Share Transfer Agreement
Exhibit 4.14
This is an English translation of the original agreement in Chinese.
This is an English translation of the original agreement in Chinese.
This Share Transfer Agreement (this “Agreement”) is entered into by and among the following parties
on September 17, 2008, in Guangzhou, People’s Republic of China (“China”).
Party A: CISG Holdings Ltd
Party B: Keep High Holdings Limited
(Party A and Party B shall hereinafter individually be referred to as the “Party”, and collectively
the “Parties”.)
Target Company: Day Joy Holdings Limited, a company duly incorporated and existing under the laws
of the British Virgin Islands (the “Company”).
Whereas,
| 1. | Party A is a company duly incorporated and validly existing under the laws of the British
Virgin Islands. It desires to acquire all shares of the Company currently held by Party B; |
| 2. | Party B is a company duly incorporated and validly existing under the laws of the British
Virgin Islands. It agrees to transfer all its shares of the Company to Party A, and repurchase
shares of the Company from Party A according to the terms and conditions set forth in this
Agreement (hereinafter referred to “Share Repurchase”); |
| 3. | Guangdong Meidiya Investment Co., Ltd., a related party of Party A, has entered into a
Shareholders’ Agreement on September 17, 2008 with Chengdu Mingxia Investment Co., Ltd. and
Keiping Lin, related parties of Party B, to acquire 55% equity interests of Beijing Fanhua
Datong Investment Management Co., Ltd. (hereinafter called the “Datong”). |
In connection with the above-mentioned share transfer, the Parties hereby enter
into the following agreement through friendly consultation in accordance with the applicable laws
and regulations, and in the spirit of equality and mutual benefit and in good faith.
| 1. | Definition |
In this Agreement, unless otherwise stated, the following terms shall have the following
meanings:
Confidential Information refers to all the oral or written information related to the
business operations, business strategies, business plans, investment plans, products, sales,
employees, technology, purchases, financial results or other matters of the Company and the
Parties hereto, including but not limited to all the reports and records, and copies,
duplications and translations thereof, that contain such information.
Force Majeure refers to any and all events that occurs after the date of this Agreement
and can not be predicted, avoided or overcome, and that has caused any Party hereto to fail to
perform any or all of its obligations under this Agreement, including earthquakes, typhoons,
floods, droughts, fires, wars, inaccessibility to domestic or international transports, acts of
governments, infectious diseases, riots, disruption of electricity supply without notice, or
any other similar incident.
Closing refers to the completion of the procedures for registration of the Share
Transfer at, and obtainment of documentation evidencing such Share Transfer from, the company
registry by the Parties hereto in accordance with the laws of the British Virgin Islands laws
and this Agreement, after satisfying all applicable conditions.
Execution Date refers to the date on which this Agreement is signed and stamped by the
Parties hereto, as shown on the first page of this Agreement.
Share Transfer refers to the transfer of all its shares of the Company to Party A by
Party B according to the terms of this Agreement.
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Consideration refers to the payment Party A shall make to Party B for acquiring the
100% of shares of the Company held by Party B according to the terms of this Agreement.
Articles of Association refers to the articles of association of the Company.
Date/Day refers to the calendar day.
China or PRC refers to the People’s Republic of China, excluding, solely for the
purpose of this Agreement, Taiwan, Hong Kong and Macau.
| 2. | Share Transfer |
Party B intends to transfer 100% of its shares in the Company, and Party A agrees to acquire
such shares.
| 3. | Consideration and Method of Payment |
The Parties hereto agree that the consideration for this share transfer shall be RMB209 million,
which shall be paid in lump sum in U.S. dollars within thirty (30) business days upon Closing
and the closing of the equity transfer under the Shareholders’ Agreement. The exchange rate
between U.S. dollar and RMB shall be the buying rate for U.S. dollars announced on the website
of the People’s Bank of China on the Execution Date.
| 4. | Share Repurchase |
Because the consideration for the Share Transfer is based solely on the valuation of the
future operating results of Datong, Party A agrees to carve out the Datong related assets from
the Company, and then transfer all the shares in the Company back to Party B at US$1.00 within
ten (10) business days upon the closing of the equity transfer under the Shareholders’
Agreement; and Party B agrees to repurchase all the shares of the Company.
