Exhibit 10.65
SHANGHAI TECHUR TECHNOLOGY DEVELOPING CO., LTD.
AGREEMENT ON TRANSFER OF SHARES' OWNERSHIP
------------------------------------------
August 15, 2002
Agreement on Transfer of Shares' Ownership
This agreement is reached and signed by the parties listed below in Beijing on
August 15, 2002:
PARTY A: Shanghai Zhengda Investment Management Co., Ltd
PARTY B: Xxxxx Xxxxxx
PARTY C: Shanghai Tiandi Science & Technology Investment Development Co, Ltd
PARTY D: Shanghai Qingpu Science & Technology Garden Investment Consulting Co.,
Ltd
PARTY E: Xxxx Xxxxxx
PARTY F: Xx Xxxxx
PARTY G: Wang Xiaoxiang
PARTY H: Rich Sight Investment Limited
Whereas:
1. On June 25, 1997, Shanghai Zhengda Investment Management Co., Ltd and
Xxxxx Xxxxxx, citizen of PRC (hereinafter referred to as "Initial
Shareholders"), co-invested and established Shanghai Techur Technology
Developing Co., Ltd (hereinafter referred to as the "Target Company"),
which was approved and then issued a business license with the number
3102291014298 by Shanghai Industrial & Commercial Administration Bureau.
2. The target company had a total registered capital of 10.4 million RMB in
1999. Both the initial shareholders had rendered all the registered
capital, 75% of which, 7.8 million RMB, was invested by Shanghai Zhengda
Investment Management Co., Ltd, and the rest 25%, 2.6 million RMB, was
invested by Xxxxx Xxxxxx.
3. On Dec. 18, 2000, an additional investment was made into the target
company that raised the registered capital of the target company to 30
million RMB. Shanghai Zhengda Investment Management Co., Ltd hold an
accumulative total investment volume of 10.4 million RMB, accounting for
47.33% of the total registered capital; Xxxxx Xxxxxx invested 6 million
RMB, making up 20% of the total registered capital; Shanghai Online
Information Network Co., Ltd (former named as Shanghai Online Information
Network Integration Co., Ltd), 0.8 million RMB and 2.67%; Shanghai Qingpu
Science & Technology Garden Investment Consulting Co., Ltd, 0.3 million
RMB and 1%; Shanghai Tiandi Science & Technology Investment Development
Co, Ltd, 8.7 million RMB and 29%.
4. In November 2000, some transfers of the shares' ownership were made.
Consequently, the registered capital of the target company changed to 30
million RMB and the shareholders list and their investing percentage after
modification were as below:
1) Shanghai Zhengda Investment Management Co., Ltd (hereinafter
referred to as Party A), 11.5 million RMB, 38.33%;
2) Xxxxx Xxxxxx (hereinafter referred to as Party B), 6 million RMB,
20%;
3) Shanghai Tiandi Science & Technology Investment Development Co., Ltd
(hereinafter referred to as Party C), 5.9 million RMB, 19.67%;
4) Shanghai Qingpu Science & Technology Garden Investment Consulting
Co., Ltd (hereinafter referred to as Party D), 0.3 million RMB, 1%;
5) Xxxx Xxxxxx (hereinafter referred to as Party E), Citizen of PRC,
2.5 million RMB, 8.33%;
6) Xx Xxxxx (hereinafter referred to as Party F), citizen of PRC, 2.8
million RMB, 9.33%;
7) Wang Xiaoxiang (hereinafter referred to as Party G), citizen of PRC,
1 million RMB, 3.33%.
(All the parties mentioned above shall be referred to as Assigners).
5. Both Party H and assigners agree that Party H purchases 100% of the total
shares of the target company at the cost of 15.5 million RMB so that the
target company essentially shall be able to transform into a foreign
proprietorship.
6. Assigners shall sell all the shares of the target company that they owns
to Party H or any third party designated by Party H pursuant to the
articles and terms of this agreement.
7. Party H, as a legally founded and existed company with limited liabilities
in accordance with the laws and regulations of Hong Kong, shall agree to
buy in or designate a third party to buy in the said shares pursuant to
the articles and terms of this agreement.
The following agreement is reached through friendly negotiation among parties:
ARTICLE 1: TRANSFER OF SHARES' OWNERSHIP
1. Both the assigners and the Party H agree with the transfer of shares of
the target company that are held by the assigners and any rights,
interests and claims concerning the said shares from the assigners to
Party H or any third party designated by Party H pursuant to the articles
and terms of this agreement.
