Exhibit 10.12
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Hurray! Holding Co., Ltd.
and
Funway Investment Holdings, Ltd.
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Agreement on Transfer of Shares of
Beijing Enterprise Mobile Technology Co., Ltd.
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April 8, 2004
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This Agreement is executed on April 8, 2004 in Beijing by the following parties.
Party A: Hurray! Holding Co., Ltd.
Registered Address: Coden Trust Company (Cayman) Limited, Century Yard, Cricket
Square, Xxxxxxxx Drive, P.O. Box 2681GT, Xxxxxx Town, Grand Cayman, Cayman
Islands
(hereinafter referred to as the "Transferee")
Party B: Funway Investment Holdings, Ltd.
Registered Address: Romasco Place, Wickhams Cay 1, P.O. Box 3140, Road Town,
Tortola, British Virgin Islands
(hereinafter referred to as the "Transferor")
WHEREAS:
1. Beijing Enterprise Mobile Technology Co., Ltd. (hereinafter the
"Enterprise Mobile") is a Sino-foreign joint venture legally established and
validly existing under Chinese laws, its registered capital is US$410,000.
2. As of the Date of Establishment of the Transferor's Equity
Interests, Funway Investment Holdings Ltd. has contributed US$41,000, making it
owner of 10 percent equity interests in Enterprise Mobile, and legally entitled
to all shareholder rights in light of its capital contribution.
3. The Transferee is a legal person legally established and validly
existing under the laws of Cayman Islands, and intends to accept all shares of
Enterprise Mobile held by the Transferor.
In consideration of the foregoing share transfer, the parties hereto hereby
agree as follows through friendly consultation in accordance with relevant laws
and regulations and in the spirit of mutual benefit, honesty and good faith:
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I. Share Transfer
1. The Transferor agrees to transfer all of its shares of Enterprise Mobile
owned by the Transferor as if the Date of Establishment of the Transferor's
Equity Interests to the Transferee according to terms and conditions of this
Agreement. The Transferee agrees to accept such shares according to terms and
conditions of this Agreement (hereinafter "Share Transfer").
2. After Share Transfer becomes effective, the Transferee shall become the
legal owner of the shares contemplated to be transferred hereunder pursuant to
this Agreement, having all rights and obligations in respect of the shares
contemplated to be transferred hereunder (such rights including all rights,
interests and duties in respect of its contribution). The Transferor shall not
have any right, obligation or responsibility in respect of the shares
contemplated to be transferred hereunder, unless otherwise provided in this
Agreement.
3. The parties hereto agree to effect all procedures in respect of Share
Transfer according to the terms and time provided under this Agreement,
including without limitation securing approval documents for Share
Transfer/acceptance according to the laws of their respective incorporation
place.
4. Within 30 days after the execution of this Agreement, the Transferor
shall transfer to the Transferee any and all materials held by the Transferor
necessary for appropriate exercise of shareholder rights by the Transferee.
II. Share Transfer Price and Payment
1. The parties hereto agree that the price of Share Transfer is
US$10,450,000 (US Dollar Ten Million Four Hundred and Fifty Thousand only)
(hereinafter "Share Transfer Price"), among which the Transferee shall pay
US$4,450,000 (US Dollar Four Million Four Hundred and Fifty Thousand only) in
cash, the remaining US$6,000,000 (US Dollar Six Million Only) shall be paid by
issuing to the Transferor 2,134,439 ordinary shares of the Transferee at the par
value of US$0.001.
2. The parties hereto agree that the Transferee shall pay the Share
Transfer Price hereunder in the manner set forth below:
(1) At the date of execution of this Agreement, the transferee shall
deliver to
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the Transferor a deposit certificate issued by the Transferee's
bank, evidencing that the Transferee is capable to pay the cash
portion of the Share Transfer Price as provided hereunder.
(2) At the date of execution of this Agreement, the Transferee shall
deliver to the Transferor Resolution of the Board consenting the
issuance of 2,134,439 ordinary shares to the Transferor and
repurchase of such shares under circumstances set forth under
this Agreement.
