EXHIBIT 10.29
TRASNFER AGREEMENT FOR EQUITY INTEREST IN
CHINA NETCOM GROUP CORPORATION (BVI)
COMPANY LIMITED
BY AND BETWEEN
CHINA NETCOM (HOLDINGS) COMPANY LIMITED
AND
CHINA NETWORK COMMUNICATIONS GROUP CORPORATION
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CONTENTS
1. EQUITY INTEREST TRANSFER........................................ 1
2. UNDERTAKINGS.................................................... 2
3. CONDITION PRECEDENT............................................. 3
4. TRANSFER COMPLETION............................................. 3
5. ENTIRE AGREEMENT................................................ 3
6. SEVERABILITY.................................................... 4
7. AMENDMENT....................................................... 4
8. AGREEMENT COPIES................................................ 4
9. INDEMNIFICATION................................................. 4
10. GOVERNING LAWS AND JURISDICTION................................. 5
11. NOTICE.......................................................... 5
12. MISCELLANEOUS................................................... 5
THIS AGREEMENT is made and entered into on June 10, 2004 by and between the
following two parties:
(1) China Netcom (Holdings) Company Limited (hereinafter referred to as "China
Netcom Holdings" or the "Transferor") is a company duly incorporated and
validly existing under the laws of People's Republic of China (hereinafter
referred to as "PRC") , with its registered address at: F3 Xxxxxxxxxxxxx
Xxxxx, Xx.00, Xxxxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, XXX;
(2) China Network Communications Group Corporation (hereinafter referred to as
"China Netcom Group" or the "Transferee") is a company duly incorporated
and validly existing under the laws of PRC, with its registered address
at: Xxxxxxxx X, Xx.000, Xxxxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
XXX;
WHEREAS:
(1) As the step to implement China Netcom Group's Restructuring and Listing
Plan approved by the State Council in principal, Chinese Academy of
Sciences, Information and Network Center of State Administration of Radio,
Film and Television, China Railways Telecommunications Center and Shanghai
Alliance Investment Limited (hereinafter referred to as the "former four
shareholders") and China Netcom Group entered into the Transfer Agreement
for Equity Interest in China Netcom (Holdings) Company Limited on April 20
2004, according to which the former four shareholders transferred the 25%
of equity interest of China Netcom Holdings held by each of them to Netcom
Group respectively. When the transfer is completed, China Netcom Holdings
became a wholly subsidiary of China Netcom Group;
(2) China Netcom Holdings holds all the equity interest of China Netcom Group
Corporation (BVI) Limited (hereinafter referred to as "CNC BVI");
(3) Based on the terms and clauses set out in this Agreement, China Netcom
Holdings agrees to transfer all of its holdings in CNC BVI and China
Netcom Group agreed to receive all the transferred equity interest in CNC
BVI.
Both parties hereby agree to the following provisions:
1. EQUITY INTEREST TRANSFER
1.1 Considering the mutual undertakings set out under this Agreement,
China Netcom Holdings as the interest owner agrees to transfer to
China Netcom Group all of its holdings in CNC BVI and Netcom Group
agrees to receive all of the transferred equity interest of CNC BVI
(hereinafter referred to as
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the "transferred equity interest").
1.2 For the transferred equity interest defined in the above Clause 1.1,
China Netcom Group needs pay no consideration to China Netcom
Holdings. To make sure the equity interest transfer under this
Agreement will not harm the interests of Netcom Holdings' creditors,
Netcom Group agrees to, as required by the related laws and
regulations, provide repayment guarantees for China Netcom Holdings'
debt listed on its audited financial statements.
1.3 The transferred equity interest of CNC BVI contains any rights
attached, but is not bound with any pledge interests, other
guarantee interests, options, claims or other third party rights of
any nature (including but not limited to the right of first refusal)
(collectively refereed to as "property right burden").
1.4 Both parties to this Agreement hereby agree that the transferee is
entitled to the rights as a shareholder of CNC BVI beginning from
[December 31 2003] if all the conditions set out in Clause 3 of this
Agreement are satisfied.
2. UNDERTAKINGS
2.1 Each party hereto makes the following mutual representations and
undertakings:
(a) It has the full legal rights and sufficient power and
authorization to execute this Agreement and to perform the
obligations under this Agreement, and according to this
Agreement, such obligations constitute the duties that are
legally valid and consequently binding on them;
(b) Executing the provisions of this Agreement will not result in:
(i) violations of its incorporation documents or other
related documents, or any laws, regulations or rules
applicable to it; or
(ii) violations of any important contracts, agreements,
licenses or other written pledges, or orders, rulings
and decrees by courts, government bodies or regulatory
authorities.
