EXHIBIT 10.32
DATED THE 16TH DAY OF OCTOBER 2003
JITTER BUG HOLDINGS LIMITED
(as "Vendor")
and
HUITUNG INVESTMENTS (BVI) LIMITED
(as "Purchaser")
and
NINETOWNS DIGITAL WORLD TRADE HOLDINGS LIMITED
-----------------------------------------------
SALE AND PURCHASE AGREEMENT
RELATING TO SHARES IN
NINETOWNS DIGITAL WORLD TRADE HOLDINGS LIMITED
(THE "COMPANY")
-----------------------------------------------
LI & PARTNERS
[Name in Chinese]
00/X., Xxxxx Xxxx Xxxxx, Xxxxxxx, Xxxx Xxxx
[Name in Chinese]
Tel\[Name in Chinese] :(000)0000 0000 Fax\[Name in Chinese] :(000)0000 0000
Our Ref :RL/GS/1710(1)/03
TABLE OF CONTENTS
Title Page No.
----- --------
1. INTERPRETATION....................................................................................... 1
2. SALE AND PURCHASE OF THE SALE SHARES................................................................. 4
3. CONSIDERATION........................................................................................ 4
4. COMPLETION........................................................................................... 4
5. VENDOR'S UNDERTAKINGS................................................................................ 6
6. VENDOR'S WARRANTY OF PROFITS......................................................................... 6
7. PURCHASER'S RIGHTS................................................................................... 7
8. QUALIFIED IPO........................................................................................ 8
9. DIVIDEND POLICY ..................................................................................... 8
10. WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS......................................................... 9
11. COSTS AND EXPENSES .................................................................................. 9
12. RESTRICTIONS ON COMMUNICATION AND ANNOUNCEMENTS...................................................... 9
13. NOTICES.............................................................................................. 10
14. GENERAL.............................................................................................. 12
15. SEVERANCE............................................................................................ 12
16. FORCE MAJEURE ....................................................................................... 12
17. PREVALENCE OF AGREEMENT.............................................................................. 13
18. LEGAL REPRESENTATION................................................................................. 13
19. GOVERNING LAW AND JURISDICTION....................................................................... 13
20. COUNTERPARTS ........................................................................................ 13
SCHEDULE 1 -- PARTICULARS OF THE PRC SUBSIDIARIES
SCHEDULE 2 -- FORM OF SHAREHOLDERS' AGREEMENT
SCHEDULE 3 -- WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS
i
THIS AGREEMENT is made on the 16th day of October 2003.
BETWEEN:
(1) JITTER BUG HOLDINGS LIMITED, a company incorporated in the British Virgin
Islands, having its registered office at P.O. Box 957, Offshore
Incorporations Centre, Road Town, Tortola, British Virgin Islands ("the
VENDOR");
(2) HUITUNG INVESTMENTS (BVI) LIMITED, a company incorporated in the British
Virgin Islands, having its registered office at X.X. Xxx 0000, Xxxx Xxxx,
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx (the "PURCHASER"); and
(3) NINETOWNS DIGITAL WORLD TRADE HOLDINGS LIMITED, a company incorporated in
the Cayman Islands with limited liability, having its registered office at
Century Yard, Cricket Square, Xxxxxxxx Drive, P.O. Box 2681 GT, Xxxxxx
Town, Grand Cayman, British West Indies, and its principal place of
business in Hong Kong at Units 0000-0 Xxxxxxxxx Xxxxx, 00 Xxx Xxxxx Xxxx
Xxxxxxx, Xxxx Xxxx (the "COMPANY").
WHEREAS:
(a) The Company has, as at the date hereof, an authorized share capital of
HK$200,000,000 divided into 2,000,000,000 Shares of HK$0.10 each.
(b) Following the Initial Group Reorganization, the Company has an issued
share capital of HK$550,000, divided into 5,500,000 Shares of HK$0.10
each, all of which have been issued and credited as fully paid.
(c) As at the date hereof, the Vendor is the legal and beneficial owner, free
from all charges, liens and other encumbrances, of the Sale Shares.
(d) The Purchaser has agreed to purchase the Sale Shares from the Vendor on
the terms and subject to the conditions set out in this Agreement.