(3) Within five working days after execution of this Agreement, the
Transferee shall pay to the Transferor by telegraphic transfer
US$2,225,000 (US Dollar Two Million Two Hundred and Twenty Five
Thousand Only) in the cash portion of the Share Transfer Price
("First Payment").
(4) Within five working days after the industrial and commercial
bureau effectively accepts application from the Transferee
(including its affiliates) for change of registration concerning
the purchase of the equity shares of Enterprise Network, the
Transferee shall pay to the Transferor by telegraphic transfer
US$1,200,000 (US Dollar One Million Two Hundred Thousand Only) in
the cash portion of the Share Transfer Price.
(5) Within five working days after the completion of change of
registration at the industrial and commercial bureau in
connection with the share transfer of Enterprise Network, the
Transferee shall pay to the Transferor by telegraphic transfer
US$800,000 (US Dollar Eight Hundred Thousand Only) in the cash
portion of the Share Transfer Price.
(6) Within five working days after the Effective Date of Share
Transfer of Enterprise Mobile, the Transferee shall pay to the
Transferor by telegraphic transfer US$225,000 (US Dollar Two
Hundred and Twenty Five Thousand Only) in the cash portion of the
Share Transfer Price.
(7) Both parties agree that, the Transferee shall issue to the
Transferor of 2,134,439 ordinary shares of the Transferee at the
par value of US$0.001 within five working days after the
completion of change of registration at the industrial and
commercial bureau in connection with the share transfer of
Enterprise Network.
3. If the Share Transfer fails to be effective within 90 days after
execution of this Agreement by reasons other than those on the part of the
Transferee after the Transferee effected the First Payment to the Transferor,
the Transferor shall refund the
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Transferee full amount of First Payment at the earlier of:
(1) five workings after the Transferor is expressly informed of the
failure of this Agreement to be effective as scheduled;
(2) 90 days after execution of this Agreement.
3. The Transferee is currently proposed to publicly offer certain of its
shares and be listed on NASDAQ National Market (hereinafter the "Public Listing"
or "Listing") in 2004. The shares of Transferee that will be acquired by the
Transferor hereunder can only be publicly traded upon completion of appropriate
legal procedures, and the Transferee will provide reasonable assistance in
obtaining public trading rights for the shares acquired by the Transferor. If
for whatever reason the Transferee fails to complete the Listing prior to
September 30, 2004, the Transferee shall within five working days after
September 30 repurchase 50% of the shares issued to the Transferor at the price
of US$3,000,000. If the Transferee fails to complete the Listing prior to
December 31, 2004, the Transferee shall within five working days after December
31 repurchase the remaining 50% of the shares issued to the Transferor at the
price of US$3,000,000. If the total value of the shares acquired by the
Transferor hereunder computing at the Listing price of the Transferee's shares
is less than US$6,000,000, the Transferee shall make payment of the balance to
the Transferor within five working days after the Listing.
III. Effective Date of this Agreement and of Share Transfer
1. This Agreement shall be effective upon execution by the parties hereto
or their respective authorized representatives and affixture of seals.
2. Share Transfer contemplated under this Agreement shall be effective upon
realization of all conditions precedent set forth below, and the date of
realization shall be the Effective Date of Share Transfer:
(1) this Agreement is duly executed by the parties hereto or their
respective authorized representatives;
(2) the Share Transfer contemplated hereunder has been approved by
the Board of Enterprise Mobile;
(3) this Agreement and the Share Transfer contemplated hereunder have
been approved by the original approval authority of foreign
economic
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and trade, and have been issued with approval certificate;
(4) other shareholders of Enterprise Mobile have issued commitment
letter, undertaking to waive the preemption right in respect of
the shares to be transferred hereunder; and
(5) other legal documents required under relevant Chinese laws for
the Share Transfer have been appropriately secured and relating
procedures or formalities have been validly effected;
(6) the Transferor becomes the legal shareholder of Enterprise Mobile
according to Chinese laws (the "Date of Establishment of the
Transferor's Equity Interests");
(7) the Transferee delivers to the Transferor Resolution of the Board
consenting the issuance of 2,134,439 ordinary shares to the
Transferor and repurchase of such shares under circumstances set
forth under this Agreement;
(8) both parties have been actively performing their duties and
obligations hereunder. There does not exist any act, event or
circumstance that constitutes material violation of any
provisions of this Agreement or all the representations and
commitments by any party hereto.
