Exhibit 10.1
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SHARE PURCHASE AGREEMENT
AMONG
EFG PARTNERS LIMITED
FOCUS MEDIA HOLDING LIMITED
APPRECIATE CAPITAL LTD.
ZHANG QINGYONG
AND
XXXX XXXXXXX
DATED AS OF
JULY 21 2006
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SHARE PURCHASE AGREEMENT
This Share Purchase Agreement (this "Agreement"), dated as of July 21, 2006,
among EFG PARTNERS LIMITED, a company with limited liability incorporated and
validly existing under the laws of the British Virgin Islands (the "Seller"),
FOCUS MEDIA HOLDING LTD., a company with limited liability incorporated and
validly existing under the laws of the Cayman Islands (the "Buyer"), APPRECIATE
CAPITAL LTD., a company with limited liability incorporated and validly existing
under the laws of the British Virgin Islands (the "Company") and together with
Xx. Xxxxx Qingyong and Xx. Xxxx Xxxxxxx, the shareholder of EFG PARTNERS
LIMITED. (the "Seller's Shareholder").
WHEREAS:
1. The Seller legally owns all issued shares of the Company.
2. The Seller's Shareholder and the board of directors of the Seller,
through resolutions duly passed in each case on July 20, 2006, respectively,
have approved the sale of 70% of the all issued shares of the Company ("the
Shares") to the Buyer.
3. The Seller desires to sell, and the Buyer desires to purchase, the
Shares, upon the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, further undertakings and agreements herein
contained and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. As used in this Agreement:
"ADRs" means the American depositary shares of Buyer as listed on the
NASDAQ National Market, Inc.
"Sanwei Advertisement" means Beijing Yangshi Sanwei Advertisement Co.,
Ltd.
"Shenzhen Yangshi Sanwei" means Shenzhen Yangshi Sanwei Advertisement
Co., Ltd.
"Approved Accounting Firm" means the accounting firm employed by the
Buyer.
"2006 Audited Financial Report" means the financial report issued by
Approved Accounting Firm in accordance with U.S. GAAP based on Sanwei
Advertisement and its consolidated subsidiaries' audited financial status for
the twelve-month period starting from September 1, 2006 and ending August 31,
2007.
"2007 Audited Financial Report" means the financial report issued by
Approved Accounting Firm in accordance with U.S. GAAP based on Sanwei
Advertisement and its consolidated subsidiaries' audited financial status for
the twelve-month period starting from September 1, 2007 and ending August 31,
2008.
"2008 Audited Financial Report" means the financial report issued by
Approved Accounting Firm in accordance with U.S. GAAP based on Sanwei
Advertisement and its consolidated subsidiaries' audited financial status for
the twelve-month period starting from September 1, 2008 and ending August 31,
2009.
"2006 Audited Annual Appraised Net Income" or "P1" means annual net
income for the twelve-month period as set forth in the profit table of 2006
Audited Financial Report, plus the sum of all amounts deducted in arriving at
such audited net income to make provision for the adjustment amount for
appraised annual net income, bad account reserves, the goodwill impairment and
the reserve fund (including all other items which shall be withdrawn as defined
under U.S. GAAP Income Confirmation Principle).
"2007 Audited Annual Appraised Net Income" or "P2" means annual net
income for the twelve-month period as set forth in the profit table of 2007
Audited Financial Report, plus the sum of all amounts deducted in arriving at
such audited net income to make provision for adjustment amount for appraised
annual net income, the bad account reserves, the goodwill impairment and the
reserve fund (including all other items which shall be withdrawn as defined
under U.S. GAAP Income Confirmation Principle).
"2008 Audited Annual Appraised Net Income" or "P3" means annual net
income for the twelve-month period as set forth in the profit table of 2008
Audited Financial Report, plus the sum of all amounts deducted in arriving at
such audited net income to make provision for adjustment amount for appraised
annual net income, the bad account reserves, the goodwill impairment and the
reserve fund (including all other items which shall be withdrawn as defined
under U.S. GAAP Income Confirmation Principle).
"Appraised Annual Net Income" means dated as of the end of the third
month after the end of every fiscal year (e.g. when appraising the annual net
income of 2006 fiscal year, the time dated as of November 30, 2007), 100% of the
account receivable with account age exceeding 90 days.
"C1"means the consideration amount the Buyer shall pay the Seller in
the first year (2007) after the Purchase Closing Date.
"C2"means the consideration amount the Buyer shall pay the Seller in
the second year (2008) after the Purchase Closing Date.
"C3"means the consideration amount the Buyer shall pay the Seller in
the third year (2009) after the Purchase Closing Date.
"Gross Profit" means the difference of the audited turnover of Sanwei
Advertisement within a fiscal year less business tax and additional tax, less
the hardware depreciation, less the pre-film lease fees, less all the cost and
expenses incurred for obtaining the pre-film lease agreement, and less other
relevant cost (including but not limited to salaries, welfares, and social
insurance of relevant staffs) (confirmed in accordance with U.S. GAAP).
"Gross Profit Rate" means the proportion of Gross Profit of Sanwei
Advertisement to its turnover within a fiscal year.
"M1" means the Gross Profit Rate of Sanwei Advertisement for the
twelve-month period starting from September 1, 2006 and ending August 31, 2007.
"M2" means the Gross Profit Rate of Sanwei Advertisement for the
twelve-month period starting from September 1, 2007 and ending August 31, 2008.
"M3" means the Gross Profit Rate of Sanwei Advertisement for the
twelve-month period starting from September 1, 2008 and ending August 31, 2009.
"D" means the total consideration of the transaction under this
Agreement, provided that any of M1, M2 and M3 is lower than 55%, ("D") =
(C1+C2+C3) X 75%.
"FM Ordinary Shares" means the ordinary shares, $0.00005 par value per
share, of Buyer; such ordinary shares have the same right as other ordinary
shares issued by the Buyer.
"Dealing Price of FM Ordinary Share" means the average close price of
Buyer's shares on the NASDAQ Market fifteen (15) days before the Purchase
Closing Date.
"Litigations" means claims, law suit, prosecution or arbitration,
interpellation, legal procedure or investigation raised by or against any
Government Department.
"Affiliate" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person. In the former sentence, "Control" (including the terms "controlled by"
and "under common control with") means the possession, directly or indirectly,
of the power to direct or cause the direction of the affairs or management of a
Person, whether through the ownership of voting securities, by Contract or
otherwise, including the constitution of an actual control.
"PRC" means the People's Republic of China, but solely for the
purposes of this Agreement excluding the Hong Kong Special Administrative
Region, Macau Special Administrative Region and the island of Taiwan.
"Business Day" means any day that is not a Saturday, a Sunday or other
day when banks are required or authorized by law to be closed in PRC or USA.
"Agreement" means this Share Purchase Agreement among the parties
hereto, as amended, modified or supplemented from time to time.
"Group Companies" means the Company, the subsidiaries of the Company,
any variable interest entity controlled by and consolidated with the Company,
the Acquired
Businesses, and any entities which is controlled by any of the aforesaid
companies, a list of which companies is set forth in Schedule 1.1 hereto.
"Business" means cinema film advertisement agency, design, production
and dissemination business of the Group Companies, as currently operated.
"Purchase Closing Date" means the date when all the conditions set
forth in Article VI and Article VII of this agreement are satisfied and other
terms and conditions of this agreement are complied with.
"Competitive Business" means the following business which involves any
party of this Agreement: (i) cinema film advertisement agency, design,
production and dissemination, (ii) media marketing for elevator post of any
commercial buildings, (iii)media marketing for of LCD advertisement in any
commercial buildings and media marketing of newspaper shift advertisement, (iv)
media marketing for out-of-home LED advertisement, and (v) wireless
advertisement. The "commercial buildings" shall include but not limited to
commercial buildings, department stores, places of catering and entertainment,
shopping malls, hospitals, airports, railway stations, coach stations, golf
fields, health centers, automobile 4S stores, apartments, airport coach, banks,
governmental buildings and other public places.
"Contract" means any contract, agreement, arrangement or
understanding, whether written or oral and whether express or implied.
"Control" (including the terms "controlled by" and "under common
control with"), with respect to the relationship between or among two or more
parties, means the possession, directly or indirectly, of the power to direct or
cause the direction of the affairs or management of a party, whether through the
ownership of voting securities, by Contract or otherwise, including the
ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of such
party.
"Control Agreement" means, collectively, the agreements, contracts and
instruments, a list of which is attached hereto as Schedule 1.5, which enable
the Buyer to control and consolidate with its financial statements each Group
Company and the Acquired Businesses.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Key Management" means Xx. Xxxxx Qingyong (Chinese Characters) and Xx.
Xxxx Yongmei (Chinese Characters).
"Material Adverse Effect" or "Material Adverse Change" means any
effect or change that would be materially adverse (i) to the business, assets,
condition (financial or otherwise), operating results, or operations of any
Group Companies, or (ii) to the ability of any of the Seller's Shareholder to
timely consummate the transactions contemplated by this Agreement or by any of
the Ancillary Documents.
"Governmental Authority" means Chinese government or any government or
governmental or regulatory departments thereof, or administrative subdivision
thereof, or any agency or committee thereof, or any court or arbitrator.
