPLETION 4
6. COMPLETION 5
7. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS 6
8. FAILURE OF COMPLETION 7
9. EFFECTIVENESS 8
10. BREACH OF THIS SHARE TRANSFER AGREEMENT 8
11. CONFIDENTIALITY 9
12. DISPUTE RESOLUTION 10
13. NOTICE AND SERVICE 10
14. MISCELLANEOUS PROVISIONS 11
APPENDIX 1: REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR 12
(SIGNATURE PAGE) 19
The following Parties voluntarily enter into this share transfer agreement as
the date of August 15, 2006 (the "Share Transfer Agreement"):
[Xxxxxxxxx.xxx Inc.] is a legal person duly organized and validly existing under
the laws of Cayman Islands, with main office at: 0xx Xxxxx, Xxxxxxxx Xxxxxx, Xxx
000, Xxxxx Xxxxxx, Xxxxxx Islands, British West Indies (hereinafter referred to
as the "Transferor");
and
China Finance Online Co., Ltd. is a legal person duly organized and validly
existing under the laws of Hong Kong, with a legal address at: Room C, Floor 8,
East Wing, Sincere Insurance Xxxxxxxx, 0-0 Xxxxxxxx Xxxx, Xxxx Xxxx.
(hereinafter referred to as the "Transferee");
Either Party of the Transferor and the Transferee is referred to hereunder as
the "Party", or collectively referred to as the "Parties."
WHEREAS
A. Stockstar Information Technology (Shanghai) Co., Ltd. (hereinafter
referred to as the "Company") is a wholly foreign-owned enterprise
duly organized and validly existing under the laws of People's
Republic of China, with legal address at: [NO.79, Building B, Pudong
Software Park, Xx.000, Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx, China].
The Registered Capital of the Company is USD 4 million.
B. The Transferor is the shareholder of 100% shares of the Company, and
has contributed due investments in full.
C. The Transferor intends to transfer and the Transferee intends to
receive 100% of the shares of the Company.
D. Therefore, the Parties hereby agree to transfer the shares to the
Transferee in accordance with the terms and conditions specified in
this Share Transfer Agreement.
1. DEFINITION AND INTERPRETATION
1.1 Definition
The following terms shall have the meanings set forth below:
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"ARTICLES OF ASSOCIATION" means the revised articles of association of the
Company. The Articles of Association reflect the provisions of this Share
Transfer Agreement which the Transferor and the Transferee will enter into.
"COMPANY" means Stockstar Information Technology (Shanghai) Co., Ltd.
"COMPLETION DAY" means the completion day specified in Article 6.1 hereof.
"COMPLETION TERM" means the completion term specified in Article 6.1
hereof.
"XXXXXXX MONEY FOR PURCHASE" means the xxxxxxx money for purchase,
equivalent to USD 650,000, paid by the Transferee to the Transferor in
accordance with Article 3.2.
"EFFECTIVE DATE" means the date at which this Share Transfer Agreement
becomes effective in accordance with Article 9.1 hereof.
"ESCROW AGENT" means the escrow agent for the partial Purchase Price,
appointed by the Transferor and the Transferee jointly in accordance with
Article 3.3 herein.
"EXAMINATION AND APPROVAL AUTHORITY" means [Commercial Authority of
Shanghai], which is the examination and approval authority of this Share
Transfer Agreement.
"PURCHASE PRICE" means the purchase price paid by the Transferee to the
Transferor in accordance with Article 3.1 hereof.
"REGISTERED CAPITAL" means the registered capital of the Company,
equivalent to USD 4 million.
1.2 Interpretation
The headings are for the purpose of convenience and reference only, and
shall not affect the interpretation and understanding of this Share
Transfer Agreement.
2. SHARE TRANSFER
2.1 The Transferor hereby sells and transfers to the Transferee and the
Transferee hereby purchases and accepts from the Transferor 100% of the
shares of the Company.
2.2 Upon the Completion Date when the shares are transferred, the Transferee
shall become the sole shareholder of the Company, with all the rights and
obligations of a shareholder in accordance with the Articles of
Association.
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3. PURCHASE PRICE AND XXXXXXX MONEY
3.1 The Parties agree the Purchase Price is USD 6.50 million.
3.2 The Transferee shall pay the Xxxxxxx Money For Purchase of USD 650,000 to
the Transferor within three days after the execution of this Share Transfer
Agreement.
