SHARE PURCHASE AGREEMENT ON KONGJIAN ZHIHUI DECORATION (BEIJING) CO., LTD.
Exhibit 4.36
ON
KONGJIAN ZHIHUI DECORATION (BEIJING) CO., LTD.
October 10, 2023
Contents
Article 1 |
| 2 | |
Article 2 | | 6 | |
Article 3 | | 7 | |
Article 4 | | 8 | |
Article 5 | | 10 | |
Article 6 | | 10 | |
Article 7 | | 10 | |
Article 8 | | 11 | |
Article 9 | | 13 | |
Article 10 | | 14 | |
Article 11 | | 17 | |
Article 12 | | 17 |
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This Share Purchase Agreement (this “Agreement”) is made and entered into on October 10, 2023 (the “Signing Date”) in Beijing, the PRC (as defined below) by and among:
A. | Kongjian Zhihui Decoration (Beijing) Co., Ltd., a limited liability company incorporated and existing under the PRC Laws, with its Unified Social Credit Code being 91110102562106843T and having its registered address at #901-96 (Cluster Registration), 9/F, Building Xx. 00, Xxxxxxxxx Xx. 00, Xxxxxxx Xxxxxx, Xxxxxxxxxxx Xxxxxxxx, Xxxxxxx (“Target Company”); |
B. | Beijing Dongfeng Yilin Investment Consulting Partnership (Limited Partnership), a limited partnership established and existing under the PRC Laws, with its Unified Social Credit Code being 911101080648534408 and having its registered address at Office 000-000, 0/X, Xxxxxxxx 0, Xx.0 Xxxxxx Xxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx (“Transferor”); and |
C. | XXXX Xxx, a PRC citizen with ID Card number being **** (“Founder”); |
X. | Xxxxx Meijia Technology (Zhejiang) Co., Ltd., a limited liability company incorporated and existing under the PRC Laws, with its Unified Social Credit Code being 91330100MAC41WCQ4C and having its registered address at Room 0000, 00/X, Xxxxxxxx Building, 000 Xxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxxxxx Xxxxxxxx (“Purchaser”), |
which shall be hereinafter referred to collectively as the “Parties” and individually as a “Party”.
WHEREAS,
1. | The Group Companies (as defined below) mainly engage in the business of home renovation and furnishing; as of the Signing Date of this Agreement, the registered capital of the Target Company is RMB6,946,314, of which, the paid-in capital is RMB6,630,257, and the shareholding structure of the Target Company is set forth in Schedule C. The Founder is the actual controller of the Target Company and managing partner of the Transferor; |
2. | The Purchaser proposes to acquire 100% equity in the Target Company held by the existing shareholders of the Target Company (the “Acquisition Transaction”), and the Transaction (as defined below) is part of the Acquisition Transaction. The Transferor proposes to sell to the Purchaser and the Purchaser is willing to accept the transfer of 1.5944% equity in the Target Company (corresponding to registered capital of RMB110,750) directly held by the Transferor free from any encumbrance in accordance with the terms and conditions of this Agreement. |
3. | Concurrently with the execution of this Agreement, shareholders of the Target Company other than the Transferor will enter into the transaction documents relating to transactions where such shareholders transfer all their equity in the Target Company to the Purchaser (the “Remaining Share Transaction”) (including but not limited to a share transfer agreement and other documents required in such agreement; collectively, the “Remaining Share Transaction Documents”) with the Purchaser and relevant parties, which shall specify that the Purchaser will purchase all the equity in the Target Company held by relevant shareholders. |
THEREFORE, it is agreed that:
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Article 1Definitions and Interpretation
1.1 | Definitions of Certain Terms |
Unless the context otherwise requires, the following terms, when used herein, shall have the meanings ascribed to them below:
“Laws” refer to the national, federal, supranational, international, state, provincial, local or similar statutes, laws, decrees, ordinances, rules, codes, guidelines, orders, directives, guidance, judicial interpretations, administrative regulations, normative documents and the rules governing the issuance and trading of securities on the relevant stock exchanges in or outside the PRC.
“Liabilities” refer to all debts, liabilities and obligations, accrued or fixed, absolute or contingent, due or undue, determined or otherwise, including without limitation, those arising under any Law, Action or Government Order and any contract, agreement, covenant or undertaking.
“Affiliate” refers to, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person; and for the avoidance of doubt, with respect to any individual, the term “Affiliate” also includes (i) his spouse, parents, children and their spouses, sibling and their spouses, (ii) his spouse’s parents, sibling and their spouses, (iii) trustee of any trust of which such individual or his immediate family member is a beneficiary or, where the trust is a discretionary trust, a discretionary object, and (iv) any entity or company controlled by the foregoing.
“Management Holding Platforms” refer to Beijing Dongfeng Yilin Investment Consulting Partnership (Limited Partnership) and Beijing Dongfeng Yiyuan Investment Management Center (Limited Partnership), and a “Management Holding Platform” refers to either of the Management Holding Platforms.
“business day” refers to any day other than Saturday, Sunday and other days on which banks in the PRC are required or authorized by Laws to close.
“contract” refers to any oral or written contract, agreement, order, purchase order, or other similar document, arrangement or plan.
“Group Companies” refer to the Target Company and any Person under its direct or indirect control, including without limitation, the Persons listed in Schedule A.
“Transaction Documents” refer to this Agreement and other documents contemplated hereunder or in connection with the transactions contemplated hereunder.
“Domestic ESOP Platforms” refer to Beijing Xxxx Xxxxxxxxx Enterprise Management Center (Limited Partnership) and Beijing Chengke Zhongying Enterprise Management Center (Limited Partnership), and a “Domestic ESOP Platform” refers to either of the Domestic ESOP Platforms.
“control” refers to, with respect to the relationship between two or more Persons, the power, whether exercised or not, to direct or cause the direction of the business, affairs, management or decision of a Person directly, indirectly or as trustee or executor, whether through ownership of equity, voting rights or voting securities, or as trustee or executor, or by contract, contractual arrangement, trust arrangement or otherwise, including but not limited to (i) direct or indirect ownership of fifty percent (50%) or more issued equity or shares in such Person, (ii) direct or indirect ownership of fifty percent (50%) or more voting rights in such Person, (iii) direct or
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indirect right to appoint a majority of members of the board of directors or similar management organ of such Person. The terms “controlled” and “under common control with” shall have meanings correlative to the foregoing.