| 5. | Closing |
| 5.1 | The Closing shall take effect when all of the following conditions are satisfied: |
| 5.1.1 | The Parties have obtained approval from their respective boards of
directors and/or shareholders or other decision-marking bodies for the share
transfer hereunder in accordance with applicable laws and the respective articles of
association of the Parties; |
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| 5.1.2 | All representations and warranties made by Party B hereunder have
continued to be true, complete and accurate, and there have been no material
misrepresentations or omissions, until the date of the Closing; |
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| 5.1.3 | Party B shall ensure that the Company prepare a complete inventory of
all existing assets, provide true, complete and accurate financial statements
supported by legal accounting documents, and obtain written confirmation from Party
A. |
| 5.2 | Upon Closing, or beginning from another date agreed upon by the Parties hereto,
Party A will become the lawful owner of the transferred shares and have all the rights
and obligations related to the transferred shares (including all the rights, interests
and obligations relating to its investment). Party B shall cease to have any right or
obligation relating to the transferred shares, except as otherwise provided hereunder. |
| 5.3 | In the event that all of the conditions listed above have not been satisfied or
waived in writing by Party A, and the Closing has not occurred, by the end of the three
(3)-month period beginning from the Execution Date, this Agreement shall be terminated
immediately, unless the Parties agree in writing to defer the termination to a date no
later than six (6) months after Execution Date. |
| 6. | Representations, Warranties and Covenants of the Parties |
| 6.1 | Representations, Warranties and Covenants of Party A |
Party A confirms that the representations and warranties hereunder are true, complete and
accurate, and shall, except as previously disclosed, remain effective until the expiration
date of this Agreement:
| 6.1.1 | Party A is a company duly incorporated and validly existing under the
laws of the British Virgin Islands; |
| 6.1.2 | Party A has full right and power, and has obtained all internal and
external authorizations necessary, for the execution of and performance of the
obligations under this Agreement; |
| 6.1.3 | When executed by the Parties hereto, this Agreement shall constitute a
valid and binding agreement of Party A. The execution and performance of this
Agreement by Party A will not violate any law, articles of association, contract,
agreement or other legal document to which Party A is subject; |
| 6.1.4 | Party A has sufficient funds and has made adequate financial
arrangements to enable it to fulfill its payment obligations pursuant to the
terms and conditions hereof. |
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| 6.2 | Representations, Warranties and Covenants of Party B |
Party B understands and acknowledges that, although Party A or any of its directors,
officers, employees, agents or consultants may have conducted due diligence and obtained
relevant material information of the Company, Party A has executed this Agreement on the
basis of Party B’s representations, warranties and covenants hereunder. Party B confirms
that the representations and warranties hereunder are true, complete and accurate, and
shall, except as previously disclosed, remain effective until the expiration date of this
Agreement:
| 6.2.1 | Party B is a company duly incorporated and validly existing under the
laws of the British Virgin Islands and has obtained all licenses, approvals and
authorizations necessary for lawful operations of its business; |
| 6.2.2 | Party B is the registered shareholder of the Company and has legal
ownership of the shares to be transferred, of which it is the sole owner. There has
been no false capital contribution or illegal withdrawal of capital contribution; |
| 6.2.3 | Party B has not, for its own benefit or for the benefit of any third
party, placed any mortgage, pledge, guarantee, lien, trust or any other encumbrance
that may subject the shares to any claims by any third party; |
| 6.2.4 | Party B has full right and power, and has obtained all internal and
external authorizations necessary, for the execution of and performance of the
obligations under this Agreement; |
| 6.2.5 | When executed by the Parties hereto, this Agreement shall constitute a
valid and binding agreement of Party B. The execution and performance of this
Agreement by Party B will not violate any law, regulation, rule, administrative
ruling, legal judgment, arbitral decision that is binding upon Party B, breach the
terms, conditions or covenants of any agreement with any third party or otherwise
cause any conflicts of interest; |
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| 6.2.6 | Except for this Agreement, there is no binding agreement, decision or
third party’s right with respect to the sale, transfer, allocation, guarantee or
disposal in any other manner of such shares held by Party B; |
| 6.2.7 | The financial information, technical information, managerial information
and other material information disclosed by Party B is complete and accurate in all
material respects, and there are no material misrepresentations or omissions; |
| 6.2.8 | Except as expressly disclosed to Party A (see Annex 1), the Company has
not provided any form of guarantee to any other party, and there is no litigation,
investigation, penalty or arbitration caused or likely to be caused by any guarantee