3.3 The Transferee shall pay a total amount of USD 5.85 million to the escrow
account agreed by the Parties jointly within 15 days after the execution of
this Share Transfer Agreement (but the Transferee bears no liability for
overdue payment if the escrow account fails to open for the reasons of the
Transferor). The Escrow Agent will be recommended by the Transferee, and
formally appointed upon the written approval of the Transferor. The
Transferor and the Transferee will enter into an escrow agreement with the
Escrow Agent concerning the escrow of the fund hereunder, and shall ensure
the Escrow Agent manages and releases the escrow fund in the escrow account
in accordance with this Share Transfer Agreement and the escrow agreement.
3.4 Unless the Completion of this Share Transfer Agreement fails, the Purchase
Price shall be paid by the Transferee to the bank account designated by the
Transferor in writing at the Completion Day, among which USD 650,000 may be
set off by the Xxxxxxx Money for Purchase specified in Article 3.2. The
remaining amount will be paid directly from the escrow account under
Article 3.3 to the Transferor by the Escrow Agent upon receiving the
written release Notice issued by the Transferor and the Transferee jointly
or by the Transferor or the Transferee respectively. Upon the aforesaid,
payment is released to the Transferor by the Escrow Agent in accordance
with this Article, and the Transferee's payment obligation under Article
3.1 herein will be deemed to have been carried out. The Transferor shall
issue an official receipt of such payment to the Transferee.
3.5 The Transferor, Transferee and Company shall respectively pay for their
taxes and expenses incurred from the transfer in accordance with laws and
regulations.
4. DUE DILIGENCE
4.1 For the purpose of ensuring the Transferee understands the Company's state
of affairs for the purchase of shares, the Transferee is entitled to carry
out due diligence on the Company upon the execution of this Share Transfer
Agreement. The information required to be investigated and checked
including but not limited to:
(1) the Company's subject capacity, status of operation and registration
at industrial and commerce authorities;
(2) the Company's status of assets;
(3) the Company's financial status;
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(4) employees of the Company;
(5) the Company's labor and personnel system and management;
(6) the Company's taxation and law compliance;
(7) the effective contracts concluded by the Company and performance;
(8) economic disputes, client disputes, litigation and arbitration of the
Company;
(9) securities or material obligations borne by the Company for the
outside entities; and
(10) other corporate information of the Company considered by the
Transferee as necessary to know.
4.2 The Transferor will actively assist and cooperate with the Transferee to
carry out the aforesaid due diligence, offer and disclose all detailed
information to the Transferee, and allow a specially designated person
(corporate key management staff whose title is higher than deputy general
manager) to coordinate the investigation work, ensuring the Transferee may
carry out the due diligence as soon as possible.
4.3 The fact that the Transferee is carrying out the due diligence in
accordance with this Share Transfer Agreement shall not absolve the
Transferor of all the obligations and liabilities under the representations
and warranties made by the Transferor herein.
5. PREREQUISITES TO COMPLETION
Performance of the Completion obligation hereunder by the Transferee shall
be subjected to the satisfaction of the following prerequisites prior to or on
the Completion Day:
5.1 From the execution date of the Share Transfer Agreement to the relevant
Completion Day, the representations, warranties and undertakings made by
the transferor herein are true, adequate and accurate. The Transferor makes
no misleading or false representations or facts herein. No risk exists that
may cause the Transferee or the Company to be subject to legal proceedings
or disputes due to the transfer hereunder, nor is there any material
adverse effect on the Transferee or the company.
5.2 For the purpose of such shares transfer and change of shareholders of the
Company, the Transferor shall, within [45] working days after the execution
of this Share Transfer Agreement, provide all necessary support, execute
all relevant legal documents, perform all necessary procedures, obtain all
necessary approvals, and go through all necessary procedures, in accordance
with relevant laws and Articles of Association, including but not limited
to, preparing all documents possibly needed by the approval authorities,
submitting such documents to approval authorities for examination and
approval, and making registrations of such shares transfer at industrial
and commerce administration authorities upon getting the approval from
approval authorities, unless the failure to complete the registration of
such transfer at industrial and commerce administration authorities within
the aforesaid term is caused
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by reasons of the Transferee or other objective reasons of Parties other
than the Transferor.