NOW IT IS HEREBY AGREED as follows:-
1. INTERPRETATION
1.1 In this Agreement, including the Recitals, the following expressions shall
have the following meanings except where the context otherwise requires -
"Articles" the articles of association of the
Company as the same may be amended from
time to time;
"Board" the board of directors of the Company;
1
"Completion" the completion of the sale and purchase
of the Sale Shares pursuant to the
terms of this Agreement;
"Completion Date" any business days no later than
24 October 2003 (or such other date as
the parties hereto may agree in
writing);
"Directors" the directors for the time being of the
Company and "Director" means any of
them;
"Group" the Company and its subsidiaries;
"HK$" the lawful currency of HKSAR;
"HKSAR" Hong Kong Special Administrative Region
of the PRC;
"Initial Group Reorganization" the group reorganization involving the
Company entering into a sale and
purchase agreement with the Vendor,
pursuant to which the Company acquired
all the issued shares of Ixworth
Enterprises Limited (which is an
investment holding company holding the
PRC Subsidiaries) from the Vendor in
consideration of the Company issuing
5,499,999 consideration shares,
credited as fully paid, to the Vendor
and crediting as fully paid at par the
1 Share issued nil paid by the Company
to the Vendor on 7 May 2002;
"IPO" the initial public offering of the
Shares on the Main Board of the Stock
Exchange;
"Memorandum" the memorandum of association of the
Company as the same may be amended from
time to time;
"PRC" the People's Republic of China;
"PRC Subsidiaries" the subsidiaries of the Company in the
PRC as at the date hereof, namely
Beijing New
2
Take e-Commerce Limited ([Name in
Chinese]), Beijing Ninetowns Times
e-Commerce Limited ([Name in Chinese]),
Beijing Ninetowns Digital Technology
Co., Ltd. ([Name in Chinese]), and
Shanghai New Take Digital Technology
Co., Ltd. ([Name in Chinese]) and
Beijing Ninetowns Ports Software and
Technology Co., Ltd. ([Name in
Chinese]), particulars of which are set
out in Schedule 1;
"Purchase Price" HK$100 per Share;
"Qualified IPO" the initial public offering of the
Shares on the Main Board of the Stock
Exchange, which is expected to take
place on or before 31 December 2004 at
a price that will generate an annual
return rate of at least 35% (net of
withholding tax but including dividend
received) on the initial investment
amount from the date of the effective
transfer of the Sale Shares by the
Vendor to the Purchaser;
"Sale Shares" 156,000 Shares to be sold by the Vendor
and purchased by the Purchaser at the
Purchase Price pursuant to Clause 2;
"Shareholders" the holders of Shares;
"Shareholders' Agreement" the shareholders' agreement
substantially in the form set out in
Schedule 2 to be entered into between
the Shareholders;
"Share(s)" the ordinary share(s) of HK$0.10 each
in the share capital of the Company;
"Stock Exchange" The Stock Exchange of Hong Kong
Limited;
"US$" the lawful currency of the Unites
Stated of America;
"Warranties" the warranties, representations and
3
undertakings given by the Vendor and
the Company, respectively, pursuant to
Clause 10 and in Schedule 3.
1.2 The expressions the "Vendor" and the "Purchaser" shall, where the context
permits, include their respective successors and permitted assigns and
personal representatives and any persons deriving title under them.
1.3 Words importing the singular number shall include the plural and vice
versa and words importing a gender shall include every gender.
1.4 Headings of clauses are for reference only and shall be ignored in
construing this Agreement.
2. SALE AND PURCHASE OF THE SALE SHARES
Subject to the terms and conditions of this Agreement, the Vendor shall
sell and the Purchaser shall purchase the Sale Shares, free from all
charges, liens, encumbrances, equities or other adverse claims or
interests and with all rights now and hereafter attaching thereto
including the right to all dividends paid, declared or made in respect
thereof at the Purchase Price.
Name of Number of Sale Purchase Price
Purchaser Shares (HK$)
--------------------------------- -------------- --------------
Huitung Investments (BVI) Limited 156,000 15,600,000
3. CONSIDERATION
The consideration for the sale of the Sale Shares shall be HK$15,600,000
which shall be paid by the Purchaser to the Vendor on the Completion Date.
4. COMPLETION
4.1. Completion shall take place at the office of Li & Partners at 00/X, Xxxxx
Xxxx Xxxxx, Xxxxxxx, Xxxx Xxxx (or at such place as the parties hereto may
agree) on the Completion Date.
