Exhibit 4.30
[Translated from the Chinese original]
SHARE TRANSFER AGREEMENT
OF
SHANGHAI MEINING COMPUTER SOFTWARE COMPANY LIMITED
[SHANGHAI XXXXX XXXXX TELECOMMUNICATION EQUIPMENT CO. LTD.]
[XXXX XXX]
[XXX XXXX]
As the Transferors
AND
[BEIJING FUHUA INNOVATION TECHNOLOGY DEVELOPMENT CO., LTD.]
As the Transferee
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TABLE OF CONTENTS
1. DEFINITION AND INTERPRETATION 2
2. SHARE TRANSFER 3
3. PURCHASE PRICE AND XXXXXXX MONEY 3
4. DUE DILIGENCE 4
5. PREREQUISITES TO COMPLETION 5
6. COMPLETION 8
7. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS 9
8. FAILURE OF COMPLETION 10
9. EFFECTIVENESS 10
10. BREACH OF THIS SHARE TRANSFER AGREEMENT 11
11. CONFIDENTIALITY 11
12. DISPUTE RESOLUTION 12
13. NOTICE AND SERVICE 12
14. MISCELLANEOUS PROVISIONS 14
APPENDIX 1-1: REPRESENTATIONS AND WARRANTIES OF THE TRANSFERORS 15
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The following parties enter into this share transfer agreement, (the "Share
Transfer Agreement") effective as of August 15, 2006:
PARTY A: SHANGHAI XXXXX XXXXX TELECOMMUNICATION EQUIPMENT CO. LTD.
Registered Address: Xxxx 000, Xx.00 Xxxxx Xxxx, Xxxxxxxx
Legal Representative: Ju Chengli
PARTY B: XXXX XXX
I.D. NO.:
PARTY C: XXX XXXX
I.D. NO.:
(Party A, Party B, and Party C are hereinafter referred to collectively as the
"Transferors");
PARTY D: [BEIJING FUHUA INNOVATION TECHNOLOGY DEVELOPMENT CO., LTD.]
Registered Address: Xxxx 000, Ping'an Mansion, Xx. 00 Xxxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx
Legal Representative: Xxxx Xx
(Party D hereinafter is also referred to as the "Transferee");
SECURITY PARTY: CHINA FINANCE ONLINE (BEIJING) CO., LTD.
Registered Address: Xxxx 000X, Ping'an Mansion, Xx. 00 Xxxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx
Legal Representative: Xxxx Xxxxxx
Either party of the Transferors and the Transferee is referred to hereunder as
the "Party", or collectively referred to as the "Parties."
WHEREAS
A. Shanghai Meining Computer Software Company Limited (hereinafter
referred to as the "Company") is a limited liability company duly
organized and validly existing under the laws of People's Republic of
China, with legal address at: [Building 15, Xx.000, Xxxx Xxxx,
Xxxxxxxx, Xxxxx]. The Registered Capital of the Company is [RMB
11,646,300].
B. The Transferors are shareholders who hold 100% of the shares of the
Company. Party A holds [70.64]% shares of the Company; Party B holds
[24.36]% shares of the Company; and Party C holds [5]% shares of the
Company. They have contributed their due investments in full.
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C. The Transferors are intended to transfer, and the Transferee is
intended to receive 100% of the shares of the Company.
D. Therefore, the Parties hereby agree to transfer the shares to the
Transferee in accordance with the terms and conditions specified in
this Share Transfer Agreement.
1. DEFINITION AND INTERPRETATION
The following terms shall have the meanings set forth below:
"ARTICLES OF ASSOCIATION" means the revised articles of association of the
Company. The Articles of Association reflect the provisions of this Share
Transfer Agreement which the Transferors and the Transferee will enter
into.
"COMPANY" means Shanghai Meining Computer Software Company Limited.
"COMPLETION DAY" means the completion day specified in Article 6.1 hereof.
"COMPLETION TERM" means the completion term specified in Article 6.1
hereof.
"CREDITOR'S RIGHTS OF SHANGHAI TELECOM" means the debt of RMB 850,381.95 to
be paid to Shanghai Telecom or Shanghai Telecom Company of China Telecom
(hereinafter referred to as "Shanghai Telecom"), as disclosed by the
balance sheet of Zhengxing Information Technology Co., Ltd, dated December
31, 2005, and audited by Shanghai Jiangnan Accountant firm.
"DEBT OWED BY HUANING TO MEINING" means the Creditor's Right to receive RMB
332,523, under the due received amount ended at the date of May 31, 2006,
to the benefit of the Company against its former shareholder Shanghai
Huaning Information Technology Co., Ltd., in accordance with the balance
sheet and its attachments in Appendix 2.
"EFFECTIVE DATE" means August 15, 2006.
"LOANS FROM MINGHONG" means the shareholder loan provided by Shanghai
Minghong Information Technology Co., Ltd., to the Company, as the former
shareholder of the Company. The balance of the loan is RMB 1,110,600 as
disclosed by the Company's balance sheet dated May 31, 2006.
"PURCHASE PRICE" means the purchase price paid by the Transferee to the
Transferors in accordance with Article 3.1 hereof.