"Law" means any statute, code, law, ordinance, regulation or rule or
other legally binding requirement of any Governmental Authority.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Ancillary Documents" means those agreements, documents and
instruments as set forth in Schedule 1.6.
"Claim" means any and all administrative, supervisory or judicial
litigation/arbitration, prosecution, application, appeal, request, payment
notice, compensation claim, lien, or any notice, investigation, litigation
procedure, consent order or consent agreement concerning the lawful or unlawful
activities.
"Employee's Misconduct" means an employee's gross negligence in the
performance of his duties to the Group Companies; an employee's misappropriation
of assets of, or embezzlement from, the Group Companies; willful breach by an
employee of such employee's material obligations under the relevant Service
Agreement entered into by the employee; a material breach by the employee of
this Agreement, the Confidentiality Agreement, the Manager Non-Compete Agreement
and the Employee Non-Compete Agreement entered into by such employee; and
willful violation of Buyer's Code of Ethics or other written policy.
"Encumbrance" means any security interest, pledge, mortgage, lien,
charge, limitation, condition, equitable interest, option, easement,
encroachment, right of first refusal, adverse claim or restriction of any kind,
including any restriction on transfer or other assignment, as security or
otherwise, of or relating to use, quiet enjoyment, voting, receipt of income or
exercise of any other attribute of ownership.
"Guaranty" means, as to any Person, any contract, agreement or
understanding of such Person pursuant to which such Person guarantees the
indebtedness, Liabilities or obligations of others, directly or indirectly, in
any manner, including agreements to purchase such indebtedness, Liabilities or
obligations, or to supply funds to or in any manner invest in others, or to
otherwise assure the holder of such indebtedness, Liabilities or obligations
against loss.
"Intellectual Property" means (a) all rights in inventions (whether
patentable or un-patentable and whether or not reduced to practice), all
improvements thereto, and all patents, patent applications, and patent
disclosures, statutory invention registrations together with all re-issuances,
divisions, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof and all rights therein provided by Law or international
treaties and conventions; (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith; (c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith; (d) all trade secrets and
confidential business information (including databases, ideas, research and
development,
know-how, formulas, compositions, manufacturing and production processes and
techniques, technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information, and business and marketing plans
and proposals); (e) all computer programs and software (including data and
source and object codes and related documentation); (f) all other property
rights in connection with the foregoing; and (g) all copies and tangible
embodiments thereof (in whatever form or medium).
"Liabilities" means any debts, liability or obligation (whether known
or unknown, claimed or not, absolute or probable, individually or in the
aggregate, liquidated or outstanding, due or overdue), and any or all law suits,
damages, tax variations, penalties fines, interests, tax assessments, judgments,
losses, taxes, court fees, costs (including but not limited in the attorney
fees, the expert consultant fees and the out-of-pocket fees).
"Person" means any natural person, corporation, limited liability
corporation, unincorporated organization, partnership, association, joint stock
company, joint venture, trust or government, or any agency or political
subdivision of any government, or any other entity.
ARTICLE II
PURCHASE AND SALE OF THE SHARES
2.01 Purchase and Sale of the Shares. Subject to the terms and
conditions set forth in this Agreement, on the Purchase Closing Date, the Seller
shall sell to Buyer the Shares and Buyer shall purchase from the Seller the
Shares, on a fully converted and diluted basis, for total consideration
consisting of the terms and conditions, as set forth below.
2.02 Purchase Considerations. In consideration of purchasing the
Shares, the Buyer shall pay the Seller the amount calculated based on the
financial performance (i.e. the "2006 Audited Annual Appraised Net Income", the
"2007 Audited Annual Appraised Net Income" and "2008 Audited Annual Appraised
Net Income") of Sanwei Advertisement after the Purchase Closing Date and based
on the gross profit rate for the continuous three (3) years after the Purchase
Closing Date, and such amount shall be calculated in accordance with the formula
provided in Article 2.05. The Seller undertakes that the audited annual net
income of Sanwei Advertisement in the year of 2006, 2007 and 2008 will be at
least then 2 million, 3 million and 5 million respectively.
2.03 Purchase Deposit. Within seven (7) business days after the date
of this Agreement, the Buyer shall pay the Seller a Purchase Deposit (the
"Deposit") with the amount of USD 2.8 Million and the Seller shall provide the
Buyer with a Purchase Deposit Receipt immediately.
2.04 Purchase Closing.
Unless this Agreement being terminated pursuant to Article VIII before
the Purchase Closing Date, subject to the terms and conditions set forth in this
Agreement, the sale and purchase of the Shares shall be accomplished within
three (3) business days after the Purchase Closing Date.
On the Purchase Closing Date, the Seller shall deliver/accomplish or
cause to be delivered/accomplished the following items:
(1) all previously undelivered documents and the Ancillary
Documents required under Article VII hereto;
(2) in respect of Company, the business license, common seal (if
exists), registered certificates of share or share
certificate book (including the registered certificates of
those un-issued share) and all minute books and other
statutory books or equivalent items which shall be kept by
relevant shareholders, in accordance with the Law of the
jurisdiction where Company is registered ; and
(3) any other procedures which are necessary for the legal
transfer of the Share to the Buyer on the Purchase Closing
Date.
2.05 Formula for Calculation of Consideration and Payments
Arrangement.
(a) Within fifteen (15) days after the issuance and delivery of the
2006 Audited Financial Report to both the Seller and the Buyer,
the Buyer shall pay the Seller the initial consideration("C1"),
C1 shall be calculated as the followings:
(1) If P1 > or = USD 2 million, C1 shall be calculated by:
C1= P1X2X70%
The Buyer shall then pay the Seller the amount in cash
equaling the amount as for (C1 less Deposit), the USD 2.8
million Deposit paid by the Buyer to the Seller shall be
automatically transferred as the part of such amount in
cash.
(2) If P1 < USD 2 million, C1 shall be calculated by:
C1= P1X2X70%
The Seller shall then return the Buyer the balance between
USD 2.8 million and the Deposit, i.e. the Seller shall
return the Buyer the amount as for (USD 2.8 million less C1)
in cash. Such amount shall be paid in USD to the account
designated by the Buyer within fifteen (15) business days
after the issuance and delivery of the 2006 Audited
Financial Report to both the Seller and the Buyer.
(b) Within fifteen (15) business days after the issuance and delivery
of the 2007 Audited Financial Report to both the Seller and the
Buyer, the Buyer shall pay the Seller the initial
consideration("C2"), C2 shall be
calculated as the followings:
(1) If P2 > or = USD 2.7 million, C2 shall be calculated by:
C2 = P2 X2X70%
(2) If P2 < USD 2.7 million, C2 shall be calculated by:
C2 = P2 X1X70%
50% of the C2 shall be paid by Buyer to Seller in cash, and the
other 50% amount shall be paid by FM Ordinary Shares with equal
value. The amount of FM Ordinary Shares shall be calculated by :
(C2X50%) / Dealing Price of FM Ordinary Shares.
(c) Within fifteen (15) business days after the issuance and delivery
of the 2008 Audited Financial Report to both the Seller and the
Buyer, the Buyer shall pay the Seller the initial consideration
("C3"), C3 shall be calculated as the followings, except for the
circumstances under (d) of this Section, which shall be adjusted
in accordance with (d):
(1) If P3 > or = USD 3.6 million, C3 shall be calculated by:
C3= P3X2X70%
(2) If P3 < USD 3.6 million, C3 shall be calculated by:
C3= P3X1X70%
50% of the C3 shall be paid by Buyer to Seller in cash, and the
other 50% amount shall be paid by FM Ordinary Shares with equal
value. The amount of FM Ordinary Shares shall be calculated by :
(C3X50%) / Dealing Price of FM Ordinary Shares. The lock-up
period for such shares shall be twelve (12) month from the date
of the issuance of such shares.
(d) Special Provision of Formula for Calculation of Consideration.
The Seller undertakes to the Buyer that the gross profit rate
(i.e. M1, M2 and M3) of Sanwei Advertisement will not less then
55% for continuous three (3) years after the Purchase Closing
Date. Should any of M1, M2 or M3 less then 55%, the Seller agrees
to adjust the consideration amount under this Agreement as D, and
the balance will be deducted upon the payment of C3 in order to
make the final payment made by the Buyer to the Seller equal
D-(C1+C2). If D-(C1+C2) <0, the Buyer shall not pay C3 and the
Seller shall pay the Buyer the balance between the amount being
deducted and C3, such
amount shall be paid in USD to the bank account appointed by
Buyer within fifteen (15) business days after the issuance and
delivery of the 2008 Audited Financial Report to both the Seller
and the Buyer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller and the Seller's Shareholder, jointly and severally,
represent and warrant to the Buyer as follows as of the date hereof:
3.01 Due Organization, Good Standing and Power. The Seller is a
company duly incorporated, validly existing and in good standing under the laws
of the British Virgin Islands with independent juristic personality. The Seller
has the requisite power and authority (corporate and other) to own, lease and
operate its assets and to conduct the business now being conducted by it. The
Seller has all requisite power and authority to enter into this Agreement and
the Ancillary Documents to which it is a party and to perform its obligations
hereunder and thereunder.