“Encumbrance” refers to any mortgage, pledge, lien (including but not limited to the priority of tax claims, right of revocation and subrogation right), lease, license, option, constraint, right of first refusal, preemptive right, debt burden, preferential arrangement, third-party claim or interest, restrictive undertaking, condition or restriction of any kind (including but not limited to any restriction on the use, voting, transfer, yields or on any other right or interest to exercise the ownership), or any form of security interest, or any form of arrangement with a similar effect and subject to third-party rights.
“Closing” refers to the Purchaser’s completion of the payment of the Transfer Consideration (as defined below) to the Transferor in accordance with this Agreement.
“Closing Date” shall be the date on which the Closing takes place.
“RMB” refers to Renminbi, the legal tender of the PRC.
“Commerce Department” refers to the Ministry of Commerce of the People’s Republic of China and its local counterparts.
“Trade Secret” refers to any technical information and business information which is owned by a Person, not known to the public, and capable of bringing economic benefits to such Person, including but not limited to: any confidential information relating to R&D, proprietary information, data (including but not limited to commercial, business, technical and financial data) and database, technology, technical solution, design, specification, lists and resources of customers, suppliers and partners, financial information, pricing and cost information, business and marketing plans and proposals, business activities (including financial information, business policies, etc.), released or unreleased software or hardware products, or marketing or promotional materials (including any extract, summary or other derivative form of such information), regardless of the form in which such information is stored or disseminated.
“Administration for Market Regulation” or “AMR” refers to the State Administration for Market Regulation of the PRC and its local counterparts.
“Tax” refers to any and all taxes, levies, duties and other charges of any kind collected by any Governmental Authority (together with any and all interests, fines, surcharges and additional amounts collected in connection therewith), including but not limited to: taxes levied against income, concession, accidental income or other profit, general receipts, property, sales, use, salary, employment, social security, unemployment compensation or net value; taxes in the nature of excise and use tax, withholding tax, transfer tax, value-added tax or profit tax; and customs duty, taxes and similar charges.
“Action” refers to any lawsuit, complaint, petition, appeal, request for arbitration, demand, claim, notice of violation, investigation, settlement ruling or agreement, or any claim, lawsuit, complaint, arbitration, inquiry, proceeding or investigation initiated by or before any Governmental Authority.
“Indebtedness” refers to, with respect to any Person, all obligations of such Person to make payments, including but not limited to: (i) repayment of money borrowed or raised, (ii) acceptance credit, documentary letter of credit or commercial paper loan, (iii) any bond, note, loan, bill or similar instrument; (iv) any deferred payment for assets or services purchased, payment due for the performance of contractual obligations, or liquidated damages, (v) rental payment under any lease (be it a lease on land, machinery, equipment or other items) entered into primarily for the purpose of raising funds or financing the purchase of a leased asset, (vi) any guarantee, bond, standby letter of credit or other document issued for the performance of a contract, and (vii) any mortgage, security or other guarantee for financial losses in connection with the obligations of any Person.
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“Governmental Authority” refers to any national or international organization, or supernational, federal, state, provincial, local or other government, governmental, regulatory or administrative department, authority or commission, or any court, tribunal or judicial or arbitral institution in or outside the PRC.
“Government Authorization” refers to any and all approvals, permits, certificates, registrations, filings and qualifications required from the Governmental Authority for the conduct of business by any of the Group Companies.
“Government Order” refers to any order, writ, judgment, injunction, verdict, regulation, decision or ruling made by any Governmental Authority, alone or together with any other Governmental Authority.
“Material Adverse Effect” refers to (i) the entry into insolvency, liquidation, winding up or debt restructuring by any of the Group Companies and/or its existing shareholders, or the sale of material assets by the Group Companies, (ii) the loss of any material permits, qualifications or licenses required for any of the Group Companies to carry on its business activities, or (iii) any other circumstance, change or impact involving any of the Group Companies and/or its existing shareholders, which, alone or in aggregate, directly or indirectly: (A) causes or may reasonably expect to cause any material adverse effect on the existence, shareholding structure, business, assets, intellectual property rights, Liabilities (including but not limited to contingent liabilities), financial condition, operating results, business prospects or financial position of any of the Group Companies, or (B) has or may reasonably expect to have any material adverse effect on the qualifications, licenses or capabilities of any of the Group Companies to carry on its current business, or (C) causes or may reasonably expect to cause any material adverse effect on the validity, binding effect and performance of the Transaction Documents.
“PRC” refers to the People’s Republic of China” and shall, for the purpose of this Agreement, exclude Hong Kong Special Administrative Region, Macau Special Administrative Region and Taiwan.
“Person” refers to any individual, partnership, firm, limited liability company, corporation, association, trust, cooperative organization, Governmental Authority, non-corporate organization, other juridical person, juridical association, unincorporated organization or other legal entity.
“Organizational Documents” refers to the articles of association, bylaws, partnership agreement, limited liability company agreement, trust agreement or other incorporation documents of any Person.