or improper transaction; |
| 6.2.9 | Except for the liabilities and defects of titles as expressly disclosed
to Party A (see Annex 1), the Company has full title and right to the properties,
assets, real properties and the interests therein, and intangible assets and the
rights therein, free of any encumbrance; |
| 6.2.10 | Except as expressly disclosed to Party A (see Annex 1), there are no litigations,
claims, arbitrations, or other legal or administrative proceedings pending against
the Company; no claims have been threatened against the Company that could affect
any of its properties, assets or businesses, and there exist no facts or
circumstances that could give rise to such claims; |
| 6.2.11 | Except as expressly disclosed to Party A (see Annex 1), there is no existing
default under any material agreement or commitment by the Company, nor is there any
circumstance, event or act that could give rise to such default. |
| 7. | Treatment of Credits and Liabilities |
| 7.1 | Except as otherwise provided hereunder, all credits and liabilities of the
Company that exist as of the date of the Closing shall continue to be enjoyed and borne
by the Company. |
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| 7.2 | The following liabilities that exist as of the date of the Closing, or that
result from events that occurred before the date of the Closing shall not continue to be
borne by the Company: |
| 7.2.1 | Liabilities of the Company that has not been disclosed expressly to
Party A; |
| 7.2.2 | Taxes and fees payable that has not been disclosed expressly to
Party A; |
| 7.2.3 | Obligations and responsibilities of the Company in accordance with
agreements to which the Company is a party that have not been disclosed expressly
to Party A. |
| 7.3 | In the event that the Company assumes the liabilities set forth in Section 7.2,
Party B shall provide timely, adequate and full indemnification to the Company. |
| 8. | Transition Period Arrangement |
| 8.1 | The transition period hereunder refers to the period from the Execution Date to the
date of the Closing. During the transition period, Party B shall ensure that Party A have
the following rights with respect to the Company: |
| 8.1.1 | Party A will have the right to assign a financial employee to supervise
the operational and financial condition of the Company for the purposes of ensuring
that the operational and financial condition of the Company will not fall below the
level on the Execution Date; |
| 8.1.2 | Party A will have the right to assign an observer to the Company, who
will have the right to attend meetings of the board of directors and meetings of
senior management of the Company. |
| 8.2 | During the transition period, Party B covenants to Party A that: |
| 8.2.1 | The Company will conduct its business in the same manner as it has been
doing prior to the Execution Date, will not dispose of any assets or businesses out
of its ordinary course of business, and will not enter into any agreement or take
any other similar action that could cause adverse changes to the operational and
financial condition of the Company. |
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| 8.2.2 | The Company will cooperate with the observer by promptly reporting to
the observer the operational and financial condition of the Company, and providing
relevant materials, such as financial statements, balance sheets, income statements
and statements of changes in financial
condition. Party B shall provide necessary explanations to the relevant
materials as requested by the observer. |
| 8.3 | Upon mutual discussion and agreement of the Parties hereto, the transition period
may be terminated earlier than specified herein. |
| 9. | Confidentiality |
| 9.1 | Each Party hereto agrees that it and its employees and consultants shall keep
confidential, and shall not disclose to any third party or use for other purposes, any
and all business, technical, and financial information and other related documents,
materials, information and data provided by the other Party in connection with the
negotiation, execution or performance of this Agreement. |
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| 9.2 | Section 9.1 is not applicable to the following information: |
| 9.2.1 | Information that has already been publicly disclosed or can be
obtained in other manners in accordance with this Agreement; |
| 9.2.2 | Information that has been obtained by a Party in a manner that does
not violate the obligations of confidentiality; |
| 9.2.3 | Information that is required to be disclosed in accordance with
applicable laws; |
| 9.2.4 | Information that is disclosed by CNinsure Inc, a related party of
Party A, in accordance with the laws of the United States; |
| 9.2.5 | Information that is disclosed for the purpose of performing the
obligations hereunder. |
| 9.3 | The confidentiality obligations hereunder shall be binding upon the relevant
persons for a period of three years commencing from the date when such person becomes
aware of, gets hold of, knows, or comes into contact with the confidential information. |
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| 10. | Non-competition |
Except with the prior written consent of Party A, Party B may not invest in the insurance
intermediary industry in the PRC for a period of three years commencing from the date of the
Closing. Otherwise, Party A will have the right to demand that Party B terminate its
operations, and the right of first refusal to purchase at a
reasonable price the interests held by Party B in entities engaged in competitive businesses.