2. Upon validity of this agreement, Party H or the third party designated by
Party H shall become the sole proprietor of the target company, enjoying
all the rights and assuming all the liabilities regulated by the Chinese
laws and the constitution of the target company. All assigners shall be
relieved from taking any responsibilities and duties for the transfer of
shares' ownership since then.
3. All parties agree that Article 3 of this agreement shall be the conditions
for the validity of this agreement.
ARTICLE 2: QUID PRO QUO FOR TRANSFER
The quid pro quo for this transfer of shares' ownership from the assigners to
Party H or any third party designated by Party H stated in this agreement is
15.5 million RMB. After completion of the said transfer, Party H or any third
party designated by Party H shall hold 100% of the shares of the target company.
ARTICLE 3: CONDITIONS FOR THE TRANSFER
1. All parties shall have been issued, in accordance with the laws and
regulations of PRC, all the legal documents that provide formal approvals
and authorizations concerning the said transfer of the shares' ownership
under this agreement.
2. All parties shall have acquired all the approvals, agreements and
exemptions for the consents of the transfer of shares' ownership from
other concerned parties, and all the documents shall have been signed.
3. Party A agrees to pay 6.1 million RMB to the target company for 2,037,586
shares of Suzhou Gaoxin domestic corporation shares (please check Appendix
1: Agreement on Transfer of Suzhou Gaoxin Corporation Shares). Assigners
agree that this is the condition for Party H to perform its obligations
under this agreement. Party H shall preserve the right not to make the
payment for the transfer of shares' ownership to any assigners before
Party A pays 6.1 million RMB to the target company. Besides, should Party
A fail to make the said payment in 30 days since the date signing this
agreement, Party H shall be entitled to the right to terminate the
agreement, bearing no obligations at all. Meanwhile, Party H pledges to
Party A to perform its contractual obligation once Party A redeems its
obligations by Agreement on Transfer of Suzhou Gaoxin Corporation Shares.
4. Assigners agree that the assigners or any other relevant parties liable
shall assume all the liabilities resulting from any disposals of the
Suzhou Gaoxin Domestic Corporation Shares (including but not limited to
hypothecation and alienation) conducted by assigners or the target company
before signing this agreement. Party H, as the new shareholder of the
target company, shall not be responsible for any liabilities. Otherwise,
assigners shall indemnify for any losses to Party H.
5. Assigners pledge to urge the core managing staff to sign the new labor
contract with the target company in 10 working days since the validity of
this agreement, the terms of which shall not be less than two years. The
details of the labor contract are available in Appendix 2: Labor Contract.
Should anyone of the managing staff fail to sign the new labor contract
with the target company in those ten days since the validity of this
agreement, Party H shall have the right to terminate the agreement. The
list of the core managing staff of the target company is
as following: Xx. Xxxxx Xxxxxx, Xx. Xxxx Xxxxxx and Xx. Xxxx Yan.
6. Party B and Party E agree that any party between them shall be responsible
for an indemnity of 500,000 RMB to Party H, in case that any party between
them rescinds the labor contract signed with the target company
unilaterally in one year since the validity of this agreement.
7. Assigners agree that Xx. Xxxx Weijun and Xx. Xxxx Yan, serving as the core
managing staff for the target company, shall spend part of their office
hours (no more than 35% of their total office hours) working for the
operation of SOL business, and accordingly, SOL shall pay for their
working hours. Assigners agree not to lower down the profit goal of the
target company with the excuse that Xx. Xxxx Weijun and Xx. Xxxx Yan work
partially for SOL. However, in principle, the said arrangement shall not
produce any negative influence to Xx. Xxxx Weijun and Xx. Xxxx Yan when
they are working for the Target Company.
8. Assigners agrees that should any bad performance be resulted from any
member of the core managing staff of the target company, Party H shall
have the right to change his post and even terminate the labor contract in
advance on condition that the said circumstance is worse off. Assigners
shall not ask for any modification to be made to the terms of this
agreement for any reason relevant to the above-mentioned issue.
9. Assigners agree that all the shares that it holds shall not contain any
state-owned ones and that Party H shall have the right to relieve itself
from the agreement without taking any responsibilities if assigners
breaches this pledge.