2.2 As the transferor of the transfer mentioned in Clause 1 above, China
Netcom Holdings makes to Netcom Group the following representations
and undertakings:
(a) there are no liquidation orders or resolutions for liquidation
or
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closedown or other similar arrangements, nor any petitions
submitted to the court for a verdict or intentions to hold
meetings for a resolution in favor of the said liquidations or
closedowns or other similar arrangements.
(b) there are no liquidators, takeovers, bankruptcy managers or
other similar persons appointed, nor will there be any
resolutions passed by the Board of Directors or Shareholders'
Meeting in relation to the appointment of such persons.
3. CONDITIONS PRECEDENT
The equity interest transfer defined in Clause 1.1 in this Agreement takes
effect on the date when all of the following conditions are satisfied:
3.1 The State Council formally approves Netcom Group's Restructuring and
Listing Plan submitted by China Securities Regulatory Commission;
3.2 Holders of the preferred shares of China Netcom Croup Corporation
(Hong Kong) Limited (hereinafter referred to as "CNC HK") give
consent to the equity interest transfer under this Agreement, or the
preferred shares of CNC HK are already not in existence any longer.
4. TRANSFER COMPLETION
Within five days after all the conditions set out in Clause 3 of this
Agreement are satisfied, China Netcom Holdings shall:
4.1 transfer to China Netcom Group the shares representing all of CNC
BVI's equity interest, signed share-transfer notes, all of CNC BVI's
stamps and seals, records and accounts, and cause CNC BVI to list
the name of China Netcom Group in its register of shareholders;
4.2 procure CNC BVI to hold the meeting of directors to authorize the
equity interest transfer and to appoint the person nominated by
China Netcom Group as the director of CNC BVI; and
4.3 procure former directors of CNC BVI to resign as required by China
Netcom Group.
5. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding of both
parties with respect to the equity interest transfer under this Agreement
and
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supersedes any and all prior agreements and understandings with respect to
the subject matter hereof. Such agreements and understandings shall not be
valid any longer. When signing this Agreement, no party depends on any
representations, warranties and undertakings not included or mentioned in
this Agreement.
6. SEVERABILITY
If any provisions of this Agreement are held to be ineffective or
unenforceable, such provision(s) shall be void and excluded from this
Agreement while the balance of the Agreement shall still be effective.
Under such conditions, both parties shall make reasonable efforts to
replace the ineffective or unenforceable provisions with effective and
enforceable ones. The effectiveness of the replacements shall be as close
to that of the ineffective or unenforceable provisions as possible.
7. AMENDMENTS
Any amendments made to this Agreement (or any documents mentioned in this
Agreement) shall be made only in writing, and becomes effective when
endorsed by each party to this Agreement or its authorized representative.
The word "amendment" shall cover any modification, addition, deletion or
change made in any form. The parties to this Agreement may waive in
writing part of the condition precedent set out in Clause 3 so as to
effectuate the transfer under this Agreement at an earlier date.
8. AGREEMENT COPIES
This Agreement is made into six (6) counterparts. Each party holds one (1)
counterpart and remaining are used when submitted to relevant regulatory
authorities for examination and approval.
9. INDEMNIFICATION
9.1 For any claims, debts or liabilities on the equity interest of CNC
BVI and in connection with the equity interest transfer under this
Agreement, which are not discovered at the effective date of the
equity interest transfer, the Transferor warrants to indemnify the
Transferee against any obligations and will make full compensation.
9.2 If any undertakings and representations made by the transferor as
set out in Clause 3 of this Agreement are not accurate, the
transferor shall completely indemnify the transferee against any
obligations arising thereof at any time.
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10. GOVERNING LAWS AND JURISDICTION
10.1 This Agreement and the relationship between both parties to this
Agreement shall be governed and interpreted in accordance with the
laws of PRC.
10.2 Both parties agree any disputes (including request for compensation
or counterclaim) arising from the conclusion, validity,
effectiveness interpretation or implementation, or the legal
relationship established by this Agreement, or other reasons in
connection with this Agreement shall be subject to the exclusive
jurisdiction of Chinese courts. For this purpose, each party shall
irrevocably obey the jurisdiction of Chinese courts.
11. NOTICE
11.1 All notices required to be delivered pursuant to this Agreement
shall be in writing, and delivered to the address as stated at the
beginning part of this Agreement, or to addresses designated by one
Party to the other Parties in writing from time to time. All notices
shall be delivered in the form of telex, telegraph or facsimile.
11.2 Any notice shall be deemed to have been delivered at the time of
actual receipt if delivered by hand; on the date of return receipt
if delivered by registered mail; at the time of receiving the return
receipt if delivered by telegraph; and at the time of transmission
if delivered by facsimile.
12. MISCELLANEOUS
This Agreement has been signed and executed on the date stated at the
beginning part of this Agreement by the representatives formally and legally
authorized by the Parties hereto.
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(Signature page)
China Netcom (Holdings) Company Limited
Authorized Representative:_______________
China Network Communications Group Corporation
Authorized Representative:_______________
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