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1.2 | Interpretation and Rules of Construction |
In this Agreement, unless the context otherwise requires:
1.2.1 | Any reference to article, schedule, appendix, recital, preamble or text herein shall mean the article, schedule, appendix, recital, preamble or text of this Agreement, and such article, schedule, appendix, recital, preamble or text shall be deemed an integral part of this Agreement; |
1.2.2 | The headings and titles herein are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement in any way; |
1.2.3 | When used herein, the word “including” shall be deemed to be followed by “but not limited to”; |
1.2.4 | Laws defined or mentioned in this Agreement or any agreement or document mentioned herein refer to such Laws as may be amended, revised or supplemented from time to time, including subsequent Laws replacing the original ones; |
1.2.5 | Any reference to any agreement, instrument or other document herein shall mean such agreement, instrument or other document as may be amended, revised or supplemented from time to time; |
1.2.6 | Any reference to any Person shall also include its permitted assigns and successors; any reference to a company shall include any of its branches; and |
1.2.7 | When used herein, “hereof”, “herein”, “hereunder” and other words of similar meaning shall refer to the whole Agreement, instead of any provision of this Agreement. |
Article 2Transaction Arrangement
2.1 | Share Transfer |
2.1.1 | Subject to this Agreement, the Transferor agrees to transfer and sell 1.5944% equity in the Target Company (corresponding to registered capital of RMB110,750) (“Shares”) held by it to the Purchaser at the Transfer Consideration agreed in Article 3.1 (the “Transaction”). |
2.1.2 | The Transferor acknowledges and agrees that the Shares transferred to the Purchaser shall be free from any Encumbrance, that the Purchaser shall obtain all rights, titles and interests in and to the Shares upon Closing, and that the ownership of the Shares and any rights and interests in connection with or arising from such ownership shall be transferred to the Purchaser from the Transferor upon Closing, and vested in the Purchaser thereafter. The Transferor hereby agrees to waive any of its liquidation preference or similar arrangement under the shareholder agreement or similar agreement of the Target Company. |
2.1.3 | The Parties acknowledge and agree that the Transaction is part of the Acquisition Transaction, and therefore (1) the Purchaser intends to purchase all the Shares in whole, and unless the Purchaser otherwise agrees in writing, the Transferor may not transfer the Shares in part. And if the Transferor fails to complete the transfer of the Shares in whole, the Purchaser shall have the right to terminate the Transaction and/or this Agreement; and (2) where other shareholders of the Target Company fail |
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to complete the Remaining Share Transaction, or any share transfer transaction under the Remaining Share Transaction is terminated, the Purchaser shall have the right to terminate the Transaction and/or this Agreement. For the avoidance of doubt, the foregoing shall not prejudice other rights of the Purchaser hereunder.
2.2 | Anti-monopoly Notification |
Upon execution of this Agreement and the Remaining Share Transaction Documents, the Purchaser will file a notification of concentration of undertakings with the competent Governmental Authority with respect to the Acquisition Transaction (the “Anti-monopoly Notification”), the Transferor shall provide necessary support for the Anti-monopoly Notification, including but not limited to provision of information and materials relating to the Transferor required by the competent Governmental Authority and signing necessary documents, within the reasonable time limit required by the Purchaser, after the execution of this Agreement.
Article 3Payment of Transfer Consideration
3.1 | Transfer Consideration |
3.1.1 | It is agreed that, subject to the terms and conditions agreed herein, the transfer price for the Shares will be RMB31,887,415 (“Transfer Consideration”). The Purchaser shall pay the Transfer Consideration to the Transferor in accordance with Article 3.2 hereof. |
3.1.2 | For the avoidance of doubt, the Transfer Consideration shall be a Tax-inclusive price (inclusive of the income Tax, stamp duty, etc. payable by the Transferor for the Transaction), that is, except the stamp duty payable by the Purchaser for the Transaction, the Purchaser will not bear any additional Taxes for the Transaction. |
3.1.3 | The Parties acknowledge that, where the Target Company converts capital reserves of the Target Company to increase its registered capital before the Closing, the Purchaser will still acquire the equity of the same proportion in the Target Company after the Closing, with the capital contribution amount corresponding thereto increasing to the same extent, provided that the amount of the Transfer Consideration due to the Transferor shall remain the same. |
3.2 | Payment of Transfer Consideration |
3.2.1 | The Purchaser shall pay the Transfer Consideration to the bank account designated in the payment notice issued by the Transferor under Article 4.1.14, on the Closing Date. |
3.2.2 | The Transferor shall make written confirmation to the Purchaser on the date when it receives the Transfer Consideration from the Purchaser. |
3.3 | Declaration and Payment of Taxes |
The Transferor shall and the Founder shall procure the Transferor to solely declare and pay any Taxes payable by it in connection with the Transaction under the applicable Laws, and any Taxes to be declared and withheld and paid by the Transferor (if involved). The Transferor shall truly, accurately and completely submit and fill in materials and information for Tax return in
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connection with the Transaction (including but not limited to the investment cost) in accordance with the provisions of applicable Laws and requirements of competent PRC Tax authority.
Article 4Conditions Precedent to Payment
4.1 | Conditions Precedent to Payment |
The Purchaser’s obligation to pay the Transfer Consideration shall be subject to the satisfaction of the following conditions to the satisfaction of the Purchaser (any or all of which may be waived in writing by the Purchaser at its own discretion):
4.1.1 | Anti-monopoly Notification. The competent anti-monopoly Governmental Authority has approved the Anti-monopoly Notification for the Acquisition Transaction unconditionally or conditionally. |
4.1.2 | Execution of Transaction Documents. The Transaction Documents and the Remaining Share Transaction Documents have been duly executed and delivered to the Purchaser, which remain valid at the Closing Date. |
4.1.3 | Representations, Warranties and Undertakings. The representations and warranties of the Transferor and the Founder herein (including but not limited to those in Article 6 and Schedule D-1) shall be authentic and accurate when made and as of the Closing Date (with the same force and effect as if made on that date). The undertakings and covenants to be performed by the Transferor, the Founder and their nominee (if any) on or before the Closing Date as provided hereunder shall have all been performed. |
4.1.4 | No Suit or Action. There is no existing or threatened Action brought by any Governmental Authority or any other Person against any party to the Transaction Documents and the Remaining Share Transaction Documents, which may restrict, impede or prohibit the transactions under the Transaction Documents and the Remaining Share Transaction Documents or cause Material Adverse Effect on the conditions for the transactions under the Transaction Documents. |
4.1.5 | No Specific Government Order. No Governmental Authority has enacted, promulgated, administered or adopted any Laws or Government Order which will render the transactions contemplated under the Transaction Documents and the Remaining Share Transaction Documents illegal or otherwise restrict or prohibit such transactions. |
4.1.6 | No Material Adverse Effect. There is no change or event which has Material Adverse Effect on the Group Companies or their business, finance, assets, Liabilities, prospects or operation status, or other event or fact that will cause or can be reasonably expected to cause any Material Adverse Effect. |
4.1.7 | External Approval, Waiver and Notice. All consents, approvals, waivers and notices (if any) required for the Parties’ execution and delivery of the Transaction Documents and the Remaining Share Transaction Documents and completion of the transactions under the Transaction Documents and the Remaining Share Transaction Documents have been obtained or completed, and remain in full force and effect. |
4.1.8 | Internal Approval. The shareholders’ meeting and the board of directors of the Target |
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Company have adopted written resolution/decision to: (i) approve the execution and performance of the Transaction Documents and the Remaining Share Transaction Documents, and all shareholders have waived their right of first refusal, liquidation preference, co-sale right, veto right and any other rights which may affect the Acquisition Transaction, (ii) adopt a new articles of association of the Target Company to the satisfaction of the Purchaser, and (iii) remove the current legal representative, other directors, supervisors, managers, enterprise contact persons and chief financial officer of the Target Company except that the Founder XXXX Xxx will continue serving as a director of the Target Company and elect new legal representative, other directors, supervisors, managers, enterprise contact persons and chief financial officer of the Target Company appointed by the Purchaser, and (iv) approve cancellation of options and termination of all employee incentive plans.