3. As of the date of execution of this Agreement, each party shall submit
to the other party resolution of the Board consenting the transfer/acquisition
of the shares.
4. The parties hereto shall, in good faith, complete any activities
necessary for effecting the Share Transfer provided hereunder within three
months after the execution of this Agreement, including without limitation
executing or causing third party to execute any document or application, or
securing any relevant approval, consent or permit, so as to effect performance
of this Agreement.
5. Both parties agree that the Share Transfer shall not be effective until
all conditions precedent set forth in Section 2 of this Article are realized
within agreed-upon time. If any of such conditions fails to be realized
according to the terms or within the time provided hereunder due to the error of
any party, such party shall be liable to compensate any losses or expenses thus
incurred to the other party, and the other party has the right to terminate this
Agreement therefor.
6. The parties hereto shall urge and assist Enterprise Mobile to complete
procedures for change of registration at relevant industrial and commercial
bureau
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within 30 days after the execution of this Agreement.
IV. Representations, Covenants and Warranties of the Transferor
1. As of the date of execution of this Agreement and the Date of
Establishment of the Transferor's Equity Interests, Enterprise Mobile is a
limited liability company duly organized and validly existing under Chinese
laws. The Transferor has duly paid up its subscribed capital in light of capital
contribution percentage and secured corresponding share rights according to
laws. The Transferor has performed all of its obligations as shareholder in
strict compliance with articles of association of Enterprise Mobile.
2. The Transferor has all rights, powers and authorities to enter into and
perform all duties and responsibilities under this Agreement. This Agreement is
legally binding upon the Transferor upon execution.
3. As of the Date of Establishment of the Transferor's Equity Interests,
the Transferor legally and actually owns the shares contemplated to be
transferred under this Agreement, and is capable in right and action to transfer
such shares, and has secured all necessary approvals therefor.
4. The execution or performance of this Agreement by the Transferor is not
in violation of any laws, articles of association, contracts, agreements or any
other legal documents which the Transferor is subject to.
5. As of the Date of Establishment of the Transferor's Equity Interests,
the shares contemplated to be transferred are complete and have not been
pledged, subject to any preferential right, or any third party interest, or have
any other encumbrance.
6. The balance sheet of Enterprise Mobile and other financial materials and
information provided by the Transferor to the Transferee are complete, true and
accurate. Except for the liabilities (including actual liabilities and
contingent liabilities) disclosed by the Transferor to the Transferee,
Enterprise Mobile does not have any other liabilities ("Undisclosed
Liabilities"). If there exist any Undisclosed Liabilities, the Transferor shall
be fully liable for the repayment thereof. If the Transferee or Enterprise
Mobile suffers any loss due to Undisclosed Liabilities, the Transferor shall be
liable to fully compensate all damages therefrom.
7. There does not exist any contractual arrangements between Enterprise
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Mobile and Enterprise Network that will result in Enterprise Mobile having any
indirect control of Enterprise Network.
8. There does not exist any breach of law, material administrative
punishment or any potential punishment, proceedings or potential proceedings in
respect of tax, accounting, employment, insurance and property of Enterprise
Mobile
9. As of the date of execution of this Agreement until the date of
completion of registration change at industrial and commercial bureau (including
the date of execution of this Agreement and the date of completion of
registration change at industrial and commercial bureau), unless prior written
consent is secured from the Transferee, the Transferor shall warrant that:
(1) Enterprise Mobile shall keep normal business operation, and any
expenditure in the amount higher than RMB10,000 (including
RMB10,000) shall be notified to the Transferee two working days
in advance and subject to the approval of the Transferee;
(2) Except for any change resulting form normal operations of
Enterprise Mobile, the assets and financial position of
Enterprise Mobile shall not undertake any material change
(including without limitation assignment, imposition of any
mortgage, pledge, or any third party interest);
(3) Enterprise Mobile shall not distribute investment gains to the
Transferor and other shareholders;
(4) Except for any prior share transfer agreed-upon by related
parties, Enterprise Mobile shall not change its share equity
structure or articles of association;
(5) The Transferor shall use its best endeavors to protect the
operation of Enterprise Mobile from any adverse impact; and
(6) Not to appoint, engage, or remove any director, officer, or other
key employee.