5.3 No event, circumstance, change or material adverse turn which has had or
could reasonably be expected to have a material adverse change on the
performance of this Share Transfer Agreement or the benefit of the
Transferee, prior to the execution of this Share Transfer Agreement.
5.4 Material, information and obligations and liabilities borne by the Company
in connection with the transfer hereunder have been disclosed adequately to
the Transferee, and the disclosure is accurate, adequate and true.
5.5 From the execution of this Share Transfer Agreement to the Completion Day,
the Transferor shall guarantee the normal operation of the Company in
aspects of products and services, and team work, and shall provide to the
Transferee the following documents (if applicable):
(A) staff list of department managers and those with titles higher
than department managers; and
(B) labor contracts signed by department managers and those with
titles higher than department managers.
5.6 The Transferor controlled companies have obtained written consent from the
Transferee prior to taking the following actions:
(A) Any fund transfer with aggregated amount exceeding RMB 50,000
with a Company or natural person and its affiliated Party;
(B) execution of any agreement;
(C) appointment and disposal of department managers and those with
titles higher than department managers;
(D) dividends distribution;
(E) change of employee reward (including bonus) plans;
(F) issues of operation cooperation; and
(G) development and launching plans of new products.
5.7 The Transferor and Shanghai Lianchuang Venture Capital Co., Ltd. shall
issue irrevocable written statement of no any creditor's liability for the
Company. ("Appendix 3(1-2)")
5.8 The Transferor has performed all other obligations in connection with the
transfer specified herein at the date of Completion Day.
6. COMPLETION
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6.1 Completion
"Completion" in this Share Transfer Agreement means the Parties complete
the transfer hereunder in accordance with this Share Transfer Agreement.
The Parties agree and affirm that the "Completion Day" is the day at which
all registration procedures of the shares transfer hereunder are completed
at the industrial and commerce administration authorities. "Completion"
shall take place at the office of the Company or other places agreed by the
Parties.
6.2 Obligations of the Transferor
The Transferor shall deliver the following documents to the Transferee at
the Completion:
(1) Board resolution of the Transferor to authorize the Transferor to
execute, deliver and perform this Share Transfer Agreement;
(2) Approval documents for the shares transfer hereunder issued by the
approval authorities and all originals of the renewed Approval
Certificate of Foreign-Invested Enterprises; such approval documents
and the renewed Approval Certificate of Foreign-Invested Enterprises
shall indicate the Transferee is the sole shareholder of the Company;
(3) All originals of Business License of Enterprise Legal Person renewed
by industrial and commerce administration based on approval documents
issued by the approval authorities;
(4) All prerequisites to Completion specified in Article 5 herein required
by the Transferee are satisfied by the Transferor.
(5) Official Seal, financial seal and all other seals of the Company.
6.3 Obligations of the Transferee
The Transferee shall deliver the following documents to the Transferor at
the Completion:
(1) Board resolution of the Transferee to authorize the Transferee to
execute, deliver and perform this Share Transfer Agreement; and
(2) the Purchase Price specified in Article 3.
7. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
7.1 The Transferor hereby makes irrevocable representations and warranties to
the Transferee as specified in Appendix 1.
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7.2 The representations made by the Transferor herein are true, accurate and
adequate and contain no concealed or misleading content. Any debt,
obligation or liability discovered after Completion, which failed to be
disclosed to the Transferee by the Transferor, or failed to get approval
from the Transferee, shall be borne by the Transferor;
7.3 If any of the representations or warranties of the article is not true ,
accurate or adequate, the Transferor shall bear compensation liability to
the Transferee for any loss, damage, expense or adverse condition (which
will not occur if the relevant representation or warranty is true or
accurate) in any kind suffered by the Transferee.
7.4 The Transferee undertakes that it will make timely and full payment to the
Transferor for the Purchase Price of the shares in accordance with payment
schedule specified in this Share Transfer Agreement.
7.5 The Transferee undertakes the execution and performance of this Share
Transfer Agreement make no violation of other contracts, agreement and
legal documents to which the Transferee is a party.
7.6 The Transferee complies with the conditions stipulated by law to be
transferred the subject of this Share Transfer Agreement prior to making
registration of the share transfer at industry and commerce administration,
and will not affect the normal legal procedures of the share transfer due
to the restrictions of the Transferee itself.