4.1.9 | Internal Approval of Transferor. The Transferor has duly adopted and submitted to the Purchaser written resolutions of the internal decision-making organ approving the execution and performance of the Transaction Documents. |
4.1.10 | Preceding Equity Transfer. With respect to the transactions of transfer of 84.5069% equity in the Target Company to the Purchaser by the existing shareholders of the Target Company other than the Management Holding Platforms and the Domestic ESOP Platforms, the Purchaser has completed the acquisition in accordance with relevant Remaining Share Transaction Documents, including but not limited to: (i) the Target Company has completed the corresponding change registration and filing with the Administration for Market Regulation, the Commerce Department and foreign exchange administration or its authorized banks with respect to such transactions of transfer of equity; and (ii) the Target Company and the Founder have delivered all materials and corresponding documents of the Target Company to the Purchaser or the nominee designated by the Purchaser in accordance with the relevant Remaining Share Transaction Documents and to the satisfaction of the Purchaser. |
4.1.11 | Restructuring of Platforms. The Management Holding Platforms and the Domestic ESOP Platforms have completed the restructuring according to the restructuring scheme set forth in Schedule F, to the satisfaction of the Purchaser. |
4.1.12 | Completion of Change Registration and Filing with Governmental Authority. The Target Company has completed the change registration and filing with the Administration for Market Regulation with respect to the transfer of equity in the Target Company under the Transaction and the Remaining Transaction Documents executed by the Purchaser and the Management Holding Platforms and the Domestic ESOP Platforms other than the Transferor with respect to the transfer of equity in the Target Company, including: (i) registering the Purchaser as shareholder and owner of relevant equity in the Target Company who holds 100% equity in the Target Company, (ii) the new articles of association of the Target Company has been filed with the Administration for Market Regulation and the Target Company has obtained the updated business license. |
4.1.13 | Remaining Share Transaction. The payment conditions agreed under the Remaining Share Transaction Documents have all been satisfied or waived in writing by the Purchaser. |
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4.1.14 | Payment Notice. The Transferor has given a payment notice to the Purchaser stating the information of the beneficiary account and the amount of the Transfer Consideration. |
4.1.15 | Closing Certificate. The Founder and the Transferor have submitted a certificate on the satisfaction of the Closing conditions in form and substance set forth in Schedule G to the Purchaser certifying that all conditions precedent to payment in this Article 4.1 have been satisfied. |
The Transferor shall make its best reasonable efforts to procure the satisfaction of such conditions precedent to the Transfer Consideration as soon as possible after the execution of this Agreement. Of which: after the satisfaction of all conditions precedent to the Transfer Consideration other than those set forth in Article 4.1.12 (except for those waived under Article 4.1 or to be satisfied at the Closing by their nature), the Transferor, the Founder and the Target Company shall complete the conditions precedent to payment set forth in Article 4.1.12 as soon as possible.
Article 5Closing
5.1 | Closing |
Subject to all terms and conditions hereof, the Closing of the Transaction shall occur concurrently with the closing of the transaction between the Purchaser and Beijing Xxxx Xxxxxxxxx Enterprise Management Center (Limited Partnership), Beijing Chengke Zhongying Enterprise Management Center (Limited Partnership), and Beijing Dongfeng Yiyuan Investment Management Center (Limited Partnership) concerning transfer of equity in the Target Company held by them, within twenty (20) business days from the date when all conditions precedent set forth in Article 4.1 are satisfied or waived in writing by the Purchaser (other than those to be satisfied on the Closing Date in accordance with this Agreement, which shall be satisfied on such date) (and for the avoidance of doubt, any extension of the said period due to regulatory requirements of the bank or the Governmental Authority shall not be deemed as a breach by the Purchaser, in which case the Parties shall negotiate a solution amicably).
The Parties confirm that from the Closing Date, the Purchaser will have the legal, valid, absolute and exclusive ownership of all the Shares in the Target Company held by it, free from any Encumbrance.
Article 6Representations and Warranties of the Transferor and the Founder
6.1 | In order to procure and as condition to the Purchaser’s execution of this Agreement, the Transferor and the Founder hereby severally and jointly make all representations and warranties set forth in Schedule D-1 to the Purchaser and ensure that such representations and warranties are authentic, complete and accurate, and not misleading in any respect, from the Signing Date of this Agreement to the Closing Date. |
6.2 | Any representations and warranties made and submitted by the Transferor under and in accordance with this Agreement shall survive the Closing. |
Article 7Representations and Warranties of the Purchaser
In order to procure and as condition to the other Parties’ execution of this Agreement, the Purchaser
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hereby makes all representations and warranties set forth in Schedule D-2 to the other Parties and ensure that such representations and warranties are authentic, complete and accurate, and not misleading in any respect, on the Signing Date of this Agreement and the Closing Date.