4.2. On the Completion Date, the Vendor shall procure the holding of a meeting
of the Directors and the passing thereat of resolutions approving:
4
(a) the transfer of the Sales Shares from the Vendor to the Purchaser;
(b) the registration of the Purchaser in the register of members of the
Company in respect of the Sale Shares; and
(c) the issue by the Company to the Purchaser of share certificate
representing the Sale Shares and the delivery of these share
certificates to the Purchaser.
4.3. On the Completion Date, the Vendor shall deliver to the Purchaser:
(a) board resolutions of the Vendor approving the signing of this
Agreement and the sale of the Sale Shares to the Purchaser pursuant
to the terms thereof;
(b) instruments of transfer and bought and sold notes relating to the
Sale Shares duly signed by the Vendor and the relevant share
certificate(s) representing the Sale Shares;
(c) certified copies of the board resolutions referred to in Clause 4.2;
(d) where applicable, a waiver of pre-emptive rights signed by all the
existing shareholders of the Company;
(e) a certificate executed by the Vendor and the Company in form and
substance acceptable to the Purchaser certifying that the
representations, warranties and undertakings of the Vendor and the
Company contained herein remain true and correct as if given on the
Completion Date.
whereupon the Purchaser shall effect payment to the Vendor of an amount
equal to the relevant number of Sale Shares being purchased by it under
this Agreement, multiplied by the Purchase Price, representing in
aggregate the sum of HK$15,600,000, such payment to be made in such means
and manner as the Vendor may direct.
4.4. The Purchaser shall enter into the Shareholders' Agreement upon Completion
for the purposes of regulating the business, affairs and management of the
Group as from the date thereof.
4.5. If any of the documents required to be delivered to the Purchaser on the
Completion Date are not forthcoming for any reason or if in any other
respect the foregoing provisions of this Clause 4 are not fully complied
with, the Purchaser shall be entitled to effect Completion so far as
practicable or to extend Completion to such date as may be agreed between
the parties hereto or to rescind this Agreement.
5
5. VENDOR'S UNDERTAKINGS
The Vendor undertakes to the Purchaser that:
(a) the Sale Shares are free and clear of any encumbrances, liens,
pledges, security interests, voting or other trusts or any other
restriction;
(b) prior to the IPO, it will procure that the Company will not reduce
its shareholding in each of the PRC Subsidiaries to below 90%;
(c) it will procure that Jitter Bug, Xx. Xxxx Shuang and Xx. Xxxx Min
will not sell or transfer their initial holdings of the Shares
during the 6 months period following the date that the Purchaser is
free to sell or transfer their Shares;
(d) it will procure that any new projects will not be taken up or
injected into any member of the Group on terms more favourable than
those offered to the Company, provided that the Company decides to
reject such projects;
(e) it will procure that each of the executive directors of the Company
and Mr. Ren Xiaoguang and Xx. Xx Xxxxx will enter into a service
agreement with the Company for a term of at least 4 years as soon as
practicable after Completion.
6. VENDOR'S WARRANTY OF PROFITS
Subject to Clause 16 (and in situation where a force majeure condition
occurs at any time during the financial year of the Group ending 31
December 2003, the Group's earning before tax, minority interests and
extraordinary items stated below may need to be adjusted taking into
account the circumstances of the force majeure condition), if the Group's
earning before tax and minority interests and extraordinary items (the
"EBTMIEI") for the financial year ending 31 December 2003 falls short of
HK$100 million, the Purchaser's entry valuation will be adjusted in
accordance with the following formula:
A x (1 - EBTMIEI / 106,791,000) x 100
A represents the number of Sale Shares and the Group's projected EBTMIEI
for the financial year ending 31 December 2003 is approximately
HK$106,791,000. The Vendor hereby agrees to compensate the Purchaser for
any difference between the original entry valuation and the adjusted entry
valuation referred to above by transferring to the Purchaser such number
of Shares (with each Share valued at HK$100) of the Company at nil
consideration representing such difference.
6
7. PURCHASER'S RIGHTS
7.1. The Purchaser shall have the Shareholders' rights as stipulated in the
Shareholders' Agreement.
7.2. As from the date of an IPO, the Purchaser may not sell, transfer or
otherwise dispose of their Shares prior to the expiration of a period of
six months after an IPO if it is a condition or requirement for the IPO
that AIG Asia Opportunity Fund L.P. and/or American International
Assurance Company (Bermuda) Limited do not sell, transfer or otherwise
dispose of their Shares prior to the expiration of a period of six months
after the IPO.