7.7 The Transferee warrants that it will actively go through all the procedures
necessary for the share transfer, and perform all required obligations as
the Transferee of the shares.
8. FAILURE OF COMPLETION
8.1 If the shares hereunder for any reason fail to complete the registration of
transfer at industrial and commerce administration in accordance with the
time specified in this Share Transfer Agreement, except as otherwise
provided by the Parties, this Share Transfer Agreement will be cancelled
accordingly.
8.2 If the shares hereunder fail to complete the transfer in accordance with
this Share Transfer Agreement for none of the reasons of the Transferor and
the Transferee (including but not limited to failure to get approval from
government in accordance with relevant laws and regulations), the
Transferor shall refund all the payment the Transferee made to the
Transferor in accordance with this Share Transfer Agreement (including the
Xxxxxxx Money for Purchase), to the Transferee within 7 days after the day
of receiving the written Notice from the Transferee. The Transferee shall
return all the documents provided by the Transferor to the Transferee in
accordance with this Share Transfer Agreement, to the Transferor within 7
days after receiving the
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written Notice from the Transferor. The Parties bear no liabilities for
breach of this Share Transfer Agreement.
8.3 If the failure to complete the share transfer in accordance with this Share
Transfer Agreement is due to the Transferor's reason, the Transferor shall
refund in double the xxxxxxx money to the Transferee in accordance with
this Share Transfer Agreement.
8.4 If the aforesaid failure of Completion is due to the Transferee's reason,
the Transferor is entitled to forfeit the xxxxxxx money paid by the
Transferee in accordance with this Share Transfer Agreement, except as
otherwise provided herein.
8.5 If the Completion is failed after the registration of the transfer at
industrial and commerce administration, both Parties are obliged to return
the shares hereunder to the former holding status before the execution of
this Share Transfer Agreement.
9. EFFECTIVENESS
9.1 The Share Transfer Agreement shall be effective from the date of getting
written approval from the Examination and Approval Authority ("Effective
Date"):
9.2 The Transferor and the Transferee shall make the best efforts to timely
obtain all essential approvals which will make this Share Transfer
Agreement effective and enforceable.
9.3 Prior to obtaining the approval from the examination and approval
authorities, the Parties hereby agree and affirm Article 10, Article 3.2
Xxxxxxx Money, Article 3.3 Escrow of Fund, Article 4 Due Diligence, Article
8 Failure of Completion, Article 11 Confidentiality and Article 12 Dispute
Resolution binding the Parties.
10. BREACH OF THIS SHARE TRANSFER AGREEMENT
10.1 Failure of performance or partial or delayed performance of any obligations
borne by any Party hereof shall constitute a breach of this Share Transfer
Agreement, and such Party shall bear the liability for breach of this Share
Transfer Agreement, and is liable for compensating all economic losses
suffered by other Parties from such breach. Unless otherwise provided in
this Share Transfer Agreement, if any Party breaches this Share Transfer
Agreement or the representations, undertakings or warranties made hereunder
by any Party are false, and such Party fails to make effective remedies
within ten (10) days (or longer time as approved by the non-breaching Party
in writing) after receiving the written Notice from the non-breaching
Party, the non-breaching Party is entitled to terminate this Share Transfer
Agreement immediately
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and unilaterally, and the breaching Party shall compensate all losses
suffered by the non-breaching Party from such breach.
10.2 If the Transferee fails to pay the xxxxxxx money to the Transferor in
accordance with Article 3 herein, fails to deposit money to the escrow
account according to this Share Transfer Agreement, or fails to pay for the
Purchase Price to the Transferor in accordance with this Share Transfer
Agreement, the Transferee shall pay to the Transferor a fine amounting to
0.1% of the overdue amount per day from the tenth day of such breach. If
such breach exceeds [20] days, the Transferor has the right to terminate
this Share Transfer Agreement, in addition the Transferee shall pay to the
Transferor a fine amounting to 5% of the total price of this Share Transfer
Agreement.