ARTICLE 4: PAYMENT OF QUID PRO QUO FOR TRANSFER OF SHARES' OWNERSHIP
1. Under the circumstances that the conditions stimulated in Article 3 have
all been satisfied, all parties agree that: Party H shall make the payment
of RMB 775,000 to assigners in 5 five working days since the date when
this agreement is signed, and then make another payment of 14.725 million
RMB in ten working days upon completion of all the transfer formalities;
2. All assigners agree herein explicitly that, Party H shall pay all the quid
pro quo for the transfer of shares' ownership that shall be paid to
assigners directly to Party A in accordance with this agreement and that
shall be deemed as that Party H has fulfilled its obligation of making all
necessary payment to all assigners. After having received the quid pro quo
for the transfer of shares' ownership from Party H, Party A shall
distribute the quid pro quo to each assigner in proportion to their
percentage in the total shares of the Target Company. Should any disputes
rise owing to the payment of quid pro quo for transfer of shares'
ownership between Party A and other assigners, Party H shall not be held
liable.
ARTICLE 5: PROCLAIMS, GUARANTEES AND COMMITMENTS
1. Assigners make the following proclaims and guarantees to Party H:
(1) Assigners have all the competence and authority to sign this
agreement and then carry out all the obligations stimulated in this
agreement.
(2) Assigners have performed the obligation of rendering investment to
the target company, hence all of them enjoy all legal, complete and
abundant proprietorship and influence towards the transfer of
shares' ownership under this agreement.
(3) The target company is a legally established and existed company with
limited liabilities in conformity with the laws and regulations of
PRC and it has been issued all necessary approvals, authorities,
admissions and consents to operate its business. The target company
has not been involved into any situations where the said approvals,
authorities, admissions, consents or its business license is
cancelled temporarily or withdrawn.
(4) All the financial statements, other financial records and any other
documents relevant to the target company provide by assigners to
Party H or those lawyers, accountants and any other trustee parties
appointed by Party H for this transfer of shares' ownership are
legal, valid, authentic and complete. Assigners understand that
Party H is relying on those documents concerning the target company
when signing this agreement. Should the said documents be false or
misleading, Party H shall have the right to ask for indemnification
from assigners and then terminate the agreement beforehand.
(5) Assigners pledge that all the liabilities of the target company
before the signing date of this agreement have been stated in the
financial statements and other relevant financial documents
presented to Party H. If any liabilities of the target company is
not shown in any finanical statements or other relevant financial
documents of it and the total volume of said liabilities is less
than RMB 300,000, assigners and Party H shall seek settlement
through negotiation. Assigners shall be held liable for any loss
resulting from the said reason if negotiation does not work. Should
the total volume of the said liabilities exceed RMB 300,000, Party H
shall have the right to ask for indemnification from assigners and
then terminate the agreement beforehand.
(6) Before the date when the agreement becomes effective, the target
company has or is going to pay all the taxation resulting from its
business, assets and liabilities or others concerned to the relevant
government departments and any other institutions.
(7) The target company has filled in and submitted all the necessary
taxation declaring forms concerning its business, assets and
liabilities on the appropriate basic reference before the validity
date, which have not aroused (and shall not arouse) any disputes. As
far as assigners have learnt or checked out after reasonable
inquiries, there shall not be any reasons leading to the said
disputes or any claims for reimbursement of taxation or any loss of
existed discounts or concessions of taxation.
(8) The general meeting of shareholders of the target company has
reached a decision that agrees with the transfer of shares'
ownership to Party H, and other shareholders have
agreed in written forms to abandon the priority of purchasing the
transferred shares' ownership.
(9) Before signing this agreement, assigners do not design or permit to
design any rights of guarantee for the transfer of shares'
ownership.
(10) Before signing this agreement, as far as assigners have learnt,
there are no situations that have produced or will produce serious
negative influence to the operation of the target company.
(11) There are no any lawsuits, arbitration or administrative procedures
brought to assigners that are in existence or pendent, or poses
potential threats to assigners.
(12) Each assigner's signing this agreement shall not put each of them in
a position where each assigner breaches any terms, conditions or
regulations of other contracts, agreements, of which each assigner
is one party.
(13) After signing this agreement, assigners shall not seek to sign with
any other companies, enterprises or individuals instead of Party H
the same or similar letter of intents, agreements or contracts, the
intent or the obligation of which would allow any percentage of
shares' ownership to be transferred to any other parties, no matter
with or without any conditions.
(14) Once being signed by all parties, this agreement shall become
legally effective and enjoy legal binding force after being
approved.
