EXHIBIT 10.28
DATED THE 3RD DAY OF OCTOBER 2003
JITTER BUG HOLDINGS LIMITED
(as "Vendor")
and
THE PERSONS WHOSE NAMES ARE SET OUT IN SCHEDULE 1
(as "Purchasers")
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. PURCHASERS' 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..................................................... 13
17. PREVALENCE OF AGREEMENT........................................... 13
18. LEGAL REPRESENTATION.............................................. 13
19. GOVERNING LAW AND JURISDICTION.................................... 13
20. COUNTERPARTS...................................................... 13
SCHEDULE 1 -- THE PURCHASERS..................................... 18
SCHEDULE 2 -- PARTICULARS OF THE PRC SUBSIDIARIES................ 19
SCHEDULE 3 -- FORM OF SHAREHOLDERS' AGREEMENT.................... 19
SCHEDULE 4 -- WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS....... 25
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THIS AGREEMENT is made on the 3rd 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) THE PERSONS WHOSE PARTICULARS ARE SET OUT IN SCHEDULE 1 (collectively, the
"PURCHASERS" and individually, a "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$0.10
each, all of which have been issued and credited as fully paid.
(c) As at the date hereof, the Vendor is the legal and beneficial owner, free
from all charges, liens and other encumbrances, of the Sale Shares.
(d) The Purchasers have agreed to purchase the Sale Shares from the Vendor on
the terms and subject to the conditions set out in this Agreement.
NOW IT IS HEREBY AGREED as follows:-
1. INTERPRETATION
1.1 In this Agreement, including the Recitals, the following expressions shall
have the following meanings except where the context otherwise requires -
"Articles" the articles of association of the Company as
the same may be amended from time to time;
"Board" the board of directors of the Company;
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"Completion" the completion of the sale and purchase of
the Sale Shares pursuant to the terms of this
Agreement;
"Completion Date" 13 October 2003 (or such other date as the
parties hereto may agree in writing);
"Directors" the directors for the time being of the
Company and "Director" means any of them;
"Group" the Company and its subsidiaries;
"HK$" 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
Take e-Commerce Limited ([Name in Chinese]),
Beijing Ninetowns Times
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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 2;
"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
Purchasers;
"Sale Shares" 468,000 Shares to be sold by the Vendor and
purchased by the Purchasers 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 3 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
undertakings given by the Vendor and the
Company, respectively, pursuant to Clause
3
10 and in Schedule 4.
1.2 The expressions the "Vendor", the "Purchasers" 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 Purchasers 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
Purchasers Shares (HK$)
---------- ------ -----
UOB Venture (Shenzhen) Limited 78,000 7,800,000
Titan I Venture Capital Co., Ltd. 97,500 9,750,000
Titan II Venture Capital Co., Ltd. 97,500 9,750,000
CFM Investments Limited - 195,000 19,500,000
CFM Greater China Fund
3. CONSIDERATION
The consideration for the sale of the Sale Shares shall be HK$46,800,000
which shall be paid by the Purchasers 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
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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:
(a) the transfer of the Sales Shares from the Vendor to the Purchasers;
(b) the registration of the Purchasers in the register of members of the
Company in respect of the Sale Shares; and
(c) the issue by the Company to the Purchasers of share certificate
representing the Sale Shares and the delivery of these share
certificates to the Purchasers.
4.3. On the Completion Date, the Vendor shall deliver to the Purchasers:
(a) board resolutions of the Vendor approving the signing of this
Agreement and the sale of the Sale Shares to the Purchasers 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 Purchasers 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 Purchasers shall effect payment to the Vendor of an amount
equal to the relevant number of Sale Shares being purchased by them under
this Agreement, multiplied by the Purchase Price, representing in
aggregate the sum of HK$46,800,000, such payment to be made in such means
and manner as the Vendor may direct.
4.4. The Purchasers 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 Purchasers 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 Purchasers shall be entitled to effect Completion so far as
practicable or to extend
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Completion to such date as may be agreed between the parties hereto or to
rescind this Agreement.
5. VENDOR'S UNDERTAKINGS
The Vendor undertakes to the Purchasers 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 Purchasers
are 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 Purchasers' 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 Purchasers for
any difference between the original entry valuation and the adjusted entry
valuation referred to above by transferring to the Purchasers such number
of Shares (with each Share valued at HK$100) of the Company at nil
consideration representing such difference.
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7. PURCHASERS' RIGHTS
7.1. The Purchasers shall have the Shareholders' rights as stipulated in the
Shareholders' Agreement.
7.2. As from the date of an IPO, the Purchasers 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 Purchasers in the Company
by acquiring the Sale Shares from the Vendor and in consideration of the
payment of HK$1 by each Purchaser to the Vendor (receipt of which is
hereby acknowledged), the Vendor hereby grants to each of the Purchasers
an option (the "Put Option") to require the Vendor to purchase from the
Purchasers upon the Purchasers exercising the Put Option all their Shares
(as reduced or increased by any reorganization of the Company which takes
place prior to the sale of the Shares pursuant to the exercise of the Put
Option) in the Company at a price (denominated in US$) equal to the
Purchase Price per Sale Share paid by the Purchasers, 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 Purchasers 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 Purchasers 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 Purchasers are 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 Purchasers 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 Purchasers re-invest in
the Shares of the Company.
7.4. The Purchasers will be provided with, and have access to all information
and material, financial or otherwise provided to a member of the Board.