Article 8Special Provisions
8.1 | Non-solicitation or No Negotiation |
From the Signing Date to the Closing:
8.1.1 | Without prior written consent of the Purchaser, the Transferor and/or the Founder shall not, and shall procure any of its Affiliates, officers, directors, representatives or agents not to: |
(a) | solicit, initiate, consider, encourage or accept any proposal or offer made by any Person on: (A) any investment in any of the Group Companies (whether by equity or debt); (B) purchase or otherwise acquisition of equity, assets or business of any of the Group Companies in whole or in part; (C) merger, consolidation or other form of business amalgamation with or into any of the Group Companies or its business; or (D) recapitalization, asset reorganization, restructuring, or other transactions not in the normal course of business, which involves or otherwise relates to any of the Group Companies; or |
(b) | enter into any agreement, memorandum, letter of intent or similar legal instruments, participate in any discussion, talk, negotiation or other form of communication, or provide other Persons with information, or in any way cooperate, assist or participate in, facilitate or encourage any other Person to make any effort or attempt, in each case, with respect to any of the matters stated above. |
8.1.2 | Unless otherwise agreed by the Purchaser in writing, the Founder, the Transferor and/or any of their Affiliates, officers, directors, representatives or agents shall immediately cease or procuring the termination of all existing discussions, talks, negotiations and other forms of communication with any other Persons to date with respect to transactions identical, close or similar to those contemplated hereunder. If any Person makes any proposal or offer for transactions identical, close or similar to those contemplated hereunder, or any attempt or other contact for the foregoing, the Founder or the Transferor shall immediately notify the Purchaser, with reasonable details on the identity of the Person making such proposal, offer, attempt or contact, and the terms and conditions thereof. |
8.2 | Use of Name |
Regardless of whether the Purchaser or the Transferor/the Founder then holds any equity in the Group Companies directly or indirectly, without prior written consent of either the Purchaser or the Transferor, the other Party shall not, and shall procure its Affiliates not to: (i) use, publish or reproduce the name of the other Party or any of its Affiliates, or any similar company name, trade name, trademark, product or service name, domain name, pattern, mark, logo, label or particular description that enables third parties to identify the other Party or any of its Affiliates, for any of its marketing, advertising, promotional or other purposes; or (ii) make any direct or indirect declaration that any products or services offered by the Group
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Companies or any of its controlled Affiliates have been endorsed or supported by the other Party or any of its Affiliates, except for compliance with requirements of the securities laws and regulations of the PRC and relevant governments and the stock exchanges as well as the financial regulators in Hong Kong or the United States.
8.3 | Confidentiality |
8.3.1 | Confidential Information |
(a) | The Parties shall keep confidential the fact that the Parties enter into the Transaction Documents, the terms of Transaction Documents, and Trade Secret or proprietary information relating to the equity and business of the Group Companies (“Confidential Information”), and shall not disclose such information to any third party. The Transferor and the Founder understand that the Confidential Information is extremely important to the Purchaser after the completion of the Closing, and any disclosure of such Confidential Information may directly or indirectly benefit the Competitors of the Purchaser, and prejudice the interest of the Purchaser. Therefore, the Transferor and the Founder agree that after the execution of this Agreement, except for the purpose of facilitating the performance of its obligations hereunder, they shall, and shall procure their Affiliates and their respective directors, officers, employees, accountants, consultants, representatives and agents to keep confidential all the Confidential Information. |
(b) | The Purchaser agrees that after the execution of this Agreement, except for the purpose of facilitating the performance of its obligations hereunder, it shall, and shall procure its Affiliates and their respective directors, officers, employees, accountants, consultants, representatives and agents to keep confidential all the Confidential Information. |
(c) | Such restriction shall not apply to any information which: (i) is already known to the public at the time of disclosure, and enters the public domain other than as a result of breach of this Agreement by the information receiving Party; (ii) is disclosed with prior written consent of the other Party; (iii) is disclosed by a Party to its Affiliates, directors, officers, employees, accountants, consultants, representatives and agents who have agreed to perform the duty of confidentiality, for the purpose of performing the transactions contemplated under the Transaction Documents; (iv) is legally obtained by the receiving Party from any third party subsequently; or (v) is disclosed by a Party according to the requirements of any Governmental Authority or regulator having jurisdiction over it (including but not limited to the stock exchanges as well as the financial regulators in Hong Kong or the United States). For the avoidance of doubt, the Purchaser may make appropriate disclosure by filing a Form 6-K with the U.S. Securities and Exchange Commission, publishing an announcement on the website of The Stock Exchange of Hong Kong Limited, and in its annual report, interim report, results announcement or similar documents, and attach this Agreement as an appendix to its annual report. |
8.3.2 | Press Release |
Without prior written consent of the Purchaser, the Transferor or the Founder may
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not publish any press release, announcement or otherwise make public disclosure of, the Transaction.
8.4 | Waiver and Exemption |
Each of the Transferor and the Founder hereby acknowledges and agrees that it (acting on its own behalf and on behalf of its Affiliates) will waive any claims and Actions against all Group Companies that have accrued as of the Closing or based on the facts prior to the Closing, if the Closing takes place.
8.5 | Other Post-Closing Undertakings |
The Transferor and the Founder undertake that they shall complete the matters set forth in Schedule H after the completion of the Closing.
Article 9Breach of Contract and Indemnification
9.1 | Liabilities for Breach of Contract |
9.1.1 | Subject to Article 9.1.5 hereof, the Transferor and the Founder shall severally and jointly indemnify, defend and hold the Purchaser (acting on its own behalf or on behalf of every other Purchaser’s Indemnitee, so that the Purchaser and every other Purchaser’s Indemnitee will be indemnified, regardless of whether they are a Party hereto or not) harmless from and against any damages, losses, claims, suits, demands for payment, judgments, settlements, Taxes, interest, costs and expenses (including but not limited to the fees and reimbursements paid to attorneys and consultants, or compensation and indemnity paid by it to any third party (including its Affiliates, directors and employees), including the part of losses incurred by the Group Companies that is borne directly or indirectly by the Purchaser) (“Losses”) suffered, sustained or incurred by the Purchaser and/or (if the Closing takes place) the Group Companies (be it a third party claim, claim between the Parties hereto or any other claim) against the foregoing or its or their Affiliates, directors, partners, shareholders, employees, agents and representatives (“Purchaser’s Indemnitees”) directly or indirectly arising out of or in connection with: |
(a) | Breach of any of its/their representations, statements or warranties under the Transaction Documents by the Transferor and/or the Founder; and |
(b) | Breach of any of its/their undertakings or obligations under the Transaction Documents by the Transferor and/or the Founder. |
In particular, if the Acquisition Transaction is terminated due to the Transferor’s breach of any of its representations, statements or warranties, or undertakings or obligations under the Transaction Documents, the Transferor shall bear all Taxes, costs and expenses arising from the Acquisition Transaction.
9.1.2 | Subject to Article 5.1 hereof, where the Purchaser fails to pay the Transfer Consideration to the Transferor when due, then for each day in delay, the Purchaser shall pay the Transferor liquidated damages at 0.05% of the amount of the unpaid Transfer Consideration, and if such payment is overdue for more than sixty (60) business days, then in the absence of breach of contract by the Transferor, the |
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Transferor shall have the right to unilaterally terminate this Agreement.