7.3. In consideration of the investment made by the Purchaser in the Company by
acquiring the Sale Shares from the Vendor and in consideration of the
payment of HK$1 by the Purchaser to the Vendor (receipt of which is hereby
acknowledged), the Vendor hereby grants to the Purchaser an option (the
"Put Option") to require the Vendor to purchase from the Purchaser upon
the Purchaser exercising the Put Option all their Shares (as reduced or
increased by any reorganization of the Company which takes place prior to
the sale of the Shares pursuant to the exercise of the Put Option) in the
Company at a price (denominated in US$) equal to the Purchase Price per
Sale Share paid by the Purchaser, as adjusted in accordance with Clause 6,
together with an annual rate of return thereon of 10% (denominated in US$)
if the Company is not successful in implementing the Qualified IPO by 31
December 2004. Such Put Option will be exercisable by written notice in
respect of all Shares (but not any part thereof) served by the Purchaser
upon the Vendor during the period from 1 January 2005 to 30 June 2005
(both days inclusive) and within 14 days upon receipt of the said written
notice, the Vendor will make payment for the Shares to the Purchaser in
such manner as the Purchaser may direct. The Purchaser shall waive such
Put Option immediately before the Qualified IPO. Without prejudice to the
generality of the foregoing and provided that the Qualified IPO is
successfully implemented on or before 30 June 2005, the Purchaser is
entitled, at any time prior to such Qualified IPO, to invest in such
number of old Shares of the Company from the Vendor equivalent to the
number of the Sale Shares at the same entry valuation as that of the "Sale
Shares" referred to in Clause 1.1, with each Share valued at HK$100. The
Purchaser shall refund the amount (representing the amount of the
re-invested Shares or any part thereof) they have received from the Vendor
as a result of the exercise of the Put Option and (as the case may be) pay
up the balance of the amount of the re-invested Shares in cash to the
Vendor if the Purchaser re-invests in the Shares of the Company.
7.4. The Purchaser will be provided with, and have access to all information
and material, financial or otherwise provided to a member of the Board.
The Purchaser will have the right to discuss and consult with the
management of the Group. In particular, the Group will provide to the
Purchaser:
7
(a) monthly consolidated management accounts including income statement,
balance sheet and cash flow statement of the Group within 30 days
from the last day of each calendar quarter;
(b) consolidated annual management accounts of the Group within 45 days
from the end of each calendar year;
(c) consolidated annual audited accounts of the Group within 120 days
from the end of each calendar year;
(d) annual business plan, annual budget and projected financial
statements relating to the Company at least 30 days before the
calendar/financial year end;
(e) the opportunity to discuss and review with the Board the
management's accounts within 30 days from the Purchaser's receipt of
the same; and
(f) such other operating statistics, and other trading and financial
information in such form as the Purchaser may require in order for
them to be kept properly informed about the Company's interest and
to generally protect the interest of the Purchaser.
8. QUALIFIED IPO
Subject to the prevailing economic and stock market conditions, the
Qualified IPO is expected to take place on or before 31 December 2004. For
the avoidance of doubt, the parties hereto agree to terminate this
Agreement on the receipt by the Company of an in-principle approval for
listing or, conditional upon the listing occurring as envisaged, on such
date prior to a listing as may be required by the relevant regulatory body
in order to achieve the listing, by executing a termination agreement
conditional upon the occurrence of the listing and to take effect from the
date of the listing of the Company, and in the event of the listing not
taking place by 31 December 2004, the termination agreement shall lapse
and this Agreement and all the rights, obligation and provisions hereto
shall continue to apply to the parties with full force and effect.
9. DIVIDEND POLICY
Subject to any agreement or restriction binding the Company from time to
time, any declaration of dividend by the Company for each financial year
shall be determined by Board taking into account those profits of the
Company available for distribution after appropriation of prudent and
proper reserves including allowance for future working capital, provision
for tax, interest payments and repayments of amounts borrowed. In deciding
whether in respect of any financial year the Company has profits available
for distribution, the parties hereto shall procure that the auditors of
the Company shall certify whether such profits are
8
available or not and the amount thereof (if any). In giving such
certificate, the auditors shall act as experts and not as arbitrators and
their determination shall be binding.
10. WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS
10.1 The Vendor hereby represents, warrants and undertakes to the Purchaser (to
the intent that the provisions of this Clause shall continue to have full
force and effect notwithstanding Completion) in the terms set out in
Schedule 3 and acknowledges that the Purchaser in entering into this
Agreement is relying on such representations, warranties and undertakings
and that the Purchaser, unless granting a waiver in this regard, shall be
entitled to treat the same as conditions of this Agreement.