3.02 Company Status. The Company is a holding company duly
incorporated, validly existing and in good standing under the laws of the
British Virgin Islands which has no business activities. The Company has no
Liabilities or obligations and is not party to any Contract, other than this
Agreement and the Ancillary Documents to which it is a party.
3.03 Authorization, Enforceability. The execution and delivery of this
Agreement and the Ancillary Documents to which the Seller has been duly
authorized by all necessary corporate action on the part of each such party.
Subject to the public policies, each of this Agreement and the Ancillary
Documents constitutes a valid and binding agreement of the Seller, enforceable
against each of them in accordance with its terms.
3.04 Capitalization; Ownership and Transfer of Shares; Valid Issuance.
(a) The Shares set forth in Schedule 3.04 hereto constitute the only
equity capital of the Company. All of the Shares were duly authorized for
issuance and are validly issued, fully paid and non-assessable.
(b) The Seller is the only record and beneficial owner of the said
Shares and has good and marketable title to such Shares, free and clear of any
and all Encumbrances. The Seller has the corporate or other applicable
organizational power and authority to sell, transfer, assign and deliver the
Shares as provided in this Agreement, and such delivery will convey to the Buyer
good and valid title to the Shares, free and clear of any and all Encumbrances.
3.05 Group Companies.
a) Schedule 3.05 sets forth for each of the Group Companies (i) its
jurisdiction of incorporation, formation or organization, as applicable, and
(ii) the number of authorized, issued and outstanding shares of each class of
its capital stock or other authorized, issued and outstanding equity interests,
as applicable, the names of the holders thereof, and the number of shares or
percentage interests, as applicable, held by each such holder. Except
as set forth in Schedule 3.05, each of the Group Companies is duly incorporated
or formed, as applicable, validly existing and, in good standing under the Laws
of its jurisdiction of incorporation or formation, as applicable, has the
requisite corporate or similar power and authority (corporate and other) to own,
lease and operate its assets and to carry on its business now being conducted by
it. All the issued and outstanding shares of capital stock or other equity
interests of the Group Companies are owned of record, free and clear of any
Encumbrances except as set forth in Schedule 3.05.
b) No shares of capital stock or other equity or ownership interests
of any Group Company have been issued in violation of any rights, agreements,
arrangements or commitments under any provision of applicable Law, the
certificate of incorporation or bylaws or comparable organizational documents of
any Group Company or any Contract to which the Group Company is a party or by
which the Group Company is bound.
3.06 Corporate Records. The Seller has made available to the Buyer
true, correct and complete copies of the certificates of incorporation, by-laws
or comparable organizational documents and business licenses of each Group
Company. Such certificates of incorporation, by-laws, or comparable
organizational documents and business licenses are in full force and effect.
None of the Group Companies is in violation of any of the provisions of its
certificate of incorporation, bylaws or comparable organizational documents. The
transfer books and minute books of each Group Company that have been made
available for inspection by Buyer prior to the date hereof are true and
complete.
3.07 No Approvals or Conflicts. The execution, delivery and
performance by the Seller of this Agreement and the Ancillary Documents to which
it is a party do not and will not (i) violate, conflict with or result in a
breach by any of the Seller Parties of the organizational documents of any of
the Seller, (ii) violate, or conflict with any Governmental Order or Law
applicable to the Seller, and require any order, consent, approval or
authorization of, or notice to, or declaration, filing, application,
qualification or registration by the Seller with, any Governmental Authority,
except in the cases such violation, conflict, breach, default, termination,
acceleration, cancellation or failure to give notice, register or obtain
approval would not reasonably be expected to have a Material Adverse Effect. No
Governmental Authorizations are required for the execution and performance by
the Seller of this Agreement and the Ancillary Documents and the consummation by
the Seller of the transactions contemplated hereby and thereby
3.08 Compliance with Law; Governmental Authorizations. None of the
Group Companies is in violation of any Governmental Order or Law applicable to
them or any of their respective properties, except where any such violation
would not reasonably be expected to have a Material Adverse Effect.
3.09 Licenses. Except otherwise agreed in Schedule 3.09, each of the
Group Companies has obtained all material licenses, consents, authorizations,
approvals, and permits of and from, and has made all declarations and filings
with, all Governmental Authorities necessary for the conduct of the Business and
such licenses, consents, authorizations, approvals or permits contain no
materially burdensome restrictions or conditions. To the Knowledge of the
Seller, no government department is considering modifying, suspending or
revoking any such licenses, consents, authorizations or approvals and each of
the Group Companies is in compliance with the provisions of all such licenses,
consents, authorizations, approvals, orders, certificates or permits.
3.10 Litigation. There are no suits, actions, arbitrations,
proceedings or investigations pending or, to the Knowledge of the Seller,
threatened against any of the Seller and the Group Companies.
3.11 Tax Matters.
(a) (i) All income Tax Returns required to be filed by or on behalf of
the Group Companies has been accurately prepared in all material respects and
filed in a timely manner (within any applicable extension periods) and are true,
correct and complete in all material respects, (ii) all Taxes shown to be due on
such Tax Returns have been timely paid in full or will be timely paid in full by
the due date thereof, and the Group Companies have adequately provided for all
Taxes for which they are required to provide, except where any failure to pay or
underpayment would not reasonably be expected to have a Material Adverse Effect,
(iii) no material claims being asserted in writing with respect to any Taxes of
any of the Group Companies; and, (iv) no material probable claim for
compensation being asserted with respect to any Taxes of any of the Group
Companies.
(b) Each of the Group Companies is and has been in compliance with all
applicable Laws relating to the payment, withholding and exemptions of Taxes and
has duly and timely withheld from employee salaries, wages and other
compensation and has paid over to the appropriate taxing authorities all amounts
required to be so withheld and paid over for all periods under all applicable
Laws, except where any such noncompliance would not reasonably be expected to
have a Material Adverse Effect;
(c) The Seller has made available to the Buyer complete copies of all
approval documents with respect of any Tax exemption or all statements to
qualify for Tax exemptions;
(d) There are no audits or investigations or penalties by any taxing
authority of any of the Group Companies in progress nor, to the Knowledge of the
Seller is there any pending or threatened audit or investigation or penalties by
any Government Authority;
(e) No Group Company is a party to any tax indemnity, tax allocation
or tax sharing or similar agreement or arrangement (whether or not written)
pursuant to which it will have any obligation to make any payments after the
Purchase Closing.
3.12 Officers, Employees and Labor.
(a) Each of the Group Companies has complied in all material aspects
with all applicable Laws relating to the employment of labor, including
provisions thereof relating to wages, hours, social welfare, equal opportunity
and collective bargaining. There is no organized labor strike, dispute, slowdown
or claim pending, or to the Knowledge of the Seller, threatened, against or
affecting any of the Group Companies. None of the Group Companies has any
Contract with any labor union.
(b) None of the employees of the Group Companies is subject to any
Governmental Order that would interfere with the use of his or her best efforts
to promote the interests of the Group Companies. Any of such employees is now
obligated: (i) the execution, delivery and performance of any of this Agreement
and the Ancillary Documents; (ii) the conduct of the Business of any Group
Company as currently conducted or as proposed to be conducted.
(c) None of the execution, delivery and performance of any of this
Agreement and the Ancillary Documents will constitute an event under any benefit
plan or individual agreement that will or may result in any payment,
acceleration, vesting or increase in material benefits with respect to any
employee, former employee, consultant, agent or director of the Group Companies.
(d) Except as required by applicable laws and regulations, none of the
Group Companies has any obligation to provide retirement, death or disability
benefits to any of the present or past employees of the Group Companies, or to
any other person.
(e) None of the Seller and the businesses or entities operated or
owned by the Seller, nor, to the Knowledge of the Seller, any of their
respective officers, directors, supervisors, managers or employees have,
directly or indirectly, owned any interest, in any entity, or have entered into
any transactions, that may compete with the Group Companies, or are otherwise
involved in the Business.
(f) (i) no material labor dispute, work stoppage, slow down, strike or
other conflict with the employees of any of the Group Companies exists; (ii)
none of the Group Companies is engaged in any unfair labor practice (iii) there
is no unfair labor practice complaint pending or, to the Knowledge of the
Seller, threatened against any of the Group Companies before any competent
Governmental Agency, and no grievance or arbitration proceeding arising out of.
3.13 Loans.
Except as described in this Agreement and the Ancillary Documents,
none of the Group Companies has, directly or indirectly: (i) extended credit,
arranged to extend credit, or renewed any extension of credit, to or for any
director or executive officer of the Seller and the Group Companies, or (ii)
made any material modification to any term of any of the above mentioned
individuals.
3.14 Prohibited Payments.
To the Knowledge of the Seller, none of the Group Companies, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of the Group Companies, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to a
political activity, made any direct or indirect unlawful payment to any
government official or employee from corporate funds; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
3.15 Share Option and Other Plans.
None of the Group Companies has any pension, profit sharing, stock
option, employee stock purchase or other plan providing for incentives or other
compensation to employees (aside from any salary, bonus payable and social
insurance arrangements provided by Laws).
3.16 Intellectual Property.
(a) The Group Companies have rights to acquire from its management and
employees all Intellectual Property material to the Business, including any
job-related inventions as Intellectual Property held by any management or
employees of the Group Companies (including the Intellectual Property holding by
the senior management of the Group Companies).