10. The Transferor warrants that, in the event of any dispute between the
Transferee and the Japanese shareholders of Enterprise Mobile arising from the
execution of this Agreement, the Transferor shall be responsible to resolve such
dispute and assume relevant consequences.
11. Any representation or warranty made by the Transferor under this
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Agreement contains no material falsehood or any omissions.
V. Representations, Covenants and Warranties of the Transferee
1. The Transferee is a legal person duly organized and validly existing
under the Laws of Cayman Islands.
2. The Transferee has full rights to conduct the matters in respect of
accepting shares from the Transferor as provided under this Agreement, and has
secured all approvals and/or authorizations in respect of execution and
performance of this Agreement.
3. The execution or performance of this Agreement by the Transferee is not
in breach of any laws, articles of association, contracts, agreements or other
legal documents which the Transferee is subject to.
4. The Transferee warrants that the fund used in the purchase comes from
legal sources, and that it will perform the obligation of paying the Share
Transfer Price to the Transferee in strict compliance with the timing and manner
as provided under this Agreement. The Transferee further warrants that, if it is
unable to fully or timely perform the obligation of paying the Share Transfer
Price, the Transferee shall perform relevant payment obligations through its
affiliates in China.
5. The information that the Transferee has already disclosed to the
Transferor contains no false, misleading representations or any material
omissions.
VI. Confidentiality
Unless expressly required by relevant Chinese laws and regulations,
articles of association, or other applicable laws and regulations, no party
shall disclose the terms of this Agreement to any third party other than the
parties hereto without the prior written consent of the other party before
completion of the transaction contemplated hereunder. This provision does not
apply to affiliates of and professionals engaged by the parties hereto.
VII. Fees and Expenses
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1. The parties hereto agree to bear their respective fees incurred for
engagement of lawyers, accountants, appraisers, financial advisors and other
professionals.
2. Any taxable liability incurred under the Share Transfer shall be borne
by the Transferor and the Transferee respectively according to laws.
3. Any other expenses occurred in connection with the Share Transfer
(including without limitation the expenses relating to change of registration at
industrial and commercial bureau) shall be equally shared by the Transferor and
the Transferee.
VIII. Other Matters relating and Amendment to this Agreement
1. The parties hereto agree to further negotiate other matters in respect
of this Agreement after execution of this Agreement and enter into supplemental
agreement in writing. Such supplemental agreement constitutes an integral part
of this Agreement.
2. Any amendment to this Agreement shall be in writing and signed by both
parties. Any amendment or addition shall constitute an integral part of this
Agreement.
IX. Breach Liability
1. Any party hereto shall be deemed in breach of this Agreement if such
party:
(1) fails to perform any obligation under this Agreement;
(2) breaches any of its representation, covenant or warranty made
under this Agreement; or
(3) its representation or warranty made under this Agreement is
inconsistent with facts or misleading (in good faith or in bad
faith).
2. Under occurrence of such breach, the non-breaching party has the right
to require the breaching party to correct within 10 days; if the breaching party
fails to correct within the specified time, the non-breaching party has the
right to terminate this Agreement and claim damages from the breaching party.
3. The parties hereto covenant to each other that without prejudice to the
right to claim damages by the non-breaching party against the breach of
covenant, warranty or obligation by the breaching party under this Agreement,
the breaching party shall be
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liable to the following damages as required by the non-breaching party:
(1) A certain sum of damages which is sufficient to restore both
parties to the status as if the Agreement is not breached;
(2) Expenses or costs directly or indirectly incurred by the
non-breaching party arising out of the breach of the Agreement
(including without limitation litigation, arbitration and/or
lawyer fees reasonably incurred by the non-breaching party
therefrom).
X. Dispute Resolution
1. Any dispute arising out of or relating to this Agreement shall be
settled by the parties hereto through friendly consultation.