9.1.3 | It is agreed that if the Purchaser’s Indemnitees have incurred Losses set forth in Article 9.1.1, then unless otherwise agreed herein, the Purchaser and/or its Affiliates shall have the right to directly deduct the amount of compensation and indemnity payable by the Transferor to the Purchaser’s Indemnitees from the corresponding payment or other amounts payable to the Transferor by the Purchaser and/or its Affiliates. |
9.1.4 | The Transferor and the Founder shall not claim on any ground and in any way any right or recovery against the Group Companies with respect to any compensation or indemnity made by them to the Purchaser’s Indemnitees under the Transaction Documents, and shall unconditionally and irrevocably waive any of their recourses or claims against the Group Companies. |
9.1.5 | The compensation liability of the Founder under the Transaction Documents shall be limited as below: |
(a) | In respect of the same matter, if the Purchaser’s Indemnitees have been fully indemnified under the Remaining Share Transaction Documents, they shall not make any repeated claim for compensation against the Founder or the Transferor under this Agreement; |
(b) | the aggregate amount of all compensation liabilities of XXXX Xxx under the Transaction Documents and the Remaining Share Transaction Documents shall be capped at RMB23,685,864.2463. Notwithstanding the foregoing, it is agreed that the limitation of compensation set forth in this 9.1.5 (b) shall not apply: (i) in case of any fraud, gross negligence or willful misconduct of XXXX Xxx, (ii) to the compensation liability under Article 9.1.2 (b), Article 9.1.2 (c) or Article 9.1.3 of the Share Purchase Agreement dated October 10, 2023 by and among XXXX Xxx, the Purchaser, Beijing Dongfeng Yiyuan Investment Management Center (Limited Partnership) and others with respect to the sale of equity in the Target Company from Beijing Dongfeng Yiyuan Investment Management Center (Limited Partnership) to the Purchaser; and (iii) to the compensation liability under Article 9.1.2 (b), Article 9.1.2 (c) or Article 9.1.3 of the Share Purchase Agreement dated October 10, 2023 by and among XXXX Xxx, the Purchaser, XXX Xxxxx and others with respect to the sale of equity in the Target Company from XXXX Xxx and Xxx Xxxxx to the Purchaser. |
9.1.6 | For the avoidance of doubt, all remedies provided hereunder are not mutually exclusive and, therefore, can be applied concurrently. The exercise of remedies provided hereunder shall not preclude any other rights or remedies available to the Parties under the Laws or other documents. |
Article 10Termination
10.1 | Under any of the following circumstances, this Agreement may be terminated prior to the Closing: |
10.1.1 | The Parties unanimously agree in writing to terminate this Agreement; |
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10.1.2 | Either Party hereto may terminate this Agreement by giving a written notice to the other Parties, if any Governmental Authority promulgates any Laws, issues any order, decree or ruling or takes any other legal actions to restrict, stop or otherwise prohibit the transactions under the Transaction Documents, or render it illegal or impossible to consummate the transaction under the Transaction Documents, and such order, decree or ruling or other legal actions are final, unactionable, unappealable and not eligible for application for reconsideration; |
10.1.3 | Unless otherwise agreed by the Parties, to the extent that the Transferor and the Group Companies provide information and materials required for the Anti-monopoly Notification to the Purchaser in accordance with Article 2.2, the Purchaser may terminate this Agreement by giving a written notice to the other Parties, if the competent Governmental Authority does not make a review decision of unconditional approval or conditional approval of the Anti-monopoly Notification for the Acquisition Transaction within 420 days (or 510 days, if the competent Governmental Authority raises any competition concern in the review of the Anti-monopoly Notification) from the execution of this Agreement; and |
10.1.4 | The Purchaser may terminate this Agreement by giving a written notice to the other Parties, which shall indicate the effective date of termination, if: |
(a) | any of the representations and warranties of the Transferor or the Founder set forth in any Transaction Document is inauthentic, inaccurate, misleading or has omission; |
(b) | any event or circumstance takes place which causes or can be reasonably expected to cause any Material Adverse Effect; |
(c) | the Transferor or the Founder materially breaches the covenants, undertakings or obligations under any Transaction Document, which has not been cured within twenty (20) days after the Purchaser gives a written demand to do so; or |
(d) | within 600 days after the Signing Date, the conditions precedent to the payment of the Transfer Consideration set forth in Article 4.1 are not all satisfied or waived in writing by the Purchaser (other than those to be satisfied on the Closing Date in accordance with this Agreement). For the avoidance of doubt, the Purchaser shall not terminate this Agreement in accordance with this Article if the failure of satisfaction of such conditions precedent to the payment of the Transfer Consideration within the agreed time limit is due to reasons of the Purchaser or its Affiliates. |
10.1.5 | The Transferor may terminate this Agreement by giving a written notice to the other Parties, which shall indicate the effective date of termination, if: |
(a) | any of the representations and warranties of the Purchaser set forth in any Transaction Documents is inauthentic, inaccurate, misleading or has omission; |
(b) | any event or circumstance takes place which causes or can be reasonably expected to cause any Material Adverse Effect; |
(c) | the Purchaser fails to pay the Transfer Consideration to the Transferor more than |
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sixty (60) business days after the due date (except for overdue payment caused by bank or regulatory reason of the Governmental Authority); or
(d) | within 360 days after the Signing Date, the conditions precedent to payment of the Transfer Consideration set forth in Article 4.1 are not all satisfied or waived in writing by the Purchaser (other than those to be satisfied on the Closing Date in accordance with this Agreement); for the avoidance of doubt, the Transferor shall not terminate this Agreement under this Article, if the failure of satisfying the said conditions precedent to payment of the Transfer Consideration within the agreed period is caused by reason attributable to the Transferor or the Founder. |
Notwithstanding the foregoing, the Transferor shall not exercise the termination right under Article 10.1.5 hereof alone, unless XXXX Xxx exercises the termination right under the Share Purchase Agreement dated October 10, 2023 by and among XXXX Xxx, the Purchaser, XXX Xxxxx and others with respect to the sale of equity in the Target Company from XXXX Xxx and Xxx Xxxxx to the Purchaser.