(b) Each Group Company has taken all reasonable steps in accordance
with standard industry practices to protect its rights in its Intellectual
Property and at all times has maintained the confidentiality of all information
that constitutes or constituted a trade secret of each Group Company.
(c) No Group Company is a party to any pending legal proceedings which
involve a claim of infringement, unauthorized use, or violation of any
intellectual property right by any Person against such Group Company or
challenging the ownership, use, validity or enforceability of, any material
Intellectual Property owned by or exclusively licensed to such Group Company.
(d) To the Knowledge of Seller, no Person is infringing, violating,
misusing or misappropriating any material Intellectual Property owned by any
Group Company, and no written claims have been made against any Person by any
Group Company.
3.17 Material Contracts
(a) Except as set forth on Schedule 3.17, on the Purchase Closing
Date, none of the Group Companies is a party to or is bound by:
1. any Contract which contains restrictions with respect to
payment of dividends or any other distribution in respect of
its capital stock, rights or other interests;
2. any Contract requiring the applicable Group Company to make
future capital expenditures in excess of RMB 500,000 (either
individually or in the aggregate);
3. any Contract applicable to Group Company, which lead to
indebtedness with an amount in excess of RMB500,000;
4. any loan or advance by a Group Company to, or investment by
a Group Company in, any Person, in each case, which involves
an amount in excess of RMB500,000, or any agreement,
contract or commitment relating to the making of any such
loan, advance or investment;
5. any Contract with a Group Company, or any management,
service, consulting or any other similar type of Contract
requiring payment of fees in excess of RMB500,000 per year;
6. any material warranty, guaranty Contract;
7. any material Contract that cannot be terminated by a Group
Company without liability upon less than ninety (90) days'
notice;
8. any collective bargaining agreement with any labor union or
other representative of employees;
9. any Contract that governs any joint venture, partnership or
other cooperative arrangement or any other relationship
involving a sharing of profits and risks;
10. any Contract that would result in the merger with or into or
consolidation into another Person;
11. any Contract for the sale of any of the assets of any Group
Company or for the grant to any Person of any preferential
rights to purchase any of its assets;
12. any Contract in relation to real estate, including but not
limited to building purchase contract, building lease
contract;
13. any Contract with any Governmental Authority; or
any material amendment, modification or supplement in respect of any
of the foregoing made other than in the ordinary course of business
consistent with past practice (each of (1)-(13), a "Material
Contract").
(b) True and correct copies (or, if oral, written summaries) of each
of the Material Contracts have been made available to the Buyer.
(c) No condition exists or event has occurred that would constitute a
default by (x) any of the Group Companies under any Material Contract or (y) any
other party to any Material Contract.
3.20 Compliance with Laws. (a) Each of the Group Companies is, and at
all times has been, in full compliance with all applicable Laws in all material
aspects.
(a) No event has occurred or circumstance exists that (i) may
constitute or result in a violation by any of the Group Companies of any
applicable Law where any such violation or failure would reasonably expected to
have a Material Adverse Effect, or (ii) may give rise to any obligation on the
part of any of the Group Companies to undertake, or to bear all or any portion
of the cost of, any remedial action of any nature and any such obligation would
reasonably be expected to have a Material Adverse Effect. None of the Group
Companies has received any notice or other communication (whether oral or
written) of illegal behavior or probable illegal behavior from any Governmental
Authority.
(b) To the Knowledge of Seller, none of the Group Companies or any
director, officer, agent, employee, or any other Person associated with or
acting for or on behalf of the foregoing, has offered, paid, and promised to pay
any money to any Government department or its Official for the benefits or
interests of the Group Company.
(c) To the Knowledge of Seller Parties, none of the beneficial owners
of any interest in any Group Company is a Government Official.
3.21 None of the assets of the Group Companies constitute state-owned
assets.
3.22 The Seller and the Group Companies have fully provided Buyer with
all the information known to the Seller and Group Companies that Buyer has
requested. None of this Agreement, the Ancillary Documents or any other
statements or certificates or other materials made or delivered, or to be made
or delivered to Buyer in connection herewith or therewith, contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements herein or therein not misleading.
3.23 No other Representations or Warranties. Except for the
representations and the warranties made in Article III herein, no other
representations or warranty is expressed or implied by the Seller or the
Seller's Shareholder to the Buyer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Seller on the date of this
agreement as follows:
4.01 Organization. Buyer is a corporation duly incorporated, validly
existing and in good standing under the Laws of the Cayman Islands. Buyer has
all requisite corporate power and authority to own its assets and to carry on
its business as now being conducted by it and is duly qualified or licensed to
do business and is in good standing, except where the failure to be so qualified
or licensed would not reasonably be expected, individually or in the aggregate,
to have a material adverse effect on the ability of the Buyer to consummate the
transactions contemplated by this Agreement and by the Ancillary Documents to
which it is a party.
4.02 Authorization, Enforceability. Buyer has the corporate power and
authority to execute and deliver this Agreement and the Ancillary Documents. The
execution and delivery of this Agreement and the Ancillary Documents have been
duly authorized by all necessary corporate action on the part of Buyer and no
other corporate or stockholder proceedings or actions are required to consummate
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Buyer and constitutes a valid, enforceable and binding
agreement of the Buyer.
4.03 No Approvals or Conflicts. The execution, delivery and
performance by the Buyer of this Agreement and the Ancillary Documents and the
consummation by the Buyer of the transactions contemplated hereby and thereby do
not and will not (i) violate, conflict with or result in a breach by the Buyer
of the certificates of incorporation, by-laws or equivalent documents of the
Buyer, (ii) violate, conflict with or result in a breach of, or constitute a
default by the Buyer, or give rise to any right of termination, cancellation or
acceleration under, or result in the creation of any Encumbrance upon any of the
properties of the Buyer under, any note, bond, mortgage, indenture, deed of
trust, license, franchise, permit, lease, contract, agreement or other
instrument to which the Buyer or any of its
properties may be bound, (iii) violate or result in a breach of any Governmental
Order or Law applicable to the Buyer or any of its properties or (iv) require
any order, consent, approval or authorization of, or notice to, or declaration,
filing, application, qualification or registration with, any Governmental
Authority, except, with respect to the foregoing clauses (ii), (iii) and (iv)
above, as would not, individually or in the aggregate, reasonably be likely to
have a material adverse effect on the ability of the Buyer to consummate the
transactions contemplated by this Agreement and by the Ancillary Documents to
which it is a party.
4.04 No Other Representations or Warranties. Except for the
representations and warranties contained in this Article IV, the Buyer will not
make any other express or implied representation or warranty to the Seller.
ARTICLE V
FURTHER UNDERTAKINGS AND AGREEMENTS OF THE PARTIES
5.01 Conduct of Business Prior to a Closing.
(a) Without the prior consent of the Buyer, except as contemplated by
this Agreement and the Ancillary Documents, from and after the signing date of
this Agreement and until the Purchase Closing Date, (1) the Company shall cause
the Group Companies to (i) conduct the Business in all material respects in the
ordinary course of business consistent with past practice, (ii) not change the
scope of the Business and (iii) use their commercially reasonable efforts to
maintain satisfactory relationships with cinemas, customers and others having
material business relationships with them. (2)Except as contemplated by this
Agreement and except as set forth on section 5.01, the Company shall cause the
Group Companies to not do any of the following without the prior written consent
of the Buyer:
(i) except for purchases and sales by a Group Company to or from
another Group Company, purchase, sell or issue any of their
capital stock or other equity interests or grant or make any
option, subscription, warrant, call, commitment or agreement of
any character in respect of their capital stock or other equity
interests;
(ii) issue or pay any dividends other than to any of the Group
Companies;
(iii) conduct any split, recombination or reclassification or issuance
of capital stock;
(iv) sell or otherwise dispose of assets with value in the aggregate
in excess of RMB 1,000,000, including sales of assets in the
ordinary course of business;
(v) other than the acquisitions, merge or consolidate with any
Person;
(vi) acquire assets having an aggregate value exceeding RMB 1,000,000,
including (A) acquisitions in the ordinary course of business and
(B) capital expenditures permitted by clause (vii) below;
(vii) prior to the Purchase Closing Date, make capital expenditures in
excess of RMB1,000,000 in aggregate;
(viii) provide loans or guarantee any indebtedness for borrowed money
from the Seller or its subsidiaries in the ordinary course of
business;
(ix) incur any Encumbrance of material assets, other than Permitted
Encumbrances;
(x) increase the compensation of employees of the Group Companies
other than (A) in the ordinary course of business or (B) as
required by any agreement in effect as of the date hereof or as
required by Law;
(xi) make any material change in the accounting methods or practices
followed by any of the Group Companies (other than such changes
that have been required by Law or U.S. GAAP);
(xii) enter into any contract that restricts the Group Companies from
engaging in any line of business in any geographic area or
competing with any Person that materially impairs the operation
of the business of the Group Companies, individually or taken as
a whole;
(xiii) enter into any partnership, limited liability company or joint
venture agreement;
(xiv) terminate or make any material amendment to a material contract;
(xv) other than (A) in the ordinary course of business, (B) as
required by any agreement in effect as of the date hereof or (C)
as required by Law, enter into, adopt or amend any employment
agreement or employee benefit plan with or for the benefit of any
of its employees;
(xvi) purchase, cancel or terminate any insurance policy naming any of
the Group Companies as a beneficiary or a loss payee;
(xvii) subject to the written consent of the Buyer, amend any of its
organizational documents; or
(xviii) agree or commit to do any of the foregoing.