(15) Assigners shall be responsible for settling legal formalities
concerning the transfer of shares' ownership stated in this
agreement, including but not limited to modification to the
constitution of the target company, alteration of the business
license and acquirement and change-over of the relevant authorizing
documents.
(16) All assigners have a full and explicit understanding towards the
intent, conditions of this agreement and all the duties and
obligations under this agreement, then make and sign this agreement
of their own accord in the principle of equity.
(17) Should any assigner breach any regulation of this agreement, other
assigners agree to take the joint and several liabilities together
with the breaching assigner to Party H.
2. Party H makes the following proclaims and guarantee to all assigners:
(1) Party H is a legally established and existed legal entity in
accordance with the laws and regulations of Hong Kong, enjoying
rights, authorities and competence to make this agreement and then
perform all the obligations and duties under this agreement.
Besides, once being valid, this agreement shall compose legal,
effective and binding obligations
that can be compulsorily executed to Party H.
(2) Party H has obtained all necessary consents, approvals and
authorities for signing and performing this agreement, except for
those stated by this agreement otherwise.
(3) Party H's signing this agreement dose not put itself in a position
where it breaches any terms, conditions or regulations of other
contracts, agreements, of which Party H is one party.
(4) Party H shall assist assigners to settle those legal formalities
concerning the transfer of shares' ownership stated in this
agreement, including but not limited to modification to the
constitution of the target company, alteration of the business
license and acquirement and change-over of the relevant authorizing
documents.
ARTICLE 6: SETTLEMENT OF LIABILITIES
1. After the transfer is formally completed, that is, Party H is issued the
business license of a foreign proprietorship from Shanghai Bureau of
Industrial & Commercial Administration (the same hereunder); Party H shall
be held responsible for all the liabilities that have been imposed upon
the target company and have been stated on the financial reports or other
relevant financial documents thereof before signing this agreement. Those
liabilities that fail to be stated in the financial reports or other
relevant financial documents of the target company due to some special
reasons shall be settled as required by Term 5, Clause 1, Article 5 of
this agreement.
2. After the transfer hereof is successfully completed, Party H shall be
responsible for all the natural operating liabilities incurred to the
target company since the signing date of this agreement to the date of
successful completion of the transfer. Any material financial shift or
non-natural operating liabilities shall be reported to Party A and Party H
for written approval; otherwise, any loss induced thereupon shall be
assumed by the breaching party.
3. Party H shall bear the responsibility for all the liabilities of the
target company after the transfer hereof is fully finished.
ARTICLE 7: LIABILITIES FOR BREACH OF THIS AGREEMENT
1. Breach of agreement is formed when any proclaims, pledges or guarantee
made by any party under this agreement turn out to be false or misleading
substantially or any party breaches any terms of this agreement.
2. If any party breaches the agreement and that has caused loss to the
non-breaching party, the breaching party shall render complete and
abundant compensation to that party.
3. If the agreement is terminated by party H owing to the severe breach of
agreement by the
assigners, assigners shall pay back all the quid pro quo for the
transferred shares' ownership to Party H and provide all necessary
assistance in performing the relevant formalities. Meanwhile, assigners
shall compensate for all the economic loss to Party H.
ARTICLE 8: FORCE MAJEURE
1. Force majeure refers to any incidents that cannot be controlled, foreseen
or avoided even foreseen. The said incidents holdback, delay or dally any
party to perform all or part of its obligations under this agreement,
including but not limited to governmental acts, earthquakes, typhoons,
floods, fires or any other natural disasters, wars and other similar
incidents.
2. In case of any force majeure, the suffering party shall inform the other
parties with the fastest tools about the nature, occurring date, estimated
lasting period and other related details about it and how serious the
suffering party will be influenced in performing its obligations.
3. The suffering party shall inform the other parties the present situation
of itself regularly and timely during the period that the force majeure
lasts and then the final situation when it stops.
4. The suffering party may be relieved from undertaking its obligation
without bearing any responsibilities before the force majeure ends, but it
should try its best to conquer the force majeure so as to reduce the
negative influence of it.
5. The suffering party shall provide legal certifications that are issued by
the local notary office for the force majeure to other parties. If the
party fails to provide the said certifications, the other parties shall
have the rights to ask the suffering party to take the liabilities for
breaching the agreement conforming the concerning regulations of this
agreement.
ARTICLE 9: LIMITATION OF RIGHTS
1