SHARE SALE AGREEMENT
Exhibit
10.4
This
SHARE SALE AGREEMENT (the “Agreement”), dated as of
December 9, 2010 by and among Bright Elite Management Limited (“Transferor”), and XXX Xxx Kei
(HKID: X000000(0)) (“Transferee”).
WHEREAS,
the Transferors have agreed to sell an aggregate of 100,000 shares of common
stock of China MediaExpress Holdings, Inc. (the “Company”) to the Transferee,
for good and valuable consideration as described below.
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE
1
Purchase
and Sale
Section
1. Transfer of the
Founder Shares. (a) Transferor hereby transfers (the “Transfer”) to Transferee such
number of shares of the Company’s common stock (the “Shares”) set forth on Annex A
hereto opposite its name against the simultaneous delivery by wire transfer to
an account previously specified in writing by Transferor to Transferee of the
consideration specified in such Annex A.
(b) Transferor
shall cause Company’s transfer agent, Continental Stock Transfer & Trust
Company (“CST”) to (i)
irrevocably transfer to Transferee the Shares and (ii) provide written evidence
satisfactory to Transferee and its counsel of the occurrence of (i),
above.
ARTICLE
2
Representations
and Warranties of Transferor
Transferor
represents and warrants to Transferee as of the date hereof that:
Section
2.01. Authority. Transferor
has full legal right, power and authority to enter into and perform its
obligations under this Agreement and to transfer the Shares under this
Agreement. This Agreement has been validly authorized, executed and
delivered by Transferor and, assuming the due authorization, execution and
delivery thereof by Transferee, is a valid and binding agreement of Transferor,
enforceable in accordance with its terms, subject to the general principles of
equity and to bankruptcy or other laws affecting the enforcement of creditors’
rights generally. The execution, delivery and performance of this
Agreement by Transferor does not and will not conflict with, violate or cause a
breach of, constitute a default under, or result in a violation of (i) any
agreement, contract or instrument to which Transferor is a party which would
prevent Transferor from performing or materially delay or materially impair the
ability of Transferor to perform its obligations hereunder or (ii) any law,
statute, rule or regulation to which Transferor is subject.
1
Section
2.02. Ownership of
Shares. Transferor is the legal and beneficial owner of the Shares,
free and clear of any liens, claims, security interests, options, charges or any
other encumbrance, limitation or restriction whatsoever. The Shares are
duly authorized, validly issued, fully paid and nonassessable. None of the
Shares is subject to any voting trust or other agreement or arrangement with
respect to the voting of such Shares. Upon the sale and transfer of the
Shares, and payment therefor, in accordance with the provisions of this
Agreement, assuming that Transferee does not have notice of any “adverse claim,”
within the meaning of Section 8-105 of the Uniform Commercial Code as in
effect in the State of New York (the “UCC”), to such Shares and obtains
“control” of such Shares within the meaning of Section 8-106 of the UCC,
(i) Transferee shall be a “protected purchaser” of such Shares within the
meaning of Section 8-303 of the UCC, and (ii) no action (whether
framed in conversion, replevin, constructive trust, equitable lien, or other
theory) based on any “adverse claim,” within the meaning of Section 8-102
of the UCC, to such Shares may be asserted against the Transferee with respect
to such Shares.
Section
2.03. Governmental Consents.
No consent, approval, license or authorization of or designation,
declaration, or filing with, any federal, state, or local governmental authority
on the part of Transferor is required in connection with the consummation of the
transitions contemplated by this Agreement.