(b) During the period commencing on the date hereof and ending on the
Purchase Closing Date, the Seller and the Seller's shareholder will cause the
Group Companies to afford Buyer and its counsel, accountants and other
authorized representatives, during normal business hours, upon reasonable
advance notice to the officers, directors, employees, accountants and other
advisors and agents, properties, books, records and contracts of the Group
Companies, provided that such access does not interfere with normal business
operations. The parties hereto agree that the provisions of the Confidentiality
Agreement shall continue in full force and effect following the execution and
delivery of this Agreement. All information obtained by the Buyer and its
counsel, accountants and representatives pursuant to this Section 5.1(b) shall
be kept confidential in accordance with the Confidentiality Agreements.
5.02 Filing and Consents. Each of the Seller, the Seller's Shareholder
and the Group Companies, on the one hand, and the Buyer, on the other hand,
shall use all commercially reasonable efforts to obtain and to cooperate in
obtaining any consent, approval, authorization or order of, and in making any
registration or filing with, any Governmental Authority or other Person required
in connection with the execution, delivery or performance of this Agreement,
including any filings pursuant to (i) the Securities Act and Exchange Act, and
(ii) any other applicable filings or consents. To the extent feasible under
applicable PRC laws and regulations, the Seller's Shareholder (including the
Chinese resident who obtains the shares of the Seller after the execution of
this Agreement) shall complete all necessary filings or registrations, or obtain
all necessary approvals, as required by the State Administration for Foreign
Exchange ("SAFE") after the Purchase Closing Date. The Seller and the Seller's
Shareholder hereby agree that, with respect to the Shareholder that is a PRC
resident and the Seller's Shareholder (including the Chinese resident who
obtains the shares of the Seller after the execution of this Agreement) (each a
"SAFE Registrant"), unless and until Buyer has received sufficient documentation
to its satisfaction that such SAFE Registrant has completed all necessary
filings or registrations required to comply with the rules and regulations of
SAFE, the Seller shall not release any FM Ordinary Shares to any such SAFE
Registrant or to dispose of any FM Ordinary Shares by any methods.
5.03 Tax Matters; Cooperation; Preparation of Returns; Tax Elections.
(a) The Seller and the Seller's Shareholder agree to furnish or cause
to be furnished to each other, as promptly as practicable, such information
and assistance relating to any of the Group Companies (including access to
books and records, employees, contractors and representatives) as is
reasonably necessary for the filing of all Tax Returns, the making of any
election related to Taxes, the preparation for any audit by any Taxing
Authority, and the prosecution or defense of any claim, suit or proceeding
relating to any Tax Return. The Seller shall retain all books and records
with respect to Taxes pertaining to the Group Companies until the
expiration of all relevant statutes of limitations. At the end of such
period, each party shall provide the other with at least ten days prior
written notice before destroying any such books and records, during which
period the party receiving such notice can elect to take possession, at its
own expense, of such books and records.
(b) The Company shall prepare, or cause to be prepared, all Tax
Returns in respect of any of the Group Companies for any taxable year
ending on or before the Purchase Closing Date. The Seller shall timely pay
to the relevant Taxing Authority all Taxes due in connection with any such
Tax Returns.
(c) The Group Companies shall pay all transfer, documentary, sales,
use, registration and other such Taxes (including all applicable real
estate transfer Taxes, but excluding any Taxes based on or attributable to
income or gains) and related fees incurred in connection with this
Agreement and the Ancillary Documents and the transactions contemplated
hereby and thereby.
5.04 Non-Competition.
(a) the Seller and the Seller's Shareholder agree that for a period of
(i) four (4) years following the Purchase Closing Date and (ii) two (2)
year following the termination or expiration of the Service Agreement
entered into between any of the Seller and Buyer (or a Person designated by
Buyer), whichever is later, other than the Group Companies' Business, the
Seller and the Seller's Shareholder will not directly or
indirectly engage or invest (other than investments of less than 2% of the
equity securities of any company listed on a domestic or foreign securities
exchange) in any Competitive Business.
(b) the Seller and the Seller's Shareholder agree that for a period of
(i) four (4) years following the Purchase Closing Date and (ii) two (2)
year following the termination or expiration of the Service Agreement
entered into between the Seller and Buyer (or a Person designated by
Buyer), whichever is later, the Seller and the Seller's Shareholder shall
not, and shall cause its Affiliates not to, solicit, recruit or hire any
person who at any time on or after the date of this Agreement is an
employee of the Group Companies.
(c) The Buyer hereby agrees that, within four (4) years from the
Purchase Closing Date, the Buyer shall not acquire the company with the
same business as Sanwei Advertisement (i.e. the agency, design,
manufacture, dissemination of film advertisement), except for: (1) the
company acquired becoming the subsidiary of Sanwei Advertisement after
restructure; (2) with contents from the Seller and Seller's shareholder.
(d) Each of the parties hereto acknowledges and agrees that the remedy
at Law for any breach of the requirements of this Section 5.04 would be
inadequate, and agrees and consents that without intending to limit any
additional remedies that may be available, temporary and permanent
injunctive and other equitable relief may be granted without proof of
actual damage or inadequacy of legal remedy.
5.05 Working Capital Loans. The Buyer hereby undertake that: upon the
execution of this Agreement, the Buyer or any third party appointed by the Buyer
shall provide Sanwei Advertisement with a loan credit with the highest amount of
XXX 00 Xxxxxxx. Xxxx Xxxxxx Advertisement's application, the Buyer or the said
third party shall execute a Working Capital Loan Agreement with Sanwei
Advertisement, in which the annual interest rate shall be 6% and the term shall
be one year. Such loan shall be paid to an escrow account supervised by both of
Sanwei Advertisement and the Buyer/the said third party and shall only be used
as the pre-film advertisements lease fees and supplementing the operation fund
of Sanwei Advertisement, provided that the loan using for supplementing the
operation fund of Sanwei Advertisement is not exceeding XXX 0 million.
5.06 Establishment of the Wholly-Foreign Owned Enterprise.
The Seller and the Seller's Shareholder undertake that prior to the
Purchase Closing Date: (1) cause the Company to establish a wholly-foreign owned
enterprise in Beijing (the issuance of the Business License shall be deemed to
be the completion of the establishment), in which the Company holds all the
equity of interest; (2) such wholly-foreign owned enterprise, Sanwei
Advertisement and its shareholders shall entered into a series of Controlling
Agreements in accordance with the form set forth in Exhibit 5.06, which is
valid, binding and enforceable.
5.07 Equity Transfer Agreement. The Seller and the Seller's
Shareholder undertake that, prior to the Purchase Closing Date, the Seller and
the Seller's Shareholder will cause both Sanwei Advertisement's shareholders
(Zhang Qingyong and Xxxx Xxxxxxx)
to enter into Share Transfer Agreement with the company or individual appointed
by the Buyer in accordance with the form set forth in Exhibit 5.07, which
stipulates that Zhang Qingyong and Xxxx Xxxxxxx shall once in a time transfer
70% of the equity interest they held in Sanwei Advertisement to the company or
individual designated by the Buyer. The formalities of the alteration of
registration of the above share shall be completed with 15 days of the Purchase
Closing Date.
Moreover, the Seller and the Seller's Shareholder undertake that, with
respect to the individual shareholders (Zhang Qingyong and Xxxx Xxxxxxx)who is
still holding 30% equity interest in Sanwei Advertisement after the execution of
the aforesaid transaction, if all or part of those 30% equity interest is to be
transferred, the companies or individuals appointed by the Buyer shall have the
priority right of purchase; the issues agreed above shall be incorporated into
articles of association of Sanwei Advertisement's.
5.08 Key Management Independence.
(a) The Buyer agrees that it shall, during the period commencing from
the Purchase Closing Date and ending on August 31, 2009, take all actions
necessary and appropriate to enable the Key Management to continue to run
the Group Companies as an independent business unit of the Buyer, provided
that the Key Management's ability to operate the Group Companies as an
independent business unit shall be subject to (i) the compliance with the
Buyer's code of ethics; (ii) any relevant requirements of the
Xxxxxxxx-Xxxxx Act and other U.S. securities laws and regulations; and
(iii) no Employee's Misconduct on the part of Key Management. In addition,
the Group Companies is entitled to dismiss any of the current management
because of his/her misconduct.
(b) If there is any Employee's Misconduct on the part of the member of
Key Management, the Buyer is entitled to cause the Group Companies to
dismiss such member of Key Management immediately and the Group Companies
shall act in accordance with the request.
5.09 The Seller and the Seller's Shareholder undertake that the
following matters shall be finalized before the Purchase Closing Date:
(a) Sanwei Advertisement has repaid all his credits to its shareholder
and there is no Related Parties Transaction between Sanwei Advertisement
and its shareholder.