11. CONFIDENTIALITY
11.1 Whether or not this Share Transfer Agreement is terminated, the Parties
hereof shall make strict confidentiality of the trade secret and
proprietary information of the other Party (hereinafter collectively
referred to as "Confidential Information") received during the performance
of this Share Transfer Agreement. Except those having to be disclosed to a
third Party upon prior written consent from the other Party or in
accordance with relevant laws and regulations, the Party receiving the
Confidential Information shall not disclose to any other third Party the
Confidential Information or any part of it; except for the purpose of the
performance of this Share Transfer Agreement, the receiving Party shall not
use or indirectly use the Confidential Information or any part of it.
11.2 The following information is not regarded as Confidential Information: (a)
any information which the receiving Party has written evidence to prove it
has obtained such information prior to receiving it in connection with this
Share Transfer Agreement; (b) any information which has been publicized not
resulted from faults of the receiving Party, or information which are known
to the public for other reasons; or (c) information the receiving Party
legally obtained from other channels thereafter.
11.3 The information receiving Party may disclose the Confidential Information
to its relevant employees, agencies, or professionals invited, but such
Party shall ensure the aforesaid persons are also bound by this Share
Transfer Agreement, and keep the Confidential Information as confidential,
and use the Confidential Information for the sole purpose of the
performance of this Share Transfer Agreement.
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12. DISPUTE RESOLUTION
12.1 Any dispute arising from the interpretation or exercise of this Share
Transfer Agreement, shall be settled though friendly consultation by the
Parties first.
12.2 If a dispute is not settled by the aforesaid way within sixty (60) days
after the beginning of consultation, either Party may submit the dispute to
China International Economic and Trade Arbitration Committee in Beijing for
final arbitration in accordance with the arbitration procedures and rules
currently in force.
12.3 The arbitration shall be made by three (3) arbitrators. The Transferor and
the Transferee shall each appoint one (1) arbitrator. The third arbitrator
shall be designated by the arbitration committee, and serve as chairman of
the arbitration court.
12.4 The arbitration award shall be final and binding the Parties. The liability
for the payment of arbitration fee shall be judged by the arbitration
court.
13. NOTICE AND SERVICE
Any notices or other correspondences between the Parties in connection with this
Share Transfer Agreement (hereinafter referred to as "Notice") shall be in
written form (including delivered by hand, by post, by fax or by telegraph), and
delivered to the addressee at the following addresses or numbers, and the names
of the following contact persons shall be noted. Only all the aforesaid
conditions are satisfied, a Notice shall be deemed as an effective Notice.
THE TRANSFEREE: China Financial Online Co., Ltd.
Contact: Xxxx Xxxxxx
Address: Floor 9, Tower C, Corporate Square, Xx. 00 Xxxxxxxxx Xxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxx
Postal code: 100032
Tel: 000-00000000
Fax: 000-00000000
EMAIL: xxxxxx@xxx.xxx
THE TRANSFEROR: Xxxxxxxxx.xxx Inc
Contract: Xu Hanjiang
Address: Xxxxxxxx 00, Xx.000, Xxxx Xxxx, Xxxxxxxx
Postal code: 200031
Tel: 000-00000000
Fax: 000-00000000
EMAIL: xxx@xxx.xxx.xx
The Notices hereunder shall be deemed to have been effectively given upon the
following: (1) any Notices delivered by hand shall be deemed to have been
effectively served on the date of the confirmation of the addressee. Notices
without confirmation of the addressee shall not be
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deemed as effectively served; (2) any Notices delivered by post shall use
registered express or courier service, and shall be deemed to have been
effectively served to the addressee on the 48 hours after they were sent out
(deferred accordingly if there are public holidays); (3) Notices delivered by
fax shall be deemed to have been effectively given on the date of transmission
and confirmation. However, if the Notice is sent on a public holiday, the Notice
shall be deemed to have been effectively served on the first day after the
ending of the public holiday; (4) any Notices sent though telegraph shall be
deemed to have been effectively served 24 hours after they were sent out
(deferred accordingly if there are pubic holidays).
If any changes are made as to the correspondence address, number or contact
person by any Party, such Party shall notify other Parties within 7 days after
the change; otherwise Notices addressed to the former correspondence address
shall be deemed as effective Notice.
14. MISCELLANEOUS PROVISIONS
14.1 This Share Transfer Agreement and rights of the Parties hereunder shall be
interpreted and defined in accordance with China laws. If no such relevant
China laws exist, the international commercial convention shall be
applicable.