Section
2.04. Sophisticated
Investor; Information. Transferor is an informed and sophisticated
investor, and has engaged expert advisors, experienced in transactions of the
type contemplated by this Agreement. Transferor further represents that it
has been furnished by the Company with, and has evaluated, all information it
deems necessary, desirable and appropriate to evaluate the merits and risks of
the transactions contemplated herein and has received such legal and financial
other advice as deemed to be necessary, desirable and appropriate to enable it
to make an informed and intelligent decision with respect to the execution,
delivery and performance of this Agreement. In evaluating the suitability
of the transactions contemplated herein, Transferor has not relied upon any
representations or information whether oral or written made by or on behalf of
Transferee other than the representations and warranties of the Transferee
expressly set forth in this Agreement. Transferor acknowledges that (i)
Transferee or its affiliates or agents currently may have, and later may come
into possession of, information with respect to the Company that is not known
to Transferor and that may be material to a decision to sell the Shares
(“Transferor
Excluded Information”), (ii) Transferor has determined to sell the
Shares notwithstanding its lack of knowledge of the Transferor Excluded
Information and (iii) none of Transferee or its affiliates or agents shall
have any liability to Transferor, and Transferor waives and releases any
claims that it might have against Transferee or its affiliates or agents
whether under applicable securities laws or otherwise, with respect to the
nondisclosure of the Transferor Excluded Information in connection with the
sale of the Shares and the transactions contemplated by this Agreement.
Transferor understands that Transferee and its affiliates and agents will
rely on the accuracy and truth of the foregoing representations,
and Transferor hereby consents to such reliance.
Transferor
understands and acknowledges that, in effecting the transactions contemplated by
this Agreement, the Transferee will rely on the representations and warrants
contained in this Section 2.
2
Section
2.05. Finder’s
Fees. No investment banker, broker, finder or other intermediary is
entitled to a fee or commission from Transferor or the Company in respect of
this Agreement based upon any arrangement or agreement made by or on behalf of
Transferee or any of its Affiliates.
Section
2.06. No Legal Advice
from Transferee. Transferor acknowledges that it has had the
opportunity to review this Agreement and the transactions contemplated by this
Agreement with Transferor’s own legal counsel and investment and tax
advisors. Transferor is not relying on any statements or representations
of Transferee or any of their representatives or agents for legal, tax or
investment advice with respect to this Agreement or the transactions
contemplated by the Agreement.
Section
2.07. Transfer
Taxes. Transferor understands that Transferor (and not Transferee)
shall be responsible for any and all tax liabilities of Transferor that may
arise as a result of the transactions contemplated by this
Agreement.
ARTICLE
3
Representations
and Warranties of Transferee
Transferee
represents and warrants to Transferors as of the date hereof that:
Section
3.01. Authorization.
Transferee has full legal right, power and authority to enter into and perform
its obligations under this Agreement and to purchase the Shares under this
Agreement. This Agreement has been validly authorized, executed and
delivered by Transferee and assuming the due authorization, execution and
delivery thereof by Transferor, is a valid and binding agreement of Transferee,
enforceable in accordance with its terms, subject to the general principles of
equity and to bankruptcy or other laws affecting the enforcement of creditors’
rights generally. The execution, delivery and performance of this
Agreement by Transferee does not and will not conflict with, violate or cause a
breach of, constitute a default under, or result in a violation of (i) any
agreement, contract or instrument to which Transferee is a party which would
prevent Transferee from performing or materially delay or materially impair the
ability of Transferee from performing its obligations hereunder or (ii) any law,
statute, rule or regulation to which Transferee is subject.
3
Section
3.02. Sophisticated
Buyer; Information. Transferee is sophisticated in financial
matters and is able to evaluate the risks and benefits attendant to the Transfer
and is an “accredited investor” within the meaning of Rule 501(a) promulgated
pursuant to the Securities Act of 1933, as amended (the “Securities Act”).
Transferee further represents that it has been furnished by the Company with,
and has evaluated, all information it deems necessary, desirable and appropriate
to evaluate the merits and risks of the transactions contemplated herein and has
received such legal and financial other advice as deemed to be necessary,
desirable and appropriate to enable it to make an informed and intelligent
decision with respect to the execution, delivery and performance of this
Agreement. In evaluating the suitability of the transactions contemplated
herein, Transferee has not relied upon any representations or information
whether oral or written made by or on behalf of Transferor other than the
representations and warranties of the Transferor expressly set forth in this
Agreement. Transferee acknowledges that (i) Transferor or its affiliates
or agents currently may have, and later may come into possession of, information
with respect to the Company that is not known to Transferee and that may be
material to a decision to purchase the Shares (“Transferee Excluded
Information”), (ii) Transferee has determined to buy the Shares
notwithstanding its lack of knowledge of the Transferee Excluded Information and
(iii) none of Transferor or its affiliates or agents shall have any
liability to Transferee and Transferee waives and releases any claims that
it might have against Transferor or its affiliates or agents whether under
applicable securities laws or otherwise, with respect to the nondisclosure of
the Transferee Excluded Information in connection with the purchase of the
Shares and the transactions contemplated by this Agreement. Transferee
understands that Transferor and its affiliates and agents will rely on the
accuracy and truth of the foregoing representations, and Transferee hereby
consents to such reliance.