10.2 The Warranties shall remain in full force and effect and shall continue to
subsist after and notwithstanding Completion.
10.3 The Vendor shall not (save only as may be necessary to give effect to this
Agreement) do or allow and shall procure that no act or omission shall
occur before Completion which would constitute a breach of any of the
Warranties if they were given at Completion or which would make any such
Warranties inaccurate or misleading if they were so given.
10.4 Notwithstanding the aforesaid, the Company hereby warrants and undertakes
to the Purchaser that if the Vendor fails to (a) compensate the Purchaser
for any difference between the original entry valuation and the adjusted
entry valuation referred to in Clause 6, or (b) purchase and make payment
for the Shares upon exercise of the Put Option by the Purchaser as stated
in Clause 7.3, the Company will make payment of the same out of its
profits to the Purchaser, subject to full compliance with all applicable
laws, rules and regulations.
11. COSTS AND EXPENSES
11.1 The Vendor will be responsible for all pre-approved legal costs (including
the arrangement fee) reasonably and properly incurred and other
pre-approved expenses in connection with or incidental to the negotiation,
finalization and execution of this Agreement and the sale and purchase of
the Sale Shares.
11.2 All stamp duty (if any) payable to the Government of HKSAR in respect of
the Sale Shares contemplated under this Agreement shall be borne by the
Purchaser.
12. RESTRICTIONS ON COMMUNICATION AND ANNOUNCEMENTS
12.1 The Purchaser hereto undertakes to the Vendor that it shall not at any
time after the date of this Agreement divulge or communicate any
confidential information concerning the business, accounts, finance or
contractual arrangements or other
9
dealings, transactions or affairs of the Company which may be within or
may come to its knowledge in connection with the transactions contemplated
by this Agreement and the terms and conditions of this Agreement, which
are all treated as confidential information, to any person other than to
its professional advisers, or when required by law or any rule of any
relevant stock exchange body, or to its respective officers or employees
who are required to review and consider the same and who prior to
receiving such confidential information shall be made aware of the
restrictions in respect of such confidential information and shall observe
the same as are contained herein, and the Purchaser shall use its best
endeavours to prevent the publication or disclosure of any such
confidential information concerning such matters. This restriction shall
not apply to information or knowledge which is or which properly comes
into the public domain, through no fault of any of the parties to this
Agreement or to information or knowledge which is already known to the
Purchaser at the time of its receipt.
12.2 Each of the parties hereto undertakes that it shall not at any time (save
as required by law or any rule of any relevant stock exchange or
regulatory body) make any announcement in connection with this Agreement
unless the other party hereto shall have given its consent to such
announcement (which consent may not be unreasonably withhold or delayed
and may be given either generally or in a specific case or cases and may
be subject to conditions). If any party is required by law or any rule of
any relevant stock exchange or regulatory body to make any announcement in
connection with this Agreement, the other party agrees to supply all
relevant information relating to itself that is within its knowledge or in
its possession as may be reasonably necessary or as may be required by any
exchange and regulatory body to be included in the announcement.
13. NOTICES
13.1 Any notice, claim, demand, court process, document or other communication
to be given under this Agreement (collectively "COMMUNICATION" in this
Clause) shall be in writing in the English or Chinese language and may be
served or given personally or sent to the telex or facsimile numbers (if
any) of the relevant party and marked for the attention and/or copied to
such other person as specified in Clause 13.4.
13.2 A change of address or telex or facsimile number of the person to whom a
communication is to be addressed or copied pursuant to this Agreement
shall not be effective until five days after a written notice of change
has been served in accordance with the provisions of this Clause 13.2 on
all other parties to this Agreement with specific reference in such notice
that such change is for the purposes of this Agreement.