14.2 Failure to exercise, partial exercise or delayed exercise of any rights
hereunder by any Party shall not be construed as a waiver of such rights or
any other rights hereunder by such Party, except those expressly stated in
this Share Transfer Agreement or waived in written form.
14.3 This Share Transfer Agreement and its appendices constitute the entire
Share Transfer Agreement among the Parties, and shall supersede all
previous correspondence, statements, agreements or any other documents
executed by the Parties prior to this Share Transfer Agreement.
14.4 If any provisions herein become invalid as contradicted to the laws and
regulations applicable, such provisions shall be cancelled from this Share
Transfer Agreement. However, the invalidity of such provisions shall not
affect the validity of remaining provisions and entire validity of this
Share Transfer Agreement. The parities shall make consultations to set up
new provisions or deal with the consequences resulted from the invalidity
of such provisions.
14.5 The Share Transfer Agreement is executed in [eight] copies. Each Party
shall hold one copy. Others shall be used for the relevant examination,
approval and registration procedures. Each copy is equally authentic.
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APPENDIX 1: REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR
Except for those expressly disclosed in the disclosure sheet attached as
Appendix 2, the Transferor warrants and represents to the Transferee (and
the Transferor acknowledges the Transferee completes the transfer hereunder
based on such representations and warranties):
(a) Company
The Company is incorporated, organized and validly existing under the
laws of People's Republic of China, has a well-placed position and all
necessary corporate power and capacity to own its property and assets
and carry out its current business. The Company has completed all
registrations and records procedures, obtained the qualification to
carry out business in the form of Company in each jurisdiction and has
a well-placed position, which is essential to the characters of
business or the property the Company owns or leases within the
jurisdiction.
(b) Subsidiary
The Company does not possess, directly or indirectly, and has given no
consent to purchase (i) any outstanding shares or securities which can
be converted to shares of any other companies, or (ii) any shares
participated in dividends in any partnership enterprise, joint venture
enterprise or other commercial enterprise.
(c) Binding Agreement and Effectiveness of Transfer
The Transferor has provided legal documents to certify the legal
shareholder of Shanghai Meining Computer Software Co., Ltd is Beijing
Fuhua Innovation Technology Development Co., Ltd., and the Transferee
is confirmed of this after checking.
The Share Transfer Agreement constitutes legal, effective and binding
obligations of the Transferor. By executing and delivering this Share
Transfer Agreement, completing the transfer stated hereunder, and
performing the provisions, conditions, and stipulations herein, the
Transferor will not:
(i) contradict, violate or attempt to violate any obligation of the
Transferor, the Company or any subsidiary, or accelerate the
performance of such obligation stipulated or agreed in the
following:
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A. Any laws applicable to the Transferor, the Company or any
subsidiary;
B. Any judgment, order, writ, injunction or award currently
applicable to the Transferor, the Company or any subsidiary,
issued by court or government officials, administrations or
departments;
C. Articles of association or any resolution of the Transferor,
the Company and any subsidiary, and the revisions or
reiteration of such articles of association or resolution;
or
D. Provisions in any agreements, arrangements, or
understandings to which the Transferor, the Company or any
subsidiary is one Party, or binding the Transferor, the
Company or any subsidiary.
(d) License, Approval and Authorization
The Company carries out its business in accordance with all applicable
statutes, laws, order, rules and regulations stipulated by any and all
authorities who have jurisdiction over any part of the Company's
business, and possesses all license, approval and authorization
essential to the legal operation of its business. Such license,
approval and authorization are continual and effective and will be
effective, well-placed and under no violations until the Completion
Day of this Share Transfer Agreement.
(e) Capital
The Company is a legal person established in accordance with China
laws, with limited liability, and the Registered Capital is USD 4
million.
(f) Shares Purchased and Ownership of Shares of Subsidiaries
The Transferor is the sole owner of all shares of the Company. The
shares of the Company are free and clear of any liens, pledge,
encumbrance, or encumbrance of other Parties (except for the rights of
the Transferee hereunder). Except for those stipulated herein, there
are no agreements, options or rights of others, which are binding or
will bind in any time the Transferor or the Company's actions of sale,
transfer, distribution, securing, pledge, charge of the purchased
shares or in any other ways to dispose or place such purchased shares.