| 11. | Taxes and Expenses |
| 11.1 | Each of Party A and Party B shall be responsible for its own tax liabilities
incurred in connection with the Share Transfer in compliance with the laws. |
| 11.2 | All the other expenses incurred, including without limitation filing fees for the
change of registration with the industrial and commercial authority, and the expenses
incurred by Party A in connection with due diligence and the engagement of legal counsel,
accountants, appraisers, financial advisers and other professionals shall be borne by
Party A. |
| 12. | Liabilities for Breach |
| 12.1 | A Party hereto is in breach of this Agreement if such Party: |
| 12.1.1 | fails to perform any obligation hereunder; |
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| 12.1.2 | violates any representation, warranty or covenant hereunder; |
| 12.1.3 | makes any false or misleading representation and warranty hereunder (whether in
bad faith or not). |
| 12.2 | In the event of an aforesaid breach, the observing party will have the right to
require the breaching party to take remedial measures within 30 days and, if the
breaching party fails to remediate the breach within the specified period, to terminate
this Agreement and seek damages from the breaching party. |
| 12.3 | Each Party agrees that, without compromising or limiting the observing party’s
rights to assert claims and seek damages for breach of the covenants, warranties or
obligations under this Agreement, the breaching party shall indemnify the observing party
as requested by observing party: |
| 12.3.1 | No less than US$500,000 to have the Parties’ conditions restored to those that
existed before the breach; |
| 12.3.2 | Reasonable fees and expenses the observing party directly and indirectly incurred
as a result of the breach, including but not limited to reasonable expenses for
litigation, arbitration and/or attorneys’ fees. |
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| 12.4 | Cross-breach |
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Considering that a related party of Party A will acquire 55% of the equity interests
of Datong held by related parties of Party B and enter into the Shareholders’ Agreement, each
Party hereto agrees that the representations, warranties and covenants made by its related
party or parties under the Shareholders’ Agreement are incorporated by reference into this
Agreement as representations, warranties and covenants of such Party hereunder. A breach by a
related party of a Party hereto under the Shareholders’ Agreement shall be deemed as a breach
by such Party under this Agreement and will entitle the other Party to assert any and all
claims for the breach pursuant to this Agreement. For the avoidance of doubt, the Parties
hereto agree and confirm that, if Datong fails to fulfill the performance targets set forth
under the Shareholders’ Agreement, Party B shall pay a penalty fee to Party A in an amount
equal to the remaining amount of the security deposit provided by the original shareholders of
Datong and kept at a related party of Party A as of December 31, 2011. The original
shareholders of Datong and Party B agree that Party A may decide at its sole discretion
whether to offset the penalty fee due with the remaining amount of the security deposit its
related party holds. The original shareholders of Datong and Party B shall fully cooperate
with Party A on any decision made by Party A. |
| 13. | Force Majeure |
| 13.1 | Exemption from liabilities for breach |
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Should any Party fail to perform its obligations pursuant to the terms and conditions under
this Agreement due to Force Majeure, such Party may seek for exemption from liabilities for
breach, to the extent such breach was caused by Force Majeure, in accordance with applicable
laws and this Agreement. |
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| 13.2 | Obligations in the event of Force Majeure |
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In order to be exempted from liabilities for breach in reliance on Section 13.1, the Party
that claims to be unable to perform its obligations hereunder due to Force Majeure shall
perform the following obligations: |
| 13.2.1 | take all necessary measures to minimize or remove the effects of Force Majeure so
that the losses caused by Force Majeure are minimized; otherwise such Party shall be
responsible for the excess losses caused by Force Majeure; |
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| 13.2.2 | notify the other Party promptly and in any event no later than fifteen
(15) days after the occurrence of Force Majeure; |
| 13.2.3 | use reasonable effort to resume performance of the obligation(s) affected by Force
Majeure as soon as possible; |
| 13.2.4 | provide sufficient evidence of the existence and duration of the event of Force
Majeure. |
| 13.3 | Performance in the Event of Force Majeure |
| 13.3.1 | During the period when one or more Parties are unable to perform part or all of
the obligations under this Agreement due to Force Majeure, the Parties shall
continue to perform the other obligations set forth in this Agreement; |
| 13.3.2 | Should the event of Force Majeure continue for a period of more than ninety (90)
days, the Parties may, through amicable consultations, decide how to continue with
the performance of this Agreement, or seek other equitable ways and use all
reasonable efforts to minimize the effects of the event of Force Majeure. |
| 14. | Governing Law |
The formation, validity, interpretation, performance and dispute resolution of this Agreement
shall be governed by the laws of the Hong Kong Special Administrative Region of the PRC.