Related Parties Transaction means transactions concerning the
resources and liabilities between Sanwei Advertisement and its shareholder,
including: purchase or sale the assets, investments (money management by
mandate and loan by mandate included), financial supports, guarantees,
assets lease, assets management, assets donation, credits and/or
liabilities re-arrangements, signing the licenses agreements, the transfer
of the research and development projects, the purchase of raw material,
fuel and power, products selling, labor relationship, marketing activities,
joint venture investments, and any other agreements/transactions which may
course the transfer of resources and liabilities.
(b) All the agreements and/or contracts regarding the operation and
distribution of Changchun Branch entered by and between Sanwei
Advertisement Changchun Branch and Xx. Xxx Sheng (the director of Sanwei
Advertisement Changchun Branch) shall be terminated; or Changchun Branch
shall be under the liquidation formalities in accordance with the law. The
potential legal risks of Sanwei Advertisement Changchun Branch shall be
eliminated.
5.10 The Seller Parties shall cause the Company to provide evidence
satisfactory to Buyer that the Group Companies' total liabilities, including
without limitation any debt, loan, other debts (potential dispute, unpaid taxes
due, etc.), shareholder loans and other account payable as of the Purchase
Closing Date shall not exceed the Group Companies' accounts receivable, cash,
inventory and pre-payments as of the same date.
5.11 Management Accounts.
Commencing from the Purchase Closing Date until August 31, 2009:
(a) The Buyer, the Seller and the Seller's Shareholder agree to cause
the Company to provide the management accounts of the Company with respect to
each calendar month, which shall be prepared in accordance with U.S. GAAP and in
accordance with the accounting methods satisfactory to the Buyer. The Company
shall provide to the Buyer and the Seller the monthly management accounts for
the period by August 31, 2009 and such management accounts shall be provided no
later than ten (10) calendar days from the close of the previous month.
(b) The Buyer, the Seller and the Seller's Shareholder agree to cause
the Company to provide the management accounts of the Company with respect to
each calendar quarter. The Company shall provide the quarterly management
accounts for the period by August 31, 2009 to the Buyer and the Seller and such
management accounts shall be provided no later than five (5) calendar days from
the close of the previous quarter.
(c) Company shall appoint Approved Accounting Firm to review the
quarterly management accounts described in paragraph (b) above.
(d) If the Buyer or the Seller disagrees with the audited quarterly
management accounts, the disagreed party shall give notice to the other party
within five (5) business day upon the acceptance of such quarterly management
accounts. The Parties shall consult with each other with respect to the
quarterly management accounts. If no consensus with respect to the quarterly
management accounts can be reached within ten (10) business days upon the
issuance of the notice for the disagreement, the two parties shall jointly
appoint another international accounting firm to review the quarterly
management. The result of its review shall be final and binding to each party.
The auditing fees shall be equally born by the two parties. For the avoidance of
doubt, the auditing of such accounting firm shall be only for the purpose of
confirming the appraised annual net income of the Company as stipulated in
Article II, and shall have no relation to the figures in the management accounts
publicly announced by the Buyer.
5.12 Appointment of Management.
The Seller agrees to authorize Buyer to appoint a vice-financial
controller for the Company and Sanwei Advertisement on or following the Purchase
Closing Date.
5.13 Confidentiality.
Each party hereto shall keep confidential, and shall cause its
officers, directors, and employees to keep confidential, the terms and
conditions hereof, of any predecessor agreement and of any Ancillary Document
(collectively, the "Confidential Information") except as Buyer and Seller
mutually agree otherwise; provided that any party may disclose Confidential
Information (i) to the extent advised by competent legal advisors that such
disclosure is required by applicable Law and so long as, where such disclosure
is to a Governmental Authority, such party shall use all reasonable efforts to
obtain confidential treatment of the Confidential Information so disclosed, (ii)
to the extent required by the rules of any stock exchange, (iii) to its
officers, directors, employees and professional advisors as necessary to the
performance of its obligations in connection herewith and with the Ancillary
Documents so long as such party advises each Person to whom the Confidential
Information is so disclosed as to the confidential nature thereof, and (iv) to
its investors and any Person otherwise providing substantial debt or equity
financing to such party so long as the party advises each Person to whom the
Confidential Information is so disclosed as to the confidential nature thereof.
5.14 Announcement.
Without the violation of the law applicable to the Buyer, the
commencing time for the announcement with respect to the transaction under this
Agreement shall be the date of this Agreement. The Announcement shall be sent by
the Buyer to the Seller for review in advance and shall be agreed by both
Parties.
ARTICLE VI
CONDITIONS TO THE SELLER' OBLIGATIONS
The obligation of the Seller to effect a Closing under this Agreement
as specified below is subject to the satisfaction, at or prior to the Purchase
Closing Date, of each of the following conditions, unless validly waived in
writing by Seller.
6.01 Representations and Warranties. Unless otherwise provided or
expected by this Agreement, the representations and warranties made by Buyer in
this Agreement shall be true and correct (in all material respects, in the case
of those representations and warranties which are not by their express terms
qualified by reference to materiality) as of the date of this Agreement and as
of the Purchase Closing Date, except for changes permitted or contemplated by
this Agreement.
6.02 Performance. Buyer shall have performed and complied in all
material respects with all agreements and obligations required by this Agreement
and the Ancillary
Documents to be so performed or complied with by it prior to the Purchase
Closing Date.
6.03 No Material Adverse Change. Since the date hereof until the
Purchase Closing Date, there shall not have been any effect or change that would
be materially adverse to the business, assets, condition (financial or
otherwise), operating results, or operations of Buyer and its subsidiaries,
taken as a whole, or to the ability of Buyer to timely consummate the
transaction contemplated by this Agreement or by any of the Ancillary Documents.
6.04 Injunction. At the Purchase Closing Date, there shall not be in
effect any Law or Governmental Order directing that the transactions provided
for herein not be consummated as provided herein or which has the effect of
rendering it impossible to consummate such transactions.
ARTICLE VII
CONDITIONS TO BUYER'S OBLIGATIONS
The obligation of the Buyer to effect a Closing under this Agreement
as specified below is subject to the satisfaction, at or prior to the Purchase
Closing Date, of each of the following conditions, unless validly waived in
writing by Buyer.
7.01 The representations and warranties made by the Seller and the
Seller's Shareholders in this Agreement shall be true and correct (in all
material respects, in the case of those representations and warranties which are
not by their express terms qualified by reference to materiality) as of the date
of this Agreement and as of the Purchase Closing Date.
7.02 The Seller shall have performed and complied in all material
respects with all agreements and obligations required by this Agreement and the
Ancillary Documents to be so performed or complied with by it prior to the
Purchase Closing Date.
7.03 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Purchase Closing Date, and
all documents incident thereto, shall be in form and substance reasonably
satisfactory to Buyer, and Buyer shall have received all such counterpart
original and certified or other copies of such documents as Buyer may reasonably
request.
7.04 The consents, waivers, approvals or other authorizations involved
in the transaction of this Agreement shall have been obtained by Seller or
otherwise satisfied and shall continue to be in effect, including all consents
of any competent Governmental Authority or, under any of the Ancillary Documents
or under other agreements to be entered into in connection herewith.
7.05 No Material Adverse Change. From the date of this Agreement until
the Purchase Closing Date, there shall not have been any Material Adverse Change
to the
financial condition and the assets of the Group Companies.
7.06 No Indebtedness. As of the Purchase Closing Date, the Seller will
have taken such action, or caused the Group Companies to take such action, and
provided to Buyer documentation satisfactory to Buyer, evidencing that none of
the Group Companies has any outstanding indebtedness of any kind, including
without limitation, any loan to Seller or Seller's Shareholder, bank loan or
credits or unpaid liability relating to the Acquisitions.
7.07 Share Transfer Agreement. Prior to the Purchase Closing Date,
both Sanwei Advertisement's shareholders (Zhang Qingyong and Xxxx Xxxxxxx) have
entered into Share Transfer Agreement with the company or individual appointed
by the Buyer in accordance with the form set forth in Exhibit 5.07, which
stipulates that Zhang Qingyong and Xxxx Xxxxxxx shall once in a time transfer
70% of the equity interest they held in Sanwei Advertisement to the company or
individual designated by the Buyer.
7.08 Prior to the Purchase Closing Date, Sanwei Advertisement has
repaid all loan borrowed from its shareholders and no Related Parties
Transaction exist between Sanwei Advertisement and its shareholders. The
definition of Related Parties Transactions is the same as defined in Section
5.09.
7.09 Prior to the Purchase Closing Date, Key Management shall execute
a Service Agreement, and each employees of the Group Company shall execute an
Employee Non-Compete Agreement in accordance with the form as set forth in
Exhibit 7.09, which agreement is in full force and effect.
7.10 Prior to the Purchase Closing Date, the Buyer shall have received
the audited financial statements of the Group Companies for the period from
January 2005 to June 2006, which shall be substantially complete in all material
respects and contain key financial data reasonably acceptable to Buyer.
7.11 Prior to the Purchase Closing Date: (1) cause the Company to
establish a wholly-foreign owned enterprise in Beijing (the issuance of the
Business License shall be deemed to be the completion of the establishment), in
which the Company holds all the equity of interest; (2) such wholly-foreign
owned enterprise, Sanwei and its shareholders shall entered into a series of
Controlling Agreements in accordance with the form set forth in Exhibit 5.06,
which is valid, bind and enforceable.