10
13.3 All communications shall be served by the following means and the
addressee of a communication shall be deemed to have received the same
within the time stated adjacent to the relevant means of despatch:
MEANS OF DESPATCH TIME OF DEEMED RECEIPT
Local mail or courier 24 hours
Telex on despatch
Facsimile on despatch
Air courier/Speedpost 3 days
Airmail 7 days
13.4 The initial addresses and facsimile numbers of the parties for the service
of communications, the person for whose attention such communications are
to be marked and the person to whom a communication is to be copied are as
follows:
IF TO THE VENDOR:
Address: P.O. Box 957, Offshore Incorporation Centre
Road Town, Tortola
British Virgin Islands
Facsimile no.: (000) 0000-0000
Attention: Xx. Xxxx Shuang / Mr. Xxxxx Fork
IF TO THE COMPANY:
Ninetowns Digital World Trade Holdings Limited
Address: Xxxx 0000 Xxxxxxxxx Xxxxx
00 Xxx Xxxxx Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile no.: (000) 0000-0000
Attention: Xx. Xxxx Shuang / Mr. Xxxxx Fork
IF TO THE PURCHASER:
Huitung Investments (BVI) Limited
Address: X.X. Xxx 0000
Xxxx Xxxx, Xxxxxxx
Xxxxxxx Xxxxxx Xxxxxxx
With a copy to: 00/X, 000 Xxxx-Xxxxxx Xxxx
Xxxxxx, Xxxxxx, X.X.X.
Facsimile no.: (000-0) 0000-0000
Attention: Xx. Xxxxx Xx
11
13.5 A communication served in accordance with this Clause 13 shall be deemed
sufficiently served and in proving service and/or receipt of a
communication it shall be sufficient to prove that such communication was
left at the addressee's address or that the envelope containing such
communication was properly addressed and posted or despatched to the
addressee's address or that the communication was properly transmitted by
telex, facsimile or cable to the addressee. In the case of communication
by telex, such communication shall be deemed properly transmitted upon the
receipt by the machine sending the telex answerback of the addressee; in
the case of facsimile transmission, such transmission shall be deemed
properly transmitted on receipt of a report of satisfactory transmission
printed out by the sending machine.
13.6 Nothing in this Clause shall preclude the service of communication or the
proof of such service by any mode permitted by law.
14. GENERAL
14.1 This Agreement and the documents referred to herein are in substitution
for all previous agreements between all or any of the parties hereto and
contain the whole agreement between the parties hereto relating to the
subject matter of this Agreement.
14.2 No amendment or variation of this Agreement shall be effective unless in
writing and signed by or on behalf of each of the parties hereto.
14.3 The Vendor and the Purchaser shall do and execute or procure to be done
and execute all such further acts, deeds, things and documents as may be
necessary to give effect to the terms of this Agreement.
15. SEVERANCE
If any provision of this Agreement or part thereof is rendered void,
illegal or unenforceable by any legislation to which it is subject, it
shall be rendered void, illegal or unenforceable to that extent and no
further.
16. FORCE MAJEURE
Neither party shall be liable to the other parties for non-performance or
delay in performance of any of its obligations under this Agreement due to
causes reasonably beyond its control including, fire, flood, epidemic
(including without limitation severe acute respiratory syndrome), strikes,
labor troubles or other industrial disturbances, unavoidable accidents,
amendment, revision or revocation of any laws, regulations and policies,
riots and insurrections. Upon the occurrence of such a force majeure
condition the affected party shall immediately notify the other parties
with as much detail as possible and shall promptly inform the other
parties of any further developments. Immediately after the cause is
12
removed, the affected party shall perform such obligation with all due
speed.
17. PREVALENCE OF AGREEMENT
In the event of any ambiguity or conflict arising between the terms of
this Agreement and those of the Memorandum and Articles of the Company,
the provisions of this Agreement shall prevail as between the parties
hereto.
18. LEGAL REPRESENTATION
The Purchaser acknowledges that Li & Partners are the solicitors acting
for the Vendor and the Company only and the Purchaser has been advised of
its right to seek legal advice in respect of this Agreement and has been
given full opportunity to take such advice.
19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement shall be governed by and construed in accordance with the
laws of HKSAR.
19.2 In relation to any legal action or proceedings arising out of or in
connection with this Agreement, the Vendor and the Purchaser hereby
irrevocably submit to the non-exclusive jurisdiction of the Courts of
HKSAR.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
when taken together shall constitute one and the same instrument, and the
parties hereto may execute this Agreement by signing as separate
counterparts. Each counterpart may be signed and executed by a
party/parties and transmitted by facsimile transmission and shall be valid
and effectual as if executed as an original.
13
IN WITNESS whereof the parties have executed this Agreement the day and year
first above written.