Section
3.03. No Legal Advice from
Transferor. Transferee acknowledges that it has had the opportunity
to review this Agreement and the transactions contemplated by this Agreement
with Transferee’s own legal counsel and investment and tax advisors.
Transferee is not relying on any statements or representations of the Transferor
or any of its representatives or agents for legal, tax or investment advice with
respect to this Agreement or the transactions contemplated by the
Agreement.
Section
3.04. Transfer
Taxes. Transferee understands that Transferee (and not
Transferor) shall be responsible for any and all tax liabilities of Transferee
that may arise as a result of the transactions contemplated by this
Agreement.
Section
3.05. Restrictions
on Transfer. Transferee acknowledges and understands the
Shares have not been registered under the Securities Act, and, if in the future
the Transferee decides to offer, resell, pledge or otherwise transfer the
Shares, such Shares may be offered, resold, pledged or otherwise transferred
only (A) pursuant to an effective registration statement filed under the
Securities Act, (B) pursuant to an exemption from registration under Rule 144
promulgated under the Securities Act, if available, or (C) pursuant to any
available other exemption from the registration requirements of the Securities
Act, and in each case in accordance with any applicable securities laws of any
state or any other jurisdiction. Absent registration or an available
exemption from registration, Transferee agrees that it will not resell the
Shares and acknowledges that certificates representing the Shares shall bear a
legend to the foregoing effect.
ARTICLE
5
Miscellaneous
Section
5.01. Further
Assurances. Transferor and Transferee will execute and
deliver, or cause to be executed and delivered, all further documents and
instruments and use it reasonable best efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable law, to consummate and make effective the
transactions contemplated by this Agreement. Transferor further
agrees that the Investor shall be entitled to the customary demand registration
rights, piggy-back registration rights and other rights (as set out under the
Registration Rights Agreement dated January 28, 2010 by and among the Company
and the Transferee) with respect to the Shares, and shall cooperate with
Transferee in its exercise of such rights.
4
Section
5.02. Amendments. Any
provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by
each party to this Agreement or in the case of a waiver, by the party against
whom the waiver is to be effective.
Section
5.03 Successors and
Assigns. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that no
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other parties
hereto.
Section 5.04. Governing
Law. This Agreement shall for all purposes be deemed to be
made under and shall be construed in accordance with the laws of the State of
Delaware. Each of the parties hereby agrees that any action,
proceeding or claim against it arising out of or relating in any way to this
Agreement shall, to the fullest extent applicable, be brought and enforced first
in the Delaware Chancery Court, then to such other court in the State of
Delaware as appropriate and irrevocably submits to such jurisdiction, which
jurisdiction shall be exclusive. Each of the parties hereby waives
any objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum.
Section 5.05. Counterparts;
Effectiveness. This Agreement may be signed in any number of
counterparts and delivered by facsimile, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties
hereto. Until and unless each party has received a counterpart hereof
signed by the other party hereto, this Agreement shall have no effect and no
party shall have any right or obligation hereunder (whether by virtue of any
other oral or written agreement or other communication).
5
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
TRANSFEROR
BRIGHT
ELITE MANAGEMENT LIMITED
By:
|
||
Name:
Qing Xxxx Xxx
|
||
Title:
Sole Director
|
TRANSFEREE
|
By:
|
|||
Name:
Wai Xxx
Xxx
|
6
ANNEX
A
Transferor
|
Number of Shares
|
Aggregate Purchase Price
|
||
Bright
Elite Management Limited
|
|
100,000
|
|
$15.00
per share
|
7