7.12 Seller's Corporate Documents. On or prior to the Purchase Closing
Date, each of the Seller Corporate Documents shall have been entered into and
consummated by the Seller and Seller's Shareholder and is in full force and
effect.
7.13 Management Appointment. Seller shall have authorized Buyer to
appoint the financial controller for the Company and the Group Companies.
7.14 Prior to the Purchase Closing Date, all the agreements and/or
contracts regarding the operation and distribution of Changchun Branch entered
by and between Sanwei Advertisement Changchun Branch and Xx. Xxx Sheng (the
director of Sanwei Advertisement Changchun Branch) shall be terminated; or
Changchun Branch shall be under the liquidation formalities in accordance with
the law. The potential legal risks of Sanwei Advertisement Changchun Branch
shall be eliminated.
7.15 Prior to the Purchase Closing Date, Shenzhen Yangshi Sanwei shall
become the subsidiary of Sanwei Advertisement, i.e. at least 90% equity interest
in Shenzhen Yangshi Sanwei shall be held by Sanwei Advertisement and the
remaining 10% equity interest in Shenzhen Yangshi Sanwei shall be held by the
Seller's Shareholder.
7.16 The Seller Parties has caused the Company to provide evidence
satisfactory to Buyer that the Group Companies' total liabilities, including
without limitation any debt, loan, other debts (potential dispute, unpaid taxes
due, etc.), shareholder loans and other account payable as of the Purchase
Closing Date shall not exceed the Group Companies' accounts receivable, cash,
inventory and pre-payments as of the same date.
7.17 Corporate Matters; Memorandum and Articles of Association.
On or prior to the Purchase Closing Date, Seller shall have provided
documentation to Buyer's reasonable satisfaction evidencing that (i) all shares
of Company are ordinary shares, (ii) all outstanding options (if any) of Company
have been cancelled, (iii) the memorandum and articles of association of Company
has been converted to a standard British Virgin Islands form (using the standard
form of Offshore Incorporations Limited) which has no preferred shares or
protective provisions for investors provided therein and filed and registered
with the British Virgin Islands Companies Registry.
7.18 Opinions of Counsel. As of the Purchase Closing Date, Buyer shall
have received from PRC counsel written opinions in form and substance
satisfactory to Buyer.
7. 19 Material Adverse Change. On or after the date hereof and prior
to the Purchase Closing Date, there shall not have occurred any of the
following: (A) a suspension or material limitation in trading in securities
generally on the NASDAQ National Market, (B) a suspension or material limitation
in trading in Buyer's securities on the NASDAQ National Market, (C) a general
moratorium on commercial banking activities in New York, the PRC or the British
Virgin Islands declared by the relevant authorities, or a material disruption in
commercial banking or securities settlement or clearance services in the United
States, the PRC or the British Virgin Islands, (D) the outbreak or escalation of
hostilities involving the United States, the PRC or the British Virgin Islands
or the declaration by the United States, the PRC or the British Virgin Islands
of a national emergency or war or (E) the occurrence of any other calamity or
crisis or any change in financial, political or economic conditions or currency
exchange rates or controls in the United States, the PRC, the British Virgin
Islands or elsewhere, if the effect of any such event specified in clause (D) or
(E) in the judgment of Buyer makes it impracticable or inadvisable to proceed
with the transaction contemplated in this Agreement and the Ancillary Documents.
7.20 Injunction. On the Purchase Closing Date, there shall not be in
effect any Law or Governmental Order directing that the transactions provided
for herein not be consummated as provided herein or which has the effect of
rendering it impossible to consummate such transactions.
ARTICLE VIII
TERMINATION
8.01 Termination. This Agreement may be terminated at any time prior
to
the Purchase Closing Date:
(a) by the mutual written consent of the Seller and the Buyer;
(b) by either the Seller or the Buyer if any Governmental Authority
of competent jurisdiction shall have issued an order, decree or
ruling or taken any other action restraining, enjoining or
otherwise prohibiting the transactions contemplated hereby and
such order, decree or ruling or other action shall have become
final and non-appealable;
(c) by Buyer, if Seller breach or fail to perform in any respect any
of their representations, warranties or covenants contained in
this Agreement or any Ancillary Document and such breach or
failure to perform (A) would give rise to the failure of a
condition set forth in Article VII; or (B) cannot be or has not
been cured within 15 business days following written notice of
such breach or failure to perform; and relevant claim rights have
not been waived by Buyer.
(d) by Seller, if Buyer breaches or fails to perform in any respect
any of its representation, warranties or covenants contained in
this Agreement or any Ancillary Document and such breach or
failure to perform (A) would give rise to the failure of a
condition set forth in Article VI, (B) cannot be or has not been
cured within 15 business days following written notice of such
breach or failure to perform; and relevant claim rights have not
been waived by Seller.
8.02 Procedure and Effect of Termination.
In the event of the termination of this Agreement and the abandonment
of the transactions contemplated hereby pursuant to Section 8.01 hereof, written
notice thereof shall forthwith be given to all other parties. If this Agreement
is terminated and the transactions contemplated by this Agreement are abandoned
as provided herein:
(a) The Buyer will redeliver to the Seller all documents, work papers
and other material of any the Seller relating to the transactions
contemplated hereby, whether so obtained before or after the
execution hereof;
(b) The provisions of the Confidentiality Agreements shall continue
in full force and effect; and,
(c) No party to this Agreement will have any liability under this
Agreement to any other except (i) that nothing herein shall
relieve any party from any liability for any willful breach of
any of the representations, warranties, covenants and agreements
set forth in this Agreement, and (ii) as contemplated by
paragraph (b) above.
8.03 Liquidated Damages.
During the period from the date of this Agreement to the Purchase
Closing Date, either the Seller or the Buyer terminating this Agreement
unilaterally with no reasonable excuse, or delaying the performance of its
obligations under this Agreement, which cause this Agreement unenforceable,
shall be responsible for paying the other party an amount of liquidated damages
as for USD 3 Million. Such liquidated damages shall be paid in the form of cash
or the shares of the listed company.
8.04 Force Majeure.
(a) If Force Majeure occurs in the period from the date of this
Agreement to the Purchase Closing Date, either party is entitled to terminate
this Agreement unilaterally without any liability of breach. The Force Majeure
expressed in this article shall cover all the events which lead to the
non-enforcement of this Agreement by either party. Such events, which cannot be
imputed to any party and are unforeseeable, unavoidable and insurmountable,
shall include but not limit to any strike, shutdown of the factory, explosion,
shipwreck, natural disasters or hostility, fire, flood, destruction, incidental
affairs, war, insurgence, rebellion, interruption of traffic or other similar
affairs and the promulgation of the relevant regulations regarding the movie
pre-film advertisement or the circular adopted by the State Administration of
Radio Film and Television, which render the initial business purpose of the
Group Company unrealizable or the daily business of the Group Company not being
normally operative.
(b) If Force Majeure occurs during the Purchase Closing Date and
August 31, 2009, and the Force Majeure renders the business of Group Company
being non-operative, the calculation of the Net Incomes of the relevant year
shall deduct the costs and the profits generated during the period of the Force
Majeure; at the same time, the deadline of the relevant accounting year shall be
accordingly extended. The period extended shall be as long as the period of the
Force Majeure. The Force Majeure expressed in this article shall refer to
strike, shutdown of the factory, explosion, shipwreck, natural disasters or
hostility, fire, flood, destruction, incidental affairs, war, insurgence,
rebellion, interruption of traffic or infective viral affairs.
ARTICLE IX
INDEMNIFICATION
9.01 Indemnification.
(a) Indemnification by the Seller and Seller's Shareholder
(i) Subject to the limits set forth in this Section 9.01, after
the Purchase Closing Date, the Seller agree to indemnify the Buyer, its
Affiliates (including, after the Purchase Closing Date, the Group Companies) and
its respective officers, directors, stockholders, employees, agents and
representatives (the "Buyer Indemnified Persons") harmless from and in respect
of any and all losses, damages, costs and reasonable expenses (collectively,
"Losses"). The Seller's aggregate liability for such Losses shall not exceed USD
2 Million, and the Seller shall at the same time return to the Buyer the Deposit
previously paid by the Buyer, provided, however, that where such Losses are the
result of the gross negligence or willful misconduct of any of the Key
Management, the aggregate liability of the such Losses shall not exceed the
Value of the
Aggregate Consideration paid by the Buyer. The representations and warranties of
the Seller set forth in Article III of this Agreement shall survive for a period
of three (3) years immediately following the Purchase Closing Date (the
"Indemnity Period").
(ii) Subject to the limits set forth in this Section 9.01, after
the Purchase Closing Date, the Seller's Shareholders agree to indemnify the
Buyer Indemnified Persons harmless from and in respect of any and all Losses
that they may incur arising out of or due to any breach any of the
representations or warranties of Article III, provided, however that Seller's
Shareholder liability for such Losses shall in no event exceed USD 2 Million and
shall at the same time return to the Buyer the Deposit previously paid by the
Buyer. The representations and warranties of the Seller's Shareholders set forth
in Article III of this Agreement shall survive for the Indemnity Period.
(b) Indemnification by the Buyer.