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"REGISTERED CAPITAL" means the registered capital of the Company,
equivalent to [RMB 11,646,300 yuan]
"SECURITY PARTY" means China Finance Online (Beijing) Co., Ltd. The
security party has joint liability under the payment obligation hereunder
towards the Transferors, and the warrantor shall not have a defense against
this.
"SHAREHOLDER LOANS OF PARTY A" means the shareholder loans of RMB 3,400,000
provided to the Company by Party A, as the shareholder of the Company,
including:
1. A promissory note totaling RMB 2 million issued to the Company by
the Shanghai Branch of China Construction Bank (the "Bank") from
Party A, and transferred to the Company's account on November 1,
2005. The promissory note and Bank pay-in slip are attached as
Appendix 3.
2. The actual loan provided by Party A to the Company totaling RMB
1.4 million, in accordance with the loan agreement entered into
with the Company on February 21, 2006. The loan agreement and
Bank pay-in slip are attached as Appendix 3.
1.1 Interpretation
The headings are for the purpose of convenience and reference only, and
shall not affect the interpretation and understanding of this Share
Transfer Agreement.
2. SHARE TRANSFER
2.1 The Transferors hereby sell and transfer to the Transferee, and the
Transferee hereby purchases and accepts from the Transferors 100% of the
shares of the Company.
2.2 Upon the Completion Date when the shares are transferred, the Transferee
shall become the sole shareholder of the Company, with all the rights and
obligations of a shareholder in accordance with the Articles of
Association.
3. PURCHASE PRICE AND XXXXXXX MONEY
3.1 The Parties agree the Purchase Price is XXX [00 million], in which the
Transferee shall pay RMB 8,476,800 to Party A, RMB 2,923,200 to Party B,
and RMB 600,000 to Party C.
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3.2 The Transferee shall pay the xxxxxxx money for purchase of RMB [847,680] to
Party A, RMB [292,320] to Party B, and RMB [60,000] to Party C within three
days of the execution of this Share Transfer Agreement.
3.3 Unless the Completion of this Share Transfer Agreement fails, the Purchase
Price shall be paid by the Transferee to the bank accounts designated by
the Transferors in writing at the Completion Day. The Purchase Price may be
set off by the paid xxxxxxx money as specified in Article 3.2. If the
Transferee has made the aforesaid payment to the Transferors, in accordance
with this article, the payment obligation of the Transferee under Article
3.1 hereof is deemed to have been performed.
3.4 Party A, Party B, Party C, Party D and the Company shall respectively pay
for their taxes and expenses incurred from the transfer in accordance with
laws and regulations.
4. DUE DILIGENCE
4.1 To ensure the Transferee understands of the Company's state of affairs for
the purchase of shares, the Transferee is entitled to carry out due
diligence on the Company upon the execution of this Share Transfer
Agreement. The information which must be investigated and checked includes
but is not limited to:
(1) the Company's subject capacity, status of operation and
registration at industrial and commerce authorities;
(2) the Company's status of assets;
(3) the Company's financial status;
(4) employees of the Company;
(5) the Company's labor and personnel system and management;
(6) the Company's taxation and law compliance;
(7) the effective contracts concluded by the Company and performance;
(8) economic disputes, client disputes, litigation and arbitration of
the Company;
(9) securities or material obligations borne by the Company for the
outside entities; and
(10) other corporate information of the Company the Transferee
considers necessary to know.
4.2 The Transferors will actively assist and cooperate with the Transferee to
carry out the aforesaid due diligence, offer and disclose all detailed
information to the Transferee, and allow a specially designated person
(corporate key management staff whose title is higher than deputy general
manager) to coordinate the investigation work, ensuring the Transferee may
carry out the due diligence as soon as possible.
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4.3 The fact that the Transferee is carrying out the due diligence in
accordance with this Share Transfer Agreement shall not absolve the
Transferors of all the obligations and liabilities under the
representations and warranties made by the Transferors herein.
5. PREREQUISITES TO COMPLETION
The Transferee's performance of the Completion obligations hereunder shall
be subject to the satisfaction of the following prerequisites prior to or on the
Completion Day:
5.1 From the execution date of the agreement to the relevant Completion Day,
the representations, warranties and undertakings made by the Transferors
herein are true, adequate and accurate. The Transferors make no misleading
or false representations of fact herein. No risk exists that may cause the
Transferee or the Company to be subject to legal proceedings or disputes
due to the transfer hereunder, nor is there any material adverse effect on
the Transferee or the Company.
5.2 For the purpose of such shares transfer and change of shareholders of the
Company, the Transferors shall, within [45] business days after the
execution of the agreement, provide all necessary support, execute all
relevant legal documents, perform all necessary procedures, and obtain all
necessary approvals, in accordance with relevant laws and Articles of
Association, including but not limited to, registering such shares transfer
with industrial and commerce administration authorities, unless the failure
to complete the registration of such transfer with the industrial and
commerce administration authorities within the aforesaid term is caused by
reasons of the Transferee or other objective reasons of Parties other than
the Transferors.
5.3 No event, circumstance, change or material adverse turn which has had or
could reasonably be expected to have a material adverse change on the
performance of this Share Transfer Agreement or the benefit of the
Transferee has occurred prior to the execution of this Share Transfer
Agreement.