10.2 | The Purchaser shall have the right to terminate this Agreement by giving a written notice to the other Parties, where the Remaining Share Transaction is not completed due to reasons of the other shareholders of the Target Company, or any share transfer transaction in the Remaining Share Transaction is terminated. |
10.3 | For the avoidance of doubt, the right to early terminate this Agreement of the Purchaser as stated above shall be in addition to any other remedies available to it, and such termination shall neither exempt any obligation of the other Parties accrued up to the date of termination of this Agreement, nor exempt the other Parties’ liability for compensating for the losses of the non-breaching Party arising from their breach of this Agreement or other Transaction Document. |
10.4 | Effect of Termination of Agreement |
It is agreed that the date when the Purchaser and/or other Parties give a notice of termination of this Agreement in accordance with Article 10.1.2, 10.1.3, 10.1.4 or 10.1.5 or when the Parties mutually agree to terminate this Agreement in writing in accordance with Article 10.1.1, shall be the date of termination of this Agreement, and:
10.4.1 | the Purchaser is not required to pay any outstanding amount to the Transferor from the date of termination of this Agreement; |
10.4.2 | all costs, expenses and Taxes arising from the transactions hereunder shall be severally or jointly borne by the Party at fault for the termination in accordance with Article 10.1, or to the extent that no Party is at fault, be borne equally by the Transferor on one part and the Purchaser on the other part with respect to the corresponding Taxes (if any) and by the Parties respectively with respect to the corresponding costs and expenses; and |
10.4.3 | After this Agreement is terminated in accordance with Article 10.1, all rights and obligations of the Parties hereto under this Agreement shall terminate, and the Parties hereto shall refund such consideration or surrender such equity (if applicable) as obtained from the other Party hereunder within thirty (30) business days after the |
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termination of this Agreement on the principles of fairness, reasonableness and good faith, having them reinstated to the state at the time of the execution of this Agreement (and for the avoidance of doubt, only with respect to the surrender of equity, such period shall mean the period for the completion of filing a registration change request for equity transfer, provided, however, that failure to make such filing within such period shall not be deemed as a breach if it is caused by refusal of cooperation by the existing shareholders or approval of the Governmental Authority). A Party shall have no claim against the other Parties under this Agreement or for the termination of this Agreement, other than the liabilities under Article 9 (Breach of Contract and Indemnification). Article 1 (Definitions and Interpretation), Article 8.2 (Use of Name), Article 8.3 (Confidentiality), Article 10.4 (Effect of Termination of Agreement) and Article 12 (Miscellaneous) shall survive the termination of this Agreement.
Article 11Force Majeure
11.1 | A Party hereto shall not be liable for its non-performance or partial performance of this Agreement directly caused by earthquake, typhoon, flood, fire, epidemic, war, riot, hostility, public unrest, strike and any other force majeure event that is unpredictable, unpreventable and inevitable to or by the affected Party (“Force Majeure”), provided that, such affected Party shall immediately give a written notice to the other Parties by fax or personal delivery without delay, and shall provide the other Parties with details of the Force Majeure event, explaining the reasons for its non-performance, partial performance or delay in performance, within fifteen days upon the said written notice. |
11.2 | Where the Party claiming Force Majeure fails to notify the other Parties and provide appropriate proof as stated above, such Party shall not be exempted from the liability for its failure to perform the obligations hereunder. The affected Party shall make reasonable efforts to mitigate the consequences of such Force Majeure, and resume performance of all relevant obligations as soon as possible after the termination of such Force Majeure. The affected Party shall be liable to other Parties for its failure to resume performance of relevant obligations after the disappearance of the reason for temporary exemption of such obligations due to Force Majeure. |
11.3 | In case of any Force Majeure, the Parties shall immediately discuss with each other to reach a fair solution, and make every reasonable effort to mitigate the consequence of such Force Majeure as much as possible. |
Article 12Miscellaneous
12.1 | Short-form Agreement |
It is agreed that, for the convenience of completing governmental procedures relating to the transactions contemplated under the Transaction Documents, the Parties shall negotiate in good faith and enter into any other separate contract, agreement or document in connection with matters hereunder (including but not limited to the short-form share transfer agreement and other documents to be entered into in accordance with the requirements of the Administration for Market Regulation and the competent Tax authority), provided that in case of any conflict or inconsistency between such contract, agreement or document and this Agreement, this Agreement shall prevail.
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12.2 | Taxes and Fees |
The Parties hereto shall respectively bear any Taxes and charges to be payable by them in connection with the transaction hereunder under the applicable Laws.
12.3 | Notice |
12.3.1 | All notices and other communications required or given hereunder shall be sent to the address of the Party concerned set forth in Schedule E by personal delivery, registered mail, postage prepaid, commercial courier service, or email. Such notices shall be deemed validly served: (i) on the date of dispatch or rejection, if sent by personal delivery, courier service, or registered mail, postage prepaid and addressed to the address for notice, and (ii) when such email arrives in the email system of the attention, if sent by email. |
12.3.2 | Any change by a Party (“Changing Party”) to the said correspondence address or notification method shall be notified by the Changing Party to the other Parties within seven (7) days upon such change. If the Changing Party fails to make timely notice as agreed, the Changing Party shall bear any losses caused thereby. |
12.4 | Entire Agreement |
This Agreement, other Transaction Documents and their schedules shall constitute the entire agreement between the Parties with respect to the Transaction, and supersede any previous agreement, memorandum of understanding, representation or other obligation entered into by the Parties for the Transaction (whether in writing or orally, including all kinds of communication), and this Agreement (including its amendments or modifications, and other Transaction Documents) contains the only and entire agreement among the Parties with respect to the matters hereunder.
12.5 | Severability |
If, under any Laws or public policy, any term or other provision hereof is held invalid, illegal or unenforceable, then as long as the economic or legal substance of the transaction contemplated hereunder is not materially adverse in any way to any Party, all other terms and provisions hereof shall remain in full force and effect. Where any term or other provision is held invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to amend this Agreement in an acceptable manner as close as possible to the original intent of the Parties, so as to complete the transaction contemplated hereunder as originally planned to the maximum extent.