| 15. | Dispute Resolution |
| 15.1 | Any dispute arising from or in connection with this Agreement shall be resolved by
the Parties through amicable consultation. |
| 15.2 |
| 15.3 | If any provision hereof is held invalid under applicable laws, such invalidity will
not affect the validity and enforceability of the other provisions of this Agreement. |
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| 16. | Miscellaneous |
| 16.1 | This Agreement constitutes the entire representations and agreement between the
Parties and supersedes all oral or written representations, warranties, understandings
and agreements concerning the subject matters hereof between the Parties made or reached
prior to the execution hereof. The Parties acknowledge and agree that any representation
or warranty not explicitly included herein do not constitute the basis of this Agreement,
and therefore will not serve as the basis for the determination of the rights and
obligations of the Parties and the interpretation of the terms and conditions hereof. |
| 16.2 | All provisions of this Agreement are independent and severable. If any provision of
this Agreement is held to be illegal, invalid or unenforceable by any government,
governmental agency, judicial authority or arbitration institution, the validity of the
other provisions of this Agreement will not be affected thereby. |
| 16.3 | The Parties agree that they may engage in further negotiations on issues not
covered herein, and enter into a supplemental agreement in writing, after the execution
of this Agreement. Such supplemental agreement will constitute an integral part of this
Agreement. |
| 16.4 | No Party may assign its rights hereunder without the prior written consent of the
other Party. This Agreement will be binding upon the respective successors and permitted
assigns of the Parties hereto. |
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| 16.5 | This Agreement will become effective upon the execution and affixing of corporate
seal by the Parties. |
| 16.6 | All notices specified in this Agreement shall be in writing, in Chinese, and
delivered via registered mail, facsimile or other electronic means of communication. A
notice is deemed to have been duly given when it is delivered to the registered address
of the receiving Party. If the notice is sent by registered mail, it will be deemed to
have been duly given on the delivery date noted on the return receipt thereof. If the
notice is transmitted by facsimile, it will be deemed to have been duly given upon the
receipt of the confirmation of such transmission from the fax machine. |
| 16.7 | This Agreement shall be written in Chinese and executed in six originals. Each
Party shall hold one original, and the remaining originals shall be filed for approval or
registration with applicable government agencies. Each
original shall have equal legal effect. |
(The remaining of this page is intentionally left blank.)
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SIGNATURE PAGE
In witness whereof, the Parties have executed this Agreement on the date first written above.
Party A: CISG Holdings Ltd
By: Legal Representative (or Authorized Representative): /s/ Xxxxx Xx
Party B: Keep High Holdings Limited
By: Legal Representative (or Authorized Representative): /s/ Xxxxxx Xxx
Target Company: Day Joy Holdings Limited
By: Legal Representative (or Authorized Representative): /s/ Xxxxxx Xxx
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I, Xxxxxx Xxx, a shareholder of Beijing Fanhua Datong Investment Co., Ltd. (“Datong”), a related
party of Party B, hereby covenant and acknowledge the following: I agree to provide a security
deposit for the purpose of guaranteeing the fulfillment of the performance targets of Datong agreed
to by a related party of Party B in connection with the acquisition of Datong by a related party of
Party A from such related party of Party B. I further agree that, in the event that Datong fails
to achieve the performance targets set forth under the Shareholders’ Agreement, Party A may, in
accordance with the Shareholders’ Agreement and this Agreement, use the remaining amount of the
security deposit still kept at the related party of Party A as of December 31, 2009 to directly
offset the penalty fee that Party B shall pay to Party A pursuant to this Agreement.
Xxxxxx Xxx: /s/ Xxxxxx Xxx
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Annex 1
Disclosure Letter
External Guarantee and Related Party Transaction of the Company:
Liabilities and Title Defects:
Pending Litigations, Claims, Arbitrations and other Legal or Administrative Proceedings:
Defaults under Existing Material Agreements or Commitments:
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