The Purchasers will have the right to discuss and consult with the
management of the Group. In particular, the Group will provide to the
Purchasers:
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(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 Purchasers' receipt of
the same; and
(f) such other operating statistics, and other trading and financial
information in such form as the Purchasers may require in order for
them to be kept properly informed about the Company's interest and
to generally protect the interest of the Purchasers.
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
8
procure that the auditors of the Company shall certify whether such
profits are 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 Purchasers
(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 4 and acknowledge that the Purchasers in entering into this
Agreement are relying on such representations, warranties and undertakings
and that the Purchasers, 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 Purchasers 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 Purchasers as stated
in Clause 7.3, the Company will make payment of the same out of its
profits to the Purchasers, 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
Purchasers.
12. RESTRICTIONS ON COMMUNICATION AND ANNOUNCEMENTS
12.1 Each of the Purchasers hereto undertakes to the Vendor that it shall not
at any time after the date of this Agreement divulge or communicate any
confidential
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information concerning the business, accounts, finance or contractual
arrangements or other 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 each of the Purchasers 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 Purchasers 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.
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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 PURCHASERS :
UOB Venture (Shenzhen) Limited
Address: 000 Xx. Xxxxx Xxxxx
Xx. Xxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxx
Facsimile no.: (00) 0000-0000
Attention: Xx. Xxxx Xxxx Xxx Xxxx
Titan I Venture Capital Co., Ltd.
Address: 00/X., 0 Xxx Xxx X. Xxxx
Xxxxxx, Xxxxxx
Facsimile no.: (000-0) 0000-0000
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Attention: Xx. Xxxxx Xxx / Xx. Xxxxxx Xxxx
Titan II Venture Capital Co., Ltd.
Address: 00/X., 0 Xxx Xxx X. Xxxx
Xxxxxx, Xxxxxx
Facsimile no.: (000-0) 0000-0000
Attention: Xx. Xxxxx Xxx / Xx. Xxxxxx Xxxx
CFM Investments Limited - CFM Greater China Fund
Address: 00/X., 0 Xxx Xxx X. Xxxx
Xxxxxx, Xxxxxx
Facsimile no.: (000-0) 0000-0000
Attention: Xx. Xxxxx Xxx / Xx. Xxxxxx Xxxx
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 Purchasers 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
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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
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 Purchasers acknowledge that Li & Partners are the solicitors acting
for the Vendor and the Company only and the Purchasers have been advised
of their right to seek legal advice in respect of this Agreement and have
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 each of the Purchasers
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.
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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 Holdings Limited ) /s/ Xxxx Xxxxxx
in the presence of: )
/s/ Sun Xiaomin
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SIGNED by Ng Kin Fai )
) Jitter Bug Holdings Limited
for and on behalf of ) /s/ Ng Kin Fai
JITTER BUG HOLDINGS LIMITED )
)
in the presence of :- )
/s/ Fork Siu Xxx Xxxxx
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SIGNED by )
Quek Cher Teck (Authorised Signatory) )
)
for and on behalf of ) /s/ Quek Cher Teck
UOB VENTURE (SHENZHEN) LIMITED )
)
in the presence of :- )
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SIGNED by )
)
for and on behalf of )
TITAN I VENTURE CAPITAL CO., LTD. ) /s/ Xxxxxx Xxxx
in the presence of :- )
/s/ Xxxxxx Xxxx
SIGNED by )
)
for and on behalf of )
TITAN II VENTURE CAPITAL CO., LTD. ) /s/ Xxxxxx Xxxx
in the presence of :- )
/s/ Xxxxxx Xxxx
SIGNED by )
)
for and on behalf of )
CFM INVESTMENTS LIMITED - CFM ) /s/ Xxxxxx Xxxx
GREATER CHINA FUND )
in the presence of :- )
/s/ Xxxxxx Xxxx
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SCHEDULE 1
NAME ADDRESS NO. OF SHARES PURCHASED
---- ------- -----------------------
UOB Venture (Shenzhen) 000 Xx. Xxxxx Xxxxx 78,000
Limited St. Denis Street
Port Louis, Mauritius
Titan I Venture 00/X., 0 Xxx Xxx X. Xxxx 97,500
Capital Co., Ltd. Taipei, Taiwan
Titan II Venture 00/X., 0 Xxx Xxx X. Xxxx 97,500
Capital Co., Ltd. Taipei, Taiwan
CFM Investments Limited - 0/X., 00X Xxxxxxx Xxxxx 000,000
XXX Xxxxxxx Xxxxx Fund Xx. Xxx'x Drive
Xxxxxx Town
Grand Cayman
Cayman Islands
British,
West Indies
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SCHEDULE 2
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
19
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
20
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]
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 Beijing New
respective Shareholdings: Take e-Commerce Limited RMB450,000 (20%)
contributed by Beijing Ninetowns Times
e-Commerce Limited
10. Financial Year End : 31 December
21
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
22
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 Beijing
respective Shareholdings: New Take e-Commerce Limited
RMB16,000,000 (80%) contributed by Beijing
Ninetowns Times e-Commerce Limited
10. Financial Year End : 31 December
23
SCHEDULE 3
FORM OF SHAREHOLDERS' AGREEMENT
24
SCHEDULE 4
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 Purchasers 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
25
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 Purchasers may by notice in writing rescind this Agreement.
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