SIGNED by Xxxx Xxxxxx )
) Ninetowns Digital World Trade
for and on behalf of ) Holdings Limited
NINETOWNS DIGITAL WORLD TRADE ) /s/ Xxxx Xxxxxx
HOLDINGS LIMITED )
in the presence of:- )
/s/ Sun Xiaomin
14
SIGNED by )
)
for and on behalf of )
HUITUNG INVESTMENTS ) /s/ Xxxxxx Xxxx
(BVI) LIMITED )
in the presence of:- )
/s/ Xxxxx Xxx
15
SIGNED by Ng Kin Fai )
) Jitter Bug Holdings Limited
for and on behalf of )
JITTER BUG HOLDINGS LIMITED ) /s/ Ng Kin Fai
)
in the presence of:- )
/s/ Fork Siu Xxx Xxxxx
16
SCHEDULE 1
PARTICULARS OF THE PRC SUBSIDIARIES
BEIJING NEW TAKE E-COMMERCE LIMITED
([Name in Chinese])
1. Business Licence No.: [Name in Chinese]
2. Date of Incorporation: 22 May 2000
3. Place of Incorporation: Beijing, The People's Republic of China
4. Business Scope: Research and development of network
technology; research, development and
sales of internet application software,
e-commerce software, foreign trade
system application software; provision
of technical service for self-developed
products; sales of self-developed
products.
5. Registered Capital: US$3,500,000
6. Registered Office: [Name in Chinese]
7. Legal Representative: Xx. Xxxx Shuang
8. Directors: 1. Mr. Wai Ka Xxxxxx, Xxxxx
2. Mr. Ko Xxx Xxxx
3. Xx. Xx Kin Fai
4. Xx. Xxxx Shuang
5. Mr. Ren Xiaoguang
6. Xx. Xxxx Min
9. Shareholders and their US$350,000 (10%) contributed by Beijing
respective Shareholdings: Ninetowns Yadi Wall Paper Co., Ltd.
US$3,150,000 (90%) contributed by New
Take Limited
10. Financial Year End: 31st December
17
BEIJING NINETOWNS TIMES E-COMMERCE LIMITED
([Name in Chinese])
1. Business Licence No.: [Name in Chinese]
2. Date of Incorporation: 2 June 2000
3. Place of Incorporation: Beijing, The People's Republic of China
4. Business Scope: Research and development of network
technology; research, development and
sales of internet application software,
e-commerce software, foreign trade
system application software; provision
of technical service for self-developed
products; sales of self-developed
products.
5. Registered Capital: US$250,000
6. Registered Office: [Name in Chinese]
7. Legal Representative: Xx. Xxxx Shuang
8. Directors: 1. Xx. Xxx Xxx Xx, Xxxxxxx
2. Xx. Xxxx Shuang
3. Mr. Ren Xiaoguang
4. Xx. Xxxx Min
9. Shareholders and their US$25,000 (10%) contributed by Beijing
respective Shareholdings: Ninetowns Yadi Wall Paper Co., Ltd.
US$225,000 (90%) contributed by
Shielder Limited
10. Financial Year End: 31st December
18
BEIJING NINETOWNS DIGITAL TECHNOLOGY CO., LTD.
([Name in Chinese])
1. Business Licence No.: 1101061304729
2. Date of Incorporation: 25 July 2000
3. Place of Incorporation: Beijing, The People's Republic of China
4. Business Scope: Research and development, transfer and
provision of consultancy service for
technology; provision of technological
services; sales of certified and passed
technological products; household
decorations; leasing of electronic
equipment; organization of domestic
cultural interflow; provision of
business information consulting
service.
5. Registered Capital: RMB2,250,000
6. Registered Office: [Name in Chinese]
[Name in Chinese]
7. Legal Representative: Xx. Xxxx Shuang
8. Directors: 1. Xx. Xxxx Shuang
2. Mr. Ren Xiaoguang
3. Xx. Xxxx Min
9. Shareholders and their RMB1,800,000 (80%) contributed by
respective Shareholdings: Beijing New Take e-Commerce Limited
RMB450,000 (20%) contributed by Beijing
Ninetowns Times e-Commerce Limited
10. Financial Year End: 31 December
19
SHANGHAI NEW TAKE DIGITAL TECHNOLOGY CO., LTD.
([Name in Chinese])
1. Business Licence No.: 3101011022735
2. Date of Incorporation: 13 September 2001
3. Place of Incorporation: Shanghai, The People's Republic of
China
4. Business Scope: Design and installation of computer
network; research, development and
sales of computer hardware and software
and provision of related service; sales
of construction materials, decoration
materials, machinery, household
electrical appliance, textile products;
provision of business information
consulting service.