2. If any dispute is not settled through friendly consultation by the
parties hereto within thirty days after the occurrence thereof, such dispute
shall be submitted to the China International Economic and Trade Arbitration
Commission for arbitration according to its rules then in effect. The award of
arbitration is final and binding upon both parties. The seat of the arbitration
is in Beijing, China.
3. If any provision of this Agreement shall be determined to be invalid
according to relevant laws, the remaining of this Agreement shall continue to be
valid and enforceable.
XI. Applicable Laws
The execution, validity, interpretation and performance of this Agreement,
and dispute resolution thereof shall be governed by relevant laws of China.
XII. Agreement Right
Neither party shall assign its rights and obligations under this Agreement
without prior written consent of the other party. Respective successors and
permitted assigns of the parties hereto are subject to provisions of this
Agreement.
XIII. Force Majeure
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1. Force Majeure means any occurrence that is uncontrollable, unpredictable
or, if predictable, unavoidable by the parties hereto, causing hindrance, impact
or delay on the part of either party to perform all or part of its obligations
under this Agreement. Such occurrence includes without limitation earthquake,
typhoon, flood, fire or other acts of God, war, riot, strike or other similar
occurrences. The parties hereto agree and acknowledge that non-performance of
this Agreement on the part of either party due to Force Majeure does not
constitute the breach provided under Section 1 of Article IX, nor shall the
non-performing party be liable to any damages or compensation therefor.
2. At occurrence of Force Majeure, the affected party shall notify the
other party immediately by the most expedient means possible and provide within
15 days documents evidencing the particulars of such occurrence and reasons for
non-performance of all or part of this Agreement or delay performance of this
Agreement. Then the parties hereto shall negotiate as to whether to delay
performance of or terminate this Agreement.
XIV. Entire Agreement
This Agreement constitutes all representations and agreements between the
parties hereto and supersedes all prior oral and written representations,
warranties, understandings and agreements between the parties relating to the
subject matter of this Agreement. The parties hereto agree and acknowledge that
any representation or covenant that is not provided under this Agreement shall
not constitute basis of this Agreement and, therefore, shall not be the basis to
determine respective rights and obligations of the parties or to interpret terms
and conditions of this Agreement.
XV. Notices
All notices required under this Agreement shall be written in Chinese and
delivered by registered mail, telecopy or other telecommunication means. Notices
shall be deemed duly given upon arrival at the registered address of the
recipient. When delivered by registered mail, the notice shall be deemed to be
duly given on the
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day of receipt noted on the return receipt. When delivered by telecopy, the
notice shall be deemed to be duly given when the delivery is confirmed by the
telecopy machine.
Transferor: Funway Investment Holdings, Ltd.
Address: Xxxx 0000, Xxxxx X, Xxx Xxxxx Xxxxxxx Xxxxxxxx, X0,
Xxxxx Xxx Road, Xxxx Xxxx District, Beijing
Zip Code: 100026
Telephone: 0000-00000000
Fax: 8610-65832334
Person to contact: Yu Qin
Transferee: Hurray! Holdings Co., Ltd.
Address: 305, China Resources Building, Jianguomen Beidajie,
Dongcheng District, Beijing
Zip Code: 100005
Telephone: 0000-00000000
Fax: 8610-85191531
Person to contact: Wang Qindai
XVI. Counterparts
This Agreement is made in Chinese in six original copies. Each party shall
hold one original copy and the remaining copies shall be used for the purpose of
approval by authorities and registration at industrial and commercial bureau.
Each copy shall have the same legal effect.
XVII. Supplemental Agreement or Attachment
Upon agreement and valid execution of the parties hereto, other document
which supplements or amends this Agreement is an attachment to this Agreement
and constitutes an integral part of this Agreement.
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Execution Page
(No body text)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the date first written above.
By: /s/ Wang Qindai
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Party A: Hurray! Holdings Co., Ltd.
Legal/Authorized Representative: Wang Qindai
By: /s/ Yu Qin
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Party B: Funway Investment Holdings, Ltd.
Authorized Representative: Yu Qin
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