5.4 Material information, obligations, and liabilities borne by the Company in
connection with the transfer hereunder have been disclosed adequately to
the Transferee, and the disclosure is accurate, adequate and true.
5.5 The Loan from Minghong is repaid prior to the Completion Day.
5.6 Meining has signed waiver of Creditor's Rights for the Debt Owed by Huaning
to Meining.
5.7 The Company has concluded the Strategic Consultation Service Agreement
("Appendix 4-1") and Technology Support Service Agreement ("Appendix 4-2")
with
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Zhengxing Information Technology Co., Ltd. (hereinafter referred to
"Shanghai Zhengxing"). Such agreements are continual and effective, and the
Company is obliged to pay the consultation service fees to Shanghai
Zhengxing in accordance with such agreements.
5.8 For the purpose of the payment of the aforesaid consultation service fees,
the Transferors have executed the Share Pledge Agreement ("Appendix 5-1")
and Purchase Option Agreement ("Appendix 5-2") with Shanghai Zhengxing.
Such agreements are continual and effective.
5.9 The Transferors and their affiliated companies, including but not limited
to Shanghai Lianchuang Venture Capital Co., Ltd., Shanghai Minghong
Information Technology Co., Ltd, Shanghai Stateline Telecom, Shanghai
Stateline Network Co., Ltd, Stateline SCM Co. Ltd. Shanghai, have issued an
irrevocable written statement waiving all of their Creditor's Rights to the
Company except for, or including, the shareholder loans of Party A
("Appendix 6 (1-5)").
5.10 The IDC custodian fee owed by the affiliated companies of the Transferors,
Shanghai Minghong Information Technology Co., Ltd and Stateline SCM Co.
Ltd. Shanghai has been paid to Meining Company.
5.11 If some of the debts owed to Meining, as specified in Article 5.10, are not
paid in full prior to the Completion Day, the Transferors shall issue a
written confirmation letter to the Transferee consenting to the deduction
of the amount equivalent to the unpaid debt from the purchase price.
5.12 The payment for the debt specified in Appendix 2 "Balance Sheet" by the
relevant payees upon the execution of this Share Transfer Agreement, shall
be reserved in the bank account of the Company, except for those amounts
approved by the Transferee in writing.
5.13 The Company has executed the relevant agreement to transfer the
xxx.xxxxxxxxx.xxx and xxx.xxxxxxxxx.xxx.xx websites (set forth in Appendix
7-1) and the brand of "Stockstar" ("Appendix 7-2") to Shanghai Zhengxing at
the price of RMB 1 yuan respectively.
5.14 Party A has made securities as to the Creditor's Rights of Shanghai Telecom
("Appendix 8").
5.15 The creditors Xx Xxxxxxx, Xxx Xxxxx and Shanghai Minghong Information
Technology Co., Ltd., and Shanghai Minghong Information Technology Co.,
Ltd., as defined by the Company's account books, of the promissory note in
the amount of
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RMB 3.18 million, whose issuer is not known, but was received by the
Company on May 14, 2002, have issued a letter to acknowledge their
non-possession of or waiver of any creditor's right ("Appendix 9-1"). Party
A shall issue a letter of security ("Appendix 9-2") to the Transferee, to
warrant that the creditors Xx Xxxxxxx, Xxx Xxxxx and Shanghai Minghong
Information Technology Co., Ltd., are the true creditors of the debt of the
Company in connection with the aforesaid promissory note. If it is
discovered in the future that Xx Xxxxxxx, Xxx Xxxxx and Shanghai Minghong
Information Technology Co., Ltd. are not the true creditors for the
aforesaid debt, such debt shall be borne by Party A, and Party A shall
compensate any and all losses suffered by the Company or the Transferee
from such circumstance.
5.16 As to the promissory note (RMB 2.351 million, issuer of which is unknown)
received by the Company on November 22, 2001, the creditors as shown by the
account books of the Company is Dongyang Building Materials Co. Ltd. in
Zhejiang Province. Party A shall issue a letter of security ("Appendix 10")
to the Transferee and the Company, to warrant the creditors, Dongyang
Building Materials Co. Ltd. is the true creditor of the debt of the Company
in connection with the aforesaid promissory note. If it is discovered in
future Dongyang Building Materials Co. Ltd. is not the true creditor for
the aforesaid debt, Party A shall compensate any and all losses suffered by
the Company or the Transferee from such circumstance.
5.17 The Website Alliance Market Promotion Cooperation Agreement ("Promotion
Agreement") concluded between Shanghai Daodun Network Technology Co., Ltd.
("Daodun Company") and the Company dated January 9, 2006, has been
terminated on July 3, 2006. Party A shall issue a letter of security to the
Transferee, to warrant the aforesaid agreement has been legally terminated,
and the Creditor's Rights and debts of both parties under the promotion
agreement have been cleared. No legal disputes, claims, lawsuits or
threatened lawsuits are incurred from such promotion agreement. Party A
shall be liable for any legal dispute, claim, lawsuit or threatened lawsuit
incurred from such agreement, and compensate all losses suffered by the
Company and the Transferee from this. The promotion agreement and the
letter of security as to the termination of such agreement are attached
hereto as Appendix 11.