12.6 | Waiver |
Either Party hereto may: (i) extend the time for any other Party to perform any obligation or take any action, (ii) waive to hold any other Party liable for any inaccuracy of any representation or warranty made herein or in any other Transaction Document, or (iii) waive to demand any other Party to comply with any agreement or required condition contained herein. No such extension or waiver shall be effective until the Party bound thereby signs a written document on such extension or waiver. No waiver of a Party of any breach of any provision of this Agreement shall operate as or be construed as a further waiver of such breach or a continuing waiver, or a waiver of any other breach or subsequent breach. Unless otherwise
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provided herein, failure or delay of any Party to exercise any right, power or remedy hereunder or otherwise available under the Laws and regulations shall not operate as a waiver of such right, power or remedy. And single or partial exercise of such right, power or remedy by such Party shall not preclude any other or further exercise of such right, power or remedy, or the exercise of any other right, power or remedy.
12.7 | Assignment and Succession |
This Agreement shall be inure to the benefits of the successors and assigns of the Parties, who may have the rights and obligations hereunder. The Purchaser may transfer or assign its rights, interests and obligations hereunder and under other Transaction Documents to any of its Affiliates, or with consent of the Transfer, to other third party. Without prior written consent of the Purchaser, none of the other Parties may transfer or assign any of their rights or obligations hereunder. From the Signing Date hereof, without prior written consent of the Purchaser, the Transferor shall not transfer the Shares in whole or in part to any third party.
12.8 | Effectiveness |
This Agreement shall take effect as of the date first written above and be binding upon the Parties after due execution by the Parties (that is, signed by hand for natural person, and affixed with common seal for enterprise legal person or other non-natural person).
12.9 | Schedules |
The schedules of this Agreement shall be integral parts of this Agreement and mutually supplementary to and shall have the same legal force as the body of this Agreement. In case of any conflict between a Schedule hereto and this Agreement, the body of this Agreement shall prevail and make amendment accordingly.
12.10 | Amendment |
This Agreement may be amended or changed by mutual agreement of the Parties hereto. Any amendment or change must be made in writing and become effective upon execution by the Parties.
12.11 | Governing Laws and Dispute Resolution |
12.11.1 | Governing Laws. The formation, validity, interpretation and performance of this Agreement and the resolution of dispute arising out of this Agreement shall be governed by and interpreted in accordance with the PRC Laws. |
12.11.2 | Dispute Resolution. Any dispute arising out of or in connection with the performance of this Agreement shall be resolved by Parties through amicable negotiation. Where any dispute fails to be resolved through negotiation within two (2) months as of the occurrence of the dispute, either Party may submit it to China International Economic and Trade Arbitration Commission (CIETAC) to be arbitrated in Beijing, in accordance with the arbitration rules of CIETAC then in force for arbitration. The arbitration tribunal shall consist of three (3) arbitrators appointed according to the arbitration rules, and the claimant and the respondent shall each appoint one (1) arbitrator, and the third (3rd) arbitrator shall be jointly selected by the Parties or appointed by the chairman of the CIETAC under joint entrustment by the Parties. |
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The arbitration language shall be Chinese. The arbitration award shall be final and binding upon the Parties. The arbitration costs shall be borne by the defeated Party.
12.11.3 | Continuing Performance. Pending dispute resolution, the Parties shall continue owning their respective other rights hereunder and shall continue performing their respective obligations hereunder. |
12.12 | Language and Counterpart |
This Agreement shall be written in Chinese. This Agreement may be made in several counterparts, each of which shall have the same legal effect.
12.13 | No Third Party Beneficiary |
This Agreement shall be binding upon and inure to the benefits of the Parties and their respective successors and permitted assigns only. Notwithstanding the foregoing, the Purchaser’s Indemnitees shall have the right to enforce this Agreement directly as if they were a Party hereto.
(The remainder of this page is intentionally left blank.)
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In Witness Whereof, this Agreement has been signed by the Parties on the date first written above.
Kongjian Zhihui Decoration (Beijing) Co., Ltd. (Common Seal) | | |
/s/ Kongjian Zhihui Decoration (Beijing) Co., Ltd. (Common Seal) | | |
| | |
By: | /s/ XXXX Xxx | |
Name: | XXXX Xxx | |
Title: | Legal Representative | |
SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT ON KONGJIAN ZHIHUI DECORATION (BEIJING) CO., LTD.
In Witness Whereof, this Agreement has been signed by the Parties on the date first written above.
Beijing Dongfeng Yilin Investment Consulting Partnership (Limited Partnership) (Common Seal) | | |
/s/ Beijing Dongfeng Yilin Investment Consulting Partnership (Limited Partnership) (Common Seal) | | |
| | |
By: | /s/ XXXX Xxx | |
Name: | XXXX Xxx | |
Title: | Executive Business Partner | |
SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT ON KONGJIAN ZHIHUI DECORATION (BEIJING) CO., LTD.
In Witness Whereof, this Agreement has been signed by the Parties on the date first written above.
XXXX Xxx | ||
By: | /s/ XXXX Xxx | |
SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT ON KONGJIAN ZHIHUI DECORATION (BEIJING) CO., LTD.
In Witness Whereof, this Agreement has been signed by the Parties on the date first written above.
Beike Meijia Technology (Zhejiang) Co., Ltd. (Common Seal) | | |
/s/ Beike Meijia Technology (Zhejiang) Co., Ltd. (Common Seal) | | |
| | |
By: | /s/ XXXX Xxxxxxxx | |
Name: | XXXX Xxxxxxxx | |
Title: | Legal Representative | |
SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT ON KONGJIAN ZHIHUI DECORATION (BEIJING) CO., LTD.
Schedule of Material Differences
The following parties in this sechedule executed the share purchase agreement using this form. The material differences are set forth below.
No. | Transferor | Shareholding | Transfer Consideration (RMB) |
1. | Beijing Xxxx Xxxxxxxxx Enterprise Management Center (Limited Partnership) | 4.5500% | 72,799,934 |
2. | Beijing Chengke Zhongying Enterprise Management Center (Limited Partnership) | 4.5500% | 90,999,917 |
3. | Beijing Dongfeng Yiyuan Investment Management Center (Limited Partnership) | 2.8792% | 57,584,497 |
4. | Beijing Dongfeng Yilin Investment Consulting Partnership (Limited Partnership) | 1.5944% | 31,887,415 |