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(g) Financial Statement
The annual financial statements of the Company provided by the
Transferor:
(i) have been prepared based on acknowledged accounting principles
and in correspondence with the last accounting period;
(ii) have been prepared according to financial records, and no
adjusting entries, and are adequate and accurate in all material
aspects; and
(iii) have fairly reflected the assets, debts (whether are accrued,
absolute, contingent or others), financial status or operational
outcome.
(h) No Undisclosed Debt
Except for those disclosed in the balance sheet and disclosure sheet
attached in Appendix 2, to the knowledge of the Transferor, the
Company has no unpaid debt, liability or obligation (whether accrued,
absolute, contingent or others), and no unperformed undertaking or
obligation of any kind (whether such undertaking or obligation is
deemed at present as debt of the Company or any subsidiary, in
accordance with the acknowledged accounting principles), except for
those payable accounts in the normal business operation.
(i) Taxation
(i) The Company has included an adequate amount of money in the
audited balance sheet to account for any due and unpaid taxes at
the date of the balance sheet, or any due tax installment
repayment of the Company at current taxation year. Except for
those reflected in or prepared for the audited balance sheet,
the Company has no liability for any taxation. To the knowledge
of the Transferor upon proper investigation, the Company has no
pending or possible action, lawsuit, auditing, investigation,
claim, or other proceedings in connection with taxation, and to
the knowledge of the Transferor, there are no facts or
circumstances, actions, negligence, events, transactions ,or
series of transactions (including execution and/or Completion of
this Share Transfer Agreement) which will or may possibly result
in an action, lawsuit, audit, investigation, claim, or other
proceedings; nor any agreement, waiver, or other arrangement
that will lead to the delay of submitting the tax returns or
paying for any taxes by the Company.
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(ii) The Company and the subsidiaries have timely submitted all tax
returns, financial statements and other documents required by
any taxation laws. Such documents submitted contain no material
false representations, nor any omissions of representations of
material facts which shall be included. The Company has not
submitted nor is it required to submit any tax returns,
financial statements or any other documents in any jurisdiction
outside People's Republic of China;
(iii) The Company has timely withheld and remitted to the relevant
authorities (or has provided guarantees as regulated by the
relevant laws) the taxes in full which are required to be
withheld and remitted in the form required by applicable
taxation laws (including any retirement pension plan
contribution and social insurance (including but not limited to
medical insurance, unemployment insurance, on-job injury
insurance) and any other deductions);
(iv) Except for the unpaid debt or liabilities disclosed in the
financial statements of the Company, the Company has no unpaid
loans or liabilities owing to the Company's directors, former
directors, management staff, shareholders, or employees, or to
individuals or companies that have no fair transactions with the
aforesaid individuals (except for the normal travel expenses
borrowed in advance according to procedures of the Company);
(v) The Company has not transferred property to any other person or
purchased property from any other person, directly or indirectly
through unfair transactions failed to be based on the fair value
of the property at sale or purchase.
(j) No Alteration (Prior to the Execution of this Share Transfer
Agreement)
(i) There is no material adverse alteration as to any assets,
business, financial status, operational outcome or prospects of
the Company.
(ii) There is no destruction or loss damage, labour-management
dispute in any kind, or any event, development or condition of
any kind which may produce a material adverse effect (whether or
not an insurance guarantee has been obtained).
(k) Ownership of the Property
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The Company owns full and merchantable property and interests in its
property, personal property and real property, including the property
disclosed in the audited balance sheet or purchased after the date of
the audited balance sheet (except the property transferred, sold or
disposed of in any way during general and normal business operations
after such date), and such property is free and clear of any kinds of
mortgages, pledge, security interests, liens or agreement on ownership
reservation.
(l) Lease of Personal Property
Except those listed in Appendix 2, the Company has no leased or
borrowed equipment, other personal property or fixtures.
(m) Lease of Real Property
(i) Except the Lease and Sublease Agreement stated in Appendix 2
hereto, the Company is not a Party to any lease, sublease,
license or other legal documents in connection with the real
property, and is not bound by such legal documents, and the
Company has not executed any other legal documents in connection
with the real property. Any rights and interests of the Company
under the Lease and Sublease Agreement are free and clear of any
kinds of liens, pledge and encumbrances.
(ii) All the leases and subleases executed by the Company (listed in
Appendix 2) are in normal operation and fully effective. Except
otherwise specified in Appendix 2, no amendments have been made
to such leases and subleases. The Company has the right to
benefit from all leases and subleases to which the Company is
one Party.