5. Registered Capital: RMB500,000
6. Registered Office: [Name in Chinese]
7. Legal Representative: Liu Xxxx Xxxx ([Name in Chinese])
8. Directors: Xx. Xxxx Shuang
9. Shareholders and their RMB450,000 (90%) contributed by Beijing
respective Shareholdings: Ninetowns Digital Technology Co., Ltd.
RMB50,000 (10%) contributed by Beijing
Ninetowns Import & Export e-Commerce
Co., Ltd.
10. Financial Year End: 31 December
20
BEIJING NINETOWNS PORTS SOFTWARE AND TECHNOLOGY CO., LTD.
([Name in Chinese])
1. Business Licence No.: 1101061588135
2. Date of Incorporation: 1 August 2003
3. Place of Incorporation: Beijing, The People's Republic of China
4. Business Scope: Research and development of computer
software, network technology; provision
of technological services for computer
software and network; sales of
certified and passed new products;
manufacturing of computer software.
5. Registered Capital: RMB20,000,000
6. Registered Office: [Name in Chinese]
7. Legal Representative: Xx. Xxxx Shuang
8. Directors: 1. Xx. Xxxx Shuang
2. Xx. Xxxx Min
3. Mr. Ren Xiaoguang
9. Shareholders and their RMB4,000,000 (20%) contributed by
respective Shareholdings: Beijing New Take e-Commerce Limited
RMB16,000,000 (80%) contributed by
Beijing Ninetowns Times e-Commerce
Limited
10. Financial Year End: 31 December
21
SCHEDULE 2
FORM OF SHAREHOLDERS' AGREEMENT
22
SCHEDULE 3
WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS
1. GENERAL INFORMATION
The information provided and matters stated in this Agreement are true,
accurate, valid and subsisting and not misleading in any respect.
2. VENDOR AND THE COMPANY
2.1 The Vendor is the holder of Sale Shares and has full and requisite power
and authority to enter into and perform this Agreement and its obligations
hereunder and this Agreement will, when executed, constitute legal, valid
and binding on the Vendor in accordance with its terms.
2.2 The Sale Shares are issued fully paid or credited as fully paid and are
beneficially owned by the Vendor free from all pre-emption rights, liens,
charges, equities, encumbrances or interests in favour of any other person
and the same are freely transferable by the Vendor without the consent,
approval, permission, licence or concurrence of any third party.
2.3 The copies of the Memorandum and Articles of Association of the Company so
provided to the Purchaser are true and complete and have embodied in them
or annexed to them a copy of every such resolution as is required by the
relevant legislation.
3. CORPORATE STATUS
No events or omissions have occurred which the Vendor reasonably knows
whereby the constitution, subsistence or corporate status of the Company
have been or likely to be adversely affected not covered by this
Agreement.
4. INSOLVENCY
4.1 So far as the Vendor is aware, no order has been made and no resolution
has been passed for the winding up of the Company or for a provisional
liquidator
23
to be appointed in respect of the Company and no petition has been
presented and no meeting has been convened for the purpose of winding up
of the Company.
4.2 So far as the Vendor is aware, no receiver (which expression shall include
an administrative receiver) has been appointed in respect of the Company
or all or any of its assets.
4.3 So far as the Vendor is aware, the Company is neither insolvent, nor
unable to pay its debts or has stopped paying its debts as they fall due.
4.4 So far as the Vendor is aware, no event analogous to any of the foregoing
has occurred in or outside Hong Kong and no material unsatisfied judgment
is outstanding against the Company.
4.5 The Vendor has neither done nor omitted to do anything whereby the
continuance in full force and effect of any overdrafts, loans or finance
facilities extended to the Company might be affected or prejudiced.
5. REPETITION OF WARRANTIES
5.1 If Completion does not take place forthwith upon the signing of this
Agreement, the Warranties contained in this Schedule 4 shall be deemed to
be repeated immediately before Completion and to relate to the facts and
circumstances then existing.
5.2 Prior to the Completion Date, if any of the Warranties set out in this
Schedule are found to be materially untrue, inaccurate or misleading or
have not been fully carried out in any material respect, or in the event
of any of the Vendor becoming unable or failing to do anything required
under this Agreement to be done by them at or before the Completion Date,
the Purchaser may by notice in writing rescind this Agreement.
24