5.18 From the execution of the agreement to the completion day, the Transferors
shall guarantee the normal operation of the Company in aspects of products
and services, and team work, and shall provide to the Transferee the
following documents:
(A) staff list of department managers and those with titles
higher than department managers; and
(B) Labor Contracts signed by department managers and those with
titles higher than department managers ("Appendix 12").
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5.19 The Transferors controlled companies have obtained written consent from the
Transferee prior to taking the following actions:
(A) Any fund transfer with aggregated amount exceeding RMB
50,000 with a Company or natural person and its affiliated
party; execution of any agreement;
(B) appointment and disposal of department managers and those
with titles higher than department managers;
(C) dividends distribution;
(D) change of employee reward (including bonus) plans;
(E) issues of operation cooperation; and
(F) development and launching plan of new products.
5.20 Party A have made securities as to Share Transfer Agreement of Zhengxing
Information Technology (Shanghai) Co., Ltd. concluded between Xxxxxxxxx.xxx
INC and China Finance Online (Beijing) Co., Ltd. dated August 15, 2006
(attached as "Appendix 13").
5.21 The Transferors have performed all other obligations in connection with the
transaction specified herein at the date of completion day.
6. COMPLETION
6.1 Completion
"Completion" in the agreement means the parties complete the transfer
hereunder in accordance with Article 6 herein. The parties agree and affirm
that the "completion day" is the day at which all registration procedures
of the shares transfer hereunder are completed at the industrial and
commerce administration authorities. "Completion" shall take place at the
office of the Company or other places agreed by the parties.
6.2 Obligations of the Transferors
The Transferors shall deliver the following documents to the Transferee at
the Completion:
(1) Board resolution (if applicable) of the Transferors, to authorize the
Transferors to execute, deliver and perform the agreement;
(2) All originals of Business License of Enterprise Legal Person renewed
by industrial and commerce administration based on the shares
transfer;
(3) All prerequisites to completion specified in Article 5 herein required
by the Transferee are satisfied by the Transferors.
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(4) Official Seal, financial seal and all other seals of the Company.
6.3 Obligations of the Transferee
The Transferee shall deliver the following documents to the Transferors at
the completion:
(1) Board resolution of the Transferee, to authorize the Transferee to
execute, deliver and perform the agreement; and
(2) the purchase price specified in Article 3.
The Transferee agrees to be transferred the shareholder loan of Party A to
the Company equivalent to RMB 3.40 million with a consideration of RMB 3.40
million at the completion day. For this purpose, the Transferors Party A
shall conclude a Creditor's Right Transfer Agreement with the Transferee
("Appendix 14").
7. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
7.1 The Transferors make irrevocable representations and warranties to the
Transferee as specified in Appendix 1 (1-2).
7.2 The representations made by the Transferors herein are true, accurate and
adequate and contain no concealed or misleading content. Any debt,
obligation or liability discovered after completion, which failed to be
disclosed to the Transferee by the Transferors, or failed to get approval
from the Transferee, shall be borne jointly by the Transferors.
7.3 If any of the representations or warranties of the article are not true,
accurate or adequate, the Transferors shall have joint compensation
liability to the Transferee for any loss, damage, expense or adverse
condition (which will not occur if the relevant representation or warranty
is true or accurate) in any kind suffered by the Transferee.
7.4 The Transferee undertakes that it will make timely and full payment to the
Transferors for the purchase price of the shares in accordance with payment
schedule specified in the agreement.
7.5 The Transferee undertakes the execution and performance of the agreement
make no violation of other contracts, agreement and legal documents to
which the Transferee is one party.
7.6 The Transferee complies with the conditions stipulated by laws to be
transferred the subject of the agreement prior to making registration of
the share transfer at industry and commerce administration, and will not
affect the normal legal procedures of the share transfer due to the
restrictions of the Transferee itself.
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7.7 The Transferee warrants that it will actively go through all the procedures
necessary for the share transfer, and perform all required obligations as
the Transferee of the shares.
8. FAILURE OF COMPLETION
8.1 If the shares hereunder for any reason fail to complete the registration of
transfer at industrial and commerce administration in accordance with this
Share Transfer Agreement, except as otherwise provided by the Parties, this
Share Transfer Agreement will be cancelled accordingly.
8.2 If the shares hereunder fail to complete the transfer in accordance with
this Share Transfer Agreement for none of the reasons of the Transferors
and the Transferee (including but not limited to failure to get approval
from government in accordance with relevant laws and regulations), the
Transferors shall refund all the payment the Transferee made to the
Transferors in accordance with this Share Transfer Agreement (including the
Xxxxxxx Money for purchase), to the Transferee within 7 days after the day
of receiving the written Notice from the Transferee. The Transferee shall
return all the documents provided by the Transferors to the Transferee in
accordance with this Share Transfer Agreement, to the Transferors within 7
days after receiving the written Notice from the Transferors.
8.3 If the failure to complete the share transfer in accordance with this Share
Transfer Agreement is due to the Transferors' account, the Transferors
shall refund in double the charged xxxxxxx money to the Transferee in
accordance with this Share Transfer Agreement.