Subject to the limits set forth in this Section 9.01, after the
Purchase Closing Date, Buyer agrees to indemnify the Seller and its Affiliates
and its respective officers, directors, stockholders, employees, agents and
representatives (the "Seller Indemnified Persons") harmless from and in respect
of any and all losses, damages, costs and reasonable expenses (collectively,
"Losses"), provided, however, that the Losses that Seller may obtain in
accordance with the section hereof shall not exceed USD 2 Million, unless
otherwise agreed in this Agreement. The representations and warranties of the
Buyer set forth in Article IV of this Agreement shall survive for a period of
six (6) months immediately following the Purchase Closing Date.
(c) Indemnification as Exclusive Remedy
The indemnification provided in this Section 9.01, subject to the
limitations set forth herein, shall be the exclusive remedy available to any
party in connection with any Losses arising out of or resulting from this
Agreement, the transactions contemplated hereby, any property owned, based or
subleased by any of the Group Companies or otherwise regarding any of the Group
Companies.
(d) Notice and Opportunity to Defend
If there occurs an event which a party asserts is an indemnifiable
event pursuant to Section 9.01, the party or parties seeking indemnification
shall notify the other party or parties obligated to provide indemnification
(the "Indemnifying Party") promptly. If such event involves any claim or the
commencement of any action or proceeding by a third person, the party seeking
indemnification will give such Indemnifying Party prompt written notice of such
claim or the commencement of such action or proceeding; provided, however, that
the failure to provide prompt notice as provided herein will relieve the
Indemnifying Party of its obligations hereunder only to the extent that such
failure prejudices the Indemnifying Party hereunder. In case any such action
shall be brought against any party seeking indemnification and it shall notify
the Indemnifying Party of the commencement thereof, the Indemnifying Party shall
be entitled to assume the defense thereof, with counsel selected by the
Indemnifying Party and, after notice from the Indemnifying Party to such party
or parties seeking
indemnification of such election so to assume the defense thereof, the
Indemnifying Party shall not be liable to the party or parties seeking
indemnification hereunder for any legal expenses of other counsel or any other
expenses subsequently incurred by such party or parties in connection with the
defense thereof. The Indemnifying Party and the party seeking indemnification
agree to cooperate fully with each other and their respective counsel in
connection with the defense, negotiation or settlement of any such action or
asserted liability. In no event shall an Indemnifying Party be liable for any
settlement effected without its written consent.
ARTICLE X
MISCELLANEOUS
10.01 Notices. Any notice, demand, or communication required or
permitted to be given by any provision of this Agreement shall be deemed to have
been sufficiently given or served for all purposes if (i) personally delivered,
(ii) sent by a nationally recognized overnight courier service to the recipient
at the address below indicated or (iii) delivered by facsimile which is
confirmed in writing by sending a copy of such facsimile to the recipient
thereof pursuant to clause (i) or (ii) above:
If to the Seller:
EFG PARTNERS LIMITED
Add: 3-32A, Xx.00, Xxxx Xxxx Xxx Xx, Xxxxxxxx Xxxxxxxx, Xxxxxxx
Attn: Zhang Qingyong
Tax: 010-84898825-111; 13601119996
Fax: 000-00000000-000
If to the Buyer:
FOCUS MEDIA HOLDING LIMITED
Add: Xxxxx 00, Xx. 000 Xxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxx,
Xxxxxxxx,
Attn: Xxxxx Xxxxxxx Xxxxx
Tel: 000-00000000
Fax: 000-00000000
If to the Company:
APPRECIATE CAPITAL LTD
Add: 3-32A, Xx.00, Xxxx Xxxx Xxx Xx, Xxxxxxxx Xxxxxxxx, Xxxxxxx
Attn: Zhang Qingyong
Tax: 010-84898825-111; 13601119996
Fax: 000-00000000-000
If to any of the Seller's Shareholder:
Add: 3-32A, Xx.00, Xxxx Xxxx Xxx Xx, Xxxxxxxx Xxxxxxxx, Xxxxxxx
Attn: Zhang Qingyong
Tax: 010-84898825-111; 13601119996
Fax: 000-00000000-000
or to such other address as any party hereto may, from time to time, designate
in a written notice given in like manner.
10.02 Fees and Expenses. The Seller, the Seller's Shareholders and the
Buyer shall bear their own taxes and government's charges which in connection
with this Agreement or the transaction herein respectively. Attorney fees and
audit fees in connection with the transaction herein shall be born by the
Seller, which shall not exceed RMB 300,000 (such attorney fees and audit fees
shall be paid to the law firms and audit firms with 15 business days after the
Purchase Closing Date). The part exceed RMB 300,000 shall be born by the Buyer.
10.03 Governing Law. This Agreement shall be construed under and
governed by the Laws of Hong Kong Special Administration Region.
10.04 Dispute Resolution.
(a) Any dispute, controversy or claim arising out of or relating to
this Agreement, or the interpretation, breach, termination or validity hereof,
shall be resolved through consultation. Such consultation shall begin
immediately after one party hereto has delivered to any other party hereto a
written request for such consultation.
(b) If within 90 days following the date on which such notice is given
the dispute cannot be resolved, the dispute shall be submitted to arbitration
upon the request of either party with notice to the other. The arbitration shall
be conducted in Hong Kong under the auspices of the Hong Kong International
Arbitration Centre (the " HKIAC").
(c) The arbitration tribunal shall consist of three arbitrators. Each
opposing party to a dispute shall be entitled to appoint one arbitrator, and the
third arbitrator shall be jointly appointed by the other appointed arbitrators.
The third arbitrator shall be the chief arbitrator.
(d) The arbitration proceedings shall be conducted in English and
Chinese. The award of the arbitration tribunal shall be final and binding upon
the disputing parties. Either party shall be entitled to seek preliminary
injunctive relief from any court of competent jurisdiction pending the
constitution of the arbitral tribunal. And the prevailing party may apply to the
arbitration tribunal for recovering all the expenses (including reasonable
attorney fees and other arbitration costs).
10.05 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
10.06 Amendment. This Agreement may not be amended, modified or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
10.07 Waiver. Any of the terms or conditions of this Agreement which
may be lawfully waived may be waived in writing at any time by each party which
is entitled to the benefits thereof. Any waiver of any of the provisions of this
Agreement by any party hereto shall be binding only if set forth in an
instrument in writing signed on behalf of such party. No failure to enforce any
provision of this Agreement shall be deemed to or shall constitute a waiver of
such provision and no waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
10.08 Assignment. No Party may assign its rights or obligations under
this Agreement without the prior written consent of each other party and any
purported assignment without such consent shall be void and without effect.
10.09 Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the transaction hereof and thereof
and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the transaction hereof and thereof.
10.10 Further Assurances. Each Party shall execute all such documents
and do all such Other things within its power as may be required to give full
effect to the terms of this Agreement or to vest in any other Party its full
rights and entitlements hereunder.
10.11 Provisions Severable. If any provision of this Agreement is held
to be illegal, invalid Or unenforceable under any present or future law, (i)
such provision will be fully severable, (ii) this Agreement will be construed
and enforced as if such illegal, invalid or enforceable provision had never
comprised a part hereof, and (iii) the remaining provisions of this Agreement
will remain in full force and effect and will not be affected by the illegal,
invalid and unenforceable provision or by its severance herefrom, it being
intended that the rights of the Parties hereunder shall be enforceable to the
fullest extent permitted by law.
10.12 Provisions Modifiable. If any restriction on any Party hereunder
shall be adjudged to be void or unenforceable because it exceeds what is
reasonable in all the circumstances for the protection of the interests of the
Parties or any of them but would be valid if part of the wording thereof were
deleted or the periods thereof reduced or range of activities or area dealt with
thereby reduced in scope, such restriction shall apply with such modifications
as may be necessary to make it valid and effective.
10.13 Headings. The headings contained in this Agreement are for
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
10.14 Language. This Agreement was written in Chinese.
[THE REST IS LEFT BLANK]
[EXECUTION PAGE]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in each case as of the date first above written.
EFG PARTNERS LIMITED FOCUS MEDIA HOLDING LIMITED
Sign: /s/ Zhang Qingyong Sign: /s/ Xxxxx Nanchung Jiang
------------------------------- ----------------------------------
Name: Zhang Qingyong Name: Xxxxx Xxxxxxx Xxxxx
Post: Executive Director Post: Chairman
APPRECIATE CAPITAL LTD. SELLER'S SHAREHOLDER
Sign: /s/ Zhang Qingyong Sign: /s/ Zhang Qingyong
------------------------------- ----------------------------------
Name: Zhang Xxxxxxxx Xxxxx Qingyong
Post: Executive Director
Sign: /s/ Xxxx Xxxxxxx
----------------------------------
Xxxx Xxxxxxx
SCHEDULES
Schedule 1.1 List of the Member of Group Company
Schedule 1.5 Controlling Agreements
Schedule 1.6 Ancillary Document
Schedule 3.04 Share Capital of Company
Schedule 3.05 Group Companies Information
Schedule 3.09 List of Group Companies' Licenses, Consents, Authorizations,
Approvals, and Permits
Schedule 3.17 Material Contracts
EXHIBITS
Exhibit 5.06 Form of Controlling Agreement
Exhibit 5.07 Form of Share Transfer Agreement
Exhibit 7.09 Form of Service Agreement and Employee Non-Compete Agreement