(iii) Except otherwise specified in Appendix 2, all rents and other
current owed expenses have been paid in accordance with all
lease or sublease agreements to which the Company is a Party.
(iv) The Company has carried out all obligations under all lease or
sublease agreements to which the Company is a Party; the Company
has not breached the obligations under any lease or sublease
agreement, and has not received notice of any breach under any
lease or sublease agreement.
(n) Real Property
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Except as specified in Appendix 2, the Company does not own real
property or rights and interests of real property. The Company has
full and merchantable ownership of the permanent property rights
towards all real property, and such real property is free and clear of
any mortgage, pledge or encumbrances.
(o) Asset Status
All material tangible assets or any portion thereof used in the
operation or in connection with the operation of the Company and its
subsidiaries, is in good condition; the maintenance is normal (if
applicable), except for reasonable loss.
(p) Lawsuit
Except as disclosed in Appendix 2, there is no existence of any
pending lawsuit, action, dispute, civil or criminal lawsuit, claim,
arbitration, or legal, administrative or other proceedings, or
governmental investigation, including appeal and application filed for
the purpose of review (referred to collectively herein as "claims");
and to the knowledge of the Transferor, there is no existence of the
aforesaid claims threatened the Company or affected any of its asset,
property, or operation. To the knowledge of the Transferor, there are
no facts or circumstances that may give rise to such claims. Except as
disclosed in Appendix 2, there is no pending judgment, writ of
execution, writ, injunction, rules and orders against the Company
issued by any court, authorities, administrations or arbitration
authority.
(q) Intellectual Property
Appendix 2 lists all inventions, patents, brands, brands intended to
use, trade names, copyright, industrial designs, Company names, logos,
appearance, corporate style and other Intellectual Property (whether
registered or not), domestically or in foreign countries, of which the
Company has the ownership or license right, and all relevant
applications (referred to herein collectively as "Intellectual
Property"), including any detailed material in connection with
registration, any detailed registration material, and the earliest
used time of any unregistered Intellectual Property. The Company owns
all of its Intellectual Property. The Intellectual Property is free of
any claims or encumbrances. The use and execution (or failure of use
and execution) of the Intellectual Property by the Company in any way
does not restrict its effectiveness or validity. Except as disclosed
in Appendix 2, the Company has
17
not made any infringement or violation on any Intellectual Property of
any person.
(r) Laws Compliance
The Company has obtained all necessary licenses, permits,
certificates, authorizations or approvals which entitle the Company to
use the Company name and to engage and carry out its operation and
management though the assets and property owned, leased, operated and
used by the Company.
(s) Agreement on Operation Restriction
The Company is not a Party to any agreement or arrangement which
restricts the Company from conducting certain business.
(t) No Security
Except those specified herein or in any appendix hereto, the Company
has not provided or agreed to provide any securities to any debts,
compensation, bonds, warranty liability, or any other liabilities, nor
is the Company a Party to such security or bound by such security.
(u) Record of the Company
The Company shall provide without reservation the accurate and
complete record of meetings and resolutions convened by its directors
or shareholders since the establishment of the Company.
(v) Approval
Except that the shares transfer of the Company has to be approved by
the examination and approval authorities, as the Company is a foreign
invested enterprise in China, prior to the Completion of the transfer
hereunder, there is no necessity for the Company or the Transferor to
make to any authorities or obtain from such authorities, any approval,
consent, authorization, or statement, record (except the
administrative records made at taxation authority, Company
registration, or other administrations of same kind) or registration,
or make the obtaining of the aforesaid as a condition to complete the
transfer hereunder.
(w) Full Disclosure
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The above acknowledgement and facts representations contain no false
representation of any material facts, and no omission of any material
facts. There is no existence of any fact of the Transferor failed to
be disclosed to the Transferee, which is foreseeable by the Transferor
to make material adverse effect on the capacity of the Transferor to
perform the obligations hereunder.
(SIGNATURE PAGE)
Therefore, the Parties hereby sign this Share Transfer Agreement at the date
first above written:
THE TRANSFEREE:
/S/COMPANY SEAL
/S/XXXXXX XXXX
THE TRANSFEROR:
/S/COMPANY SEAL
/S/HANJIANG XU
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