8.4 If the aforesaid failure of Completion is due to the Transferee's account,
the Transferors are entitled to forfeit the xxxxxxx money paid by the
Transferee in accordance with this Share Transfer Agreement.
8.5 If the Completion is failed after the registration of the transfer at
industrial and commerce administration, both parties are obliged to return
the shares hereunder to the former holding status before the execution of
this Share Transfer Agreement.
9. EFFECTIVENESS
9.1 The agreement shall be effective from the date of execution by the parties
("Effective Date").
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10. BREACH OF THE AGREEMENT
10.1 Failure of performance, partial or delayed performance of any obligations
borne by any party hereof shall constitute a breach of the Share Transfer
Agreement, and such party shall bear the liability for breach of the Share
Transfer Agreement, and is liable for compensating all economic losses
suffered by other parties from such breach. Unless otherwise provided in
the Share Transfer Agreement, if any party breaches the Share Transfer
Agreement or if the representations, undertakings or warranties made
hereunder by any party are false, and such party fails to make effective
remedies within ten (10) days (or longer time as approved by the
non-breaching party in writing) after receiving the written Notice from the
non-breaching party, the non-breaching party is entitled to terminate the
agreement immediately and unilaterally, and the breaching party shall
compensate the non-breaching party for all losses suffered by the
non-breaching party from such breach.
10.2 For the purpose of the Share Transfer Agreement, the parties agree and
affirm that, for any breach hereunder by any party of the Transferors, all
parties of the Transferors shall have joint liability for any applicable
compensation due in the event of a breach. The Transferee is entitled to
make claims against any party of the Transferors at its own discretion, and
is free from restrictions of any conditions or prerequisite procedures. Any
party of the Transferors shall not have a defense against this.
10.3 If the Transferee fails to pay for the Xxxxxxx Money to the Transferors in
accordance with Article 3 herein, or fails to pay for the purchase price to
the Transferors in accordance with the Share Transfer Agreement, or fails
to pay to Party A for the transferred Creditor's Rights as specified in
Item 3, Article 6.3 herein, the Transferee shall pay to the Transferors a
fine amounting to 0.1% of the overdue amount per day from the tenth day of
such breach. If such breach exceeds [20] days, the Transferors have the
right to terminate the agreement, in addition the Transferee shall pay to
the Transferors a fine amounting to 5.0% of the total price of the
agreement.
11. CONFIDENTIALITY
11.1 Whether or not the Share Transfer Agreement is terminated, the parties
hereof shall make strict confidentiality of the trade secret and
proprietary information of the other party or the Company (hereinafter
collectively referred to as "Confidential Information") received during the
performance of the Share Transfer Agreement. Except those having to be
disclosed to a third party upon prior written consent from the other party
or in accordance with relevant laws and regulations, the party receiving
the Confidential Information shall not disclose to any other third party
the Confidential Information or any part of it; except for the purpose of
the performance
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of the Share Transfer Agreement, the receiving party shall not use or
indirectly use the Confidential Information or any part of it.
11.2 The following information is not regarded as Confidential Information: (a)
any information which the receiving party has written evidence to prove it
has obtained such information prior to receiving it in connection with the
Share Transfer Agreement; (b) any information which has been publicized not
resulted from faults of the receiving party, or information which are known
to the public for other reasons; or (c) information the receiving party
legally obtained from other channels thereafter.
11.3 The information receiving party may disclose the Confidential Information
to its relevant employees, agencies, or professionals invited, but such
party shall ensure the aforesaid persons are also bound by this Share
Transfer Agreement, and keep the Confidential Information as confidential,
and use the Confidential Information for the sole purpose of the
performance of this Share Transfer Agreement.
12. DISPUTE RESOLUTION
12.1 Any dispute arising from the interpretation or exercise of this Share
Transfer Agreement, shall be settled though friendly consultation by the
parties first.
12.2 If a dispute is not settled by the aforesaid way within sixty (60) days
after the beginning of consultation, any party may submit the dispute to
China International Economic and Trade Arbitration Committee in Beijing for
final arbitration in accordance with the arbitration procedures and rules
currently in force.
12.3 The arbitration shall be made by three (3) arbitrators. The Transferors and
the Transferee shall appoint one (1) arbitrator each. The third arbitrator
shall be designated by the arbitration committee, and serve as chairman of
the arbitration court.
12.4 The arbitration award shall be final and binding the parties. The liability
for the payment of arbitration fee shall be judged by the arbitration
court.
13. NOTICE AND SERVICE
Any Notices or other correspondences among the parties in connection with the
Share Transfer Agreement (hereinafter referred to as "Notice") shall be in
written form (including delivered by hand, by post, by fax or by telegraph), and
delivered to the addressee at the following addresses or numbers, and the names
of the following contact persons shall be noted. Only all the aforesaid
conditions are satisfied, a Notice shall be deemed as an effective Notice.
Party A: Shanghai Xxxxx Xxxxx Telecommunication Equipment Co. Ltd.
Contact Person: Ju Chengli
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Address: Xxxxxxxx 00, Xx. 000, Xxxx Xxxx, Xxxxxxxx
Postal Code: 200031
Tel: 000-00000000
Fax: 000-00000000
EMAIL: xxx@xxx.xxx.xx
Party B: Xxxx Xxx
Address: Shanghai Lianchuang Venture Capital Co., Ltd, Xingguo Hotel, Xx. 00,
Xxxxxxx Xxxx, Xxxxxxxx
Postal Code: 200052
Tel: 000-00000000
Fax: 000-00000000
EMAIL: xxxxxx@xxxxxxxx.xxx
Party C: Xxx Xxxx
Address:
Postal Code:
Tel: 00000000000
Fax:
EMAIL: Xxxx.Xxx@xxxxxxxx.xxx
Party D: BEIJING FUHUA INNOVATION TECHNOLOGY DEVELOPMENT CO., LTD.
Contact Person: Xxxx Xxx
Address: Floor 9, Tower C, Corporate Square, Xx. 00 Xxxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx, Xxxxx
Postal Code: 100032
Tel: 000-00000000
Fax: 000-00000000
EMAIL: xxxxx@xxx.xxx
The Notices hereunder shall be deemed to have been effectively given on
following: (1) any Notices delivered by hand shall be deemed to have been
effectively served on the date of the confirmation of the addressee. Notices
without confirmation of the addressee shall not be deemed as effectively served;
(2) any Notices delivered by post shall use registered express or courier
service, and shall be deemed to have been effectively served to the addressee on
the 48 hours after they were sent out (deferred accordingly if there are public
holidays); (3) Notices delivered by fax shall be deemed to have been effectively
given on the date of transmission and upon confirmation. However, if the Notice
is sent out on a public holiday, the Notice shall be deemed to have been
effectively served on the first day after the ending of the public holiday; (4)
any Notices sent though telegraph shall be deemed to have been effectively
served on 24 hours after they were sent out (deferred accordingly if there are
pubic holidays).
If any changes are made as to the correspondence address, number or contact
person by any party, such party shall notify other parties within 7 days after
the change; otherwise the Notices addressed to the former correspondence shall
be deemed as effective Notice.
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14. MISCELLANEOUS PROVISIONS
14.1 The Share Transfer Agreement and rights of the parties hereunder shall be
interpreted and defined in accordance with China laws. If no such relevant
China laws exist, the international commercial convention shall be
applicable.
14.2 Failure to exercise, partially exercise or delayed exercise of any rights
hereunder by any party shall not be construed as a waiver of such rights or
any other rights hereunder by such party, except those expressly stated in
the agreement or waived in written form.
14.3 The Share Transfer Agreement and its appendices constitute the entire
agreement among the parties, and supersede all previous correspondences,
statement, agreement or any other documents executed by the parties prior
to the Share Transfer Agreement.
14.4 If any provisions herein become invalid as contradicted to the laws and
regulations applicable, such provisions shall be cancelled from the Share
Transfer Agreement. However, the invalidity of such provisions shall not
affect the validity of remaining provisions and entire validity of the
agreement. The parities shall make consultations to set up new provisions
or deal with the consequences resulted from the invalidity of such
provisions.
14.5 If the Share Transfer Agreement of Zhengxing Information Technology
(Shanghai) Co., Ltd. concluded between Xxxxxxxxx.xxx INC and China Finance
Online (Beijing) Co., Ltd. dated August 15, 2006, fails to make
registrations of share transfer at industry and commerce administration,
the agreement shall be cancelled voluntarily.
14.6 The Share Transfer Agreement is executed in [eight] copies. Each party
shall hold one copy. Others shall be used for the relevant registration
procedures. Each copy is equally authentic.
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APPENDIX 1-1: REPRESENTATIONS AND WARRANTIES OF THE TRANSFERORS
Except for those expressly disclosed in the disclosure sheet attached as
Appendix 2, the Transferors warrant and represent to the Transferee (and
the Transferors acknowledge the Transferee completes the transfer hereunder
based on such representations and warranties):
(a) Company
The Company is incorporated, organized and validly existing under the
laws of People's Republic of China, has a well-placed position and all
necessary corporate power and capacity to own its property and assets
and carry out its current business. The Company has completed all
registrations and records procedures, obtained the qualification to
carry out business in the form of Company in each jurisdiction and has
a well-placed position, which is essential to the characters of
business or the property the Company owns or leases within the
jurisdiction.
(b) Subsidiary
The Company does not possess, directly or indirectly, and has given no
consent to purchase (i) any outstanding shares or securities which can
be converted to shares of any other companies, or (ii) any shares
participated in dividends in any partnership enterprise, joint venture
enterprise or other commercial enterprise.
(c) Binding Agreement and Effectiveness of Transfer
The agreement constitutes legal, effective and binding obligations to
the Transferors. By executing and delivering the agreement, completing
the transfer stated hereunder, and performing the provisions,
conditions, and stipulations herein, the Transferors will not:
(i) contradict, violate or lead to violation of any obligation of the
Transferors, the Company or any subsidiary or accelerate the
performance of such obligation stipulated or agreed in the following:
A. Any laws applicable to the Transferors, the Company or any
subsidiary;
B. Any judgment, order, writ, injunction or award currently
applicable to the Transferors, the Company or any
subsidiary,
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issued by court or government officials, administrations or
departments;
C. Articles of association or any resolution of the
Transferors, the Company and any subsidiary, and the
revisions or reiteration of such articles of association or
resolution; or
D. Provisions in any agreements, arrangements, or
understandings to which the Transferors, the Company or any
subsidiary is one party, or binding the Transferors, the
Company or any subsidiary.
(d) License, Approval and Authorization
The Company carries out its business in accordance with all applicable
statutes, laws, order, rules and regulations stipulated by any and all
authorities which have jurisdictions over any part of the Company's
business, and possesses all license, approval and authorization
essential to the legal operation of its business. Such license,
approval and authorization are continual and effective and will be
effective, well-placed and under no violations until the completion
day of the agreement.
(e) Capital
The Company is a legal person established in accordance with China
laws, with limited liability, and the registered capital is RMB
[11,646,300].
(f) Shares Purchased and Ownership of Shares of Subsidiaries
The Transferors are the sole owner of all shares of the Company. The
shares of the Company is free and clear of any liens, pledge,
encumbrance, or encumbrance of other parties (except for the rights of
the Transferee hereunder and the agreement attached as Appendix 5).
Except for those stipulated herein or in the agreement attached as
Appendix 5, there are no agreements, options or rights of others,
which is binding or will bind in any time the Transferors or the
Company's actions of sale, transfer, distribution, securing, pledge,
charge of the purchased shares or in any other ways to dispose or
place such purchased shares.
(g) Financial Statement
The annual financial statements of the Company provided by the
Transferors:
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(i) have been prepared based on acknowledged accounting principles and in
correspondence with the last accounting period;
(ii) have been prepared according to financial records, and no adjusting
entries, and are adequate and accurate in all material aspects; and
(iii) have fairly reflected the assets, debts (whether are accrued,
absolute, contingent or others), financial status or operational
outcome.
(h) No Undisclosed Debt
Except for those disclosures reflected in or prepared for the balance
sheet, or taken place after the date of the balance sheet and
reflected in disclosure sheet in Appendix 2, the Company has no
unpaid debt or any liability or obligation (whether is accrued,
absolute, contingent or others), and no unperformed undertaking or
obligation in any kind (whether such undertaking or obligation is
deemed at present as debt of the Company or any subsidiary, in
accordance with the acknowledged accounting principles), except for
those payable accounts in the normal business operation.
(i) Taxation
(i) The Company have prepared adequate amount of money in the balance
sheet to pay for the due and unpaid tax at the date of the balance
sheet, or any due tax installments repayment of the Company at
current taxation year. Except for those reflected in or prepared for
the balance sheet, the Company has no liability for any taxation. To
the knowledge of the Transferors upon proper investigation, the
Company has no pending or possible action, lawsuit, audit,
investigation, claim, or other proceedings in connection with
taxation, and to the knowledge of the Transferors, there are no facts
or circumstances, actions, negligence, events, transactions, or
series of transactions (including execution and/or Completion of the
Share Transfer Agreement) which will or may possibly result in an
action, lawsuit, audit, investigation, claim, or other proceedings.
No agreement, waiver, or other arrangements will lead to the delay of
submitting the tax returns or paying for any taxes by the Company.
(ii) The Company and the subsidiaries have timely submitted all tax
returns, financial statements and other documents required by any
taxation laws. Such documents submitted contain no major false
representations, nor any omissions of representations of major facts
which shall be included. The Company has not submitted nor is it
required to submit any tax returns,
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financial statements or any other documents in any other
jurisdictions outside People's Republic of China;
(iii) The Company has timely withheld and remitted to the relevant
authorities (or has provided guarantees as regulated by the relevant
laws) the taxes in full which are required to be withheld and
remitted in the form required by applicable taxation laws (including
any retirement pension plan contribution and social insurance
(including but not limited to medical insurance, unemployment
insurance, on-job injury insurance) and any other deductions);
(iv) Except for the unpaid debt or liabilities disclosed in the financial
statements of the Company, the Company has no unpaid debts or
liabilities owing to the Company's directors, former directors,
management staff, shareholders, or employees, or to individuals or
companies that have no fair transactions with the aforesaid
individuals (except for the normal travel expenses borrowed in
advance according to procedures of the Company);
(v) The Company has not transferred property to any other person or
purchased property from any other person, directly or indirectly
through unfair transactions failed to be based on the fair value of
the property at sale or purchase.
(j) No Alteration (Prior to the Execution of the Agreement)
(i) There is no major adverse alteration as to any assets, business,
financial status, operational outcome or prospects of the Company.
(ii) There is no damage, destruction or loss, labour-management dispute of
any kind, or any event, development or condition of any kind which
may produce major adverse effect (whether or not an insurance
guarantee has been obtained).
(k) Ownership of the Property
Except for those disclosed in the balance sheet or in the Appendix 2,
the Company owns full and merchantable ownership of its property and
interests in its property, personal property and real property,
including the property disclosed in the balance sheet or purchased
after the date of the balance sheet (except the property transferred,
sold or disposed of in any way during general and normal business
operations after such date), and such property is free and clear of
any kinds of mortgages, pledge, security interests, liens or
agreement on ownership reservation.
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(l) Lease of Personal Property
Except those listed in Appendix 2, the Company has no leased or
borrowed equipment, other personal property or fixtures.
(m) Lease of Real Property
(i) Except the Lease and Sublease Agreement stated in Appendix 2 hereto,
the Company is not a party to any lease, sublease, license or other
legal documents in connection with the real property, and is not
bound by such legal documents, and the Company has not executed any
other legal documents in connection with the real property. Any
rights and interests of the Company under the Lease and Sublease
Agreement are free and clear of any kinds of liens, pledge and
encumbrances.
(ii) All the leases and subleases executed by the Company (listed in
Appendix 2) are in normal operation and fully effective. Except
otherwise specified in Appendix 2, no amendments have been made to
such leases and subleases. The Company has the right to benefit from
all leases and subleases to which the Company is one party.
(iii) Except otherwise specified in Appendix 2, all rents and other current
owed expenses have been paid, in accordance with all lease or
sublease agreements to which the Company is a party.
(iv) The Company has carried out all obligations under all lease or
sublease agreements to which the Company is a party; the Company has
not breached the obligations under any lease or sublease agreement,
and has not received notice of any breach under any lease or
subleases agreement.
(n) Real Property
Except as specified in Appendix 2, the Company does not own real
property nor does it have rights or interests in real property. The
Company has full and merchantable ownership of the permanent property
rights towards all real property, and such real property is free and
clear of any mortgage, pledge or encumbrances.
(o) Asset Status
All major tangible asset or any portion thereof used in the operation
or in connection with the operation of the Company and its
subsidiaries, is in good
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condition; the maintenance is normal (if applicable), except for
reasonable loss.
(p) Lawsuit
Except as disclosed in Appendix 2, there is no existence of any
pending lawsuit, action, dispute, civil or criminal lawsuit, claim,
arbitration, or legal, administrative or other proceedings, or
governmental investigation, including appeal and application filed for
the purpose of review (referred to collectively herein as "claims");
and to the knowledge of the Transferors, there is no existence of the
aforesaid claims threatened the Company or affected any of its asset,
property, or operation. To the knowledge of the Transferors, there are
no facts or circumstances that may give rise to such claims. Except as
disclosed in Appendix 2, there is no pending judgment, writ of
execution, writ, injunction, rules and orders against the Company
issued by any court, authorities, administrations or arbitration
authority.
(q) Intellectual Property
Appendix 2 lists all inventions, patents, brands, brands intended to
use, trade names, copyright, industrial designs, Company names, logos,
appearance, corporate style and other Intellectual Property (whether
registered or not), domestically or in foreign countries, of which the
Company has the ownership or license right, and all relevant
applications (referred to herein collectively as "Intellectual
Property"), including any detailed material in connection with
registration, any detailed registration material, and the earliest
used time of any unregistered Intellectual Property. The Company has
the ownership of all Intellectual Property. The Intellectual Property
is free of any claims or encumbrances. The use and execution (or
failure of use and execution) of the Intellectual Property by the
Company in any way does not lead to the restriction of its
effectiveness or invalidity. Except as disclosed in Appendix 2, the
Company has not made any infringement or violation on any Intellectual
Property of any person.
(r) Laws Compliance
The Company has obtained all necessary licenses, permits,
certificates, authorizations or approvals ("license and permit") which
entitle the Company to use the Company name and to engage and carry
out its operation and management though the assets and property owned,
leased, operated and used by the Company.
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(s) Agreement on Operation Restriction
The Company is not a party to any agreement or arrangement which
restricts the Company from conducting certain business.
(t) No Security
Except those specified herein or in any appendix hereto, the Company
has not provided or agreed to provide any securities to any debts,
compensation, bonds, security liability, or any other liabilities, nor
is the Company a party to such security or is bound by such security.
(u) Record of the Company
The Company shall provide without reservation the accurate and
complete record of meetings and resolutions convened by its directors
or shareholders since the establishment of the Company.
(v) Approval
Prior to the completion of the transfer hereunder, there is no
necessity for the Company or the Transferors to make to any
authorities or obtain from such authorities, any approval, consent,
authorization, or statement, record (except the administrative records
made at taxation authority, Company registration, or other
administrations of same kind) or registration, or make the obtaining
of the aforesaid as a condition to complete the transfer hereunder.
(w) Full Disclosure
The above acknowledgement and facts representations contain no false
representation of any major facts, and no omission of any major facts.
There is no existence of any fact of the Transferors failed to be
disclosed to the Transferee, which is foreseeable by the Transferors
to make major adverse effect on the capacity of the Transferors to
perform the obligations hereunder.
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(Signature Page)
The parties hereby sign the Share Transfer Agreement at the date first above
written:
PARTY A (SEAL):
AUTHORIZED REPRESENTATIVE:
/s/ CHENGLI JU
PARTY B (SEAL):
AUTHORIZED REPRESENTATIVE:
/s/XXX XXXX
PARTY C (SEAL):
AUTHORIZED REPRESENTATIVE:
/s/ XXXX XX
PARTY D (SEAL):
AUTHORIZED REPRESENTATIVE:
/s/ COMPANY SEAL
/s/XXXXXX XXXX
WARRANTOR (SEAL):
AUTHORIZED REPRESENTATIVE:
/s/ COMPANY SEAL
/s/XXXXXX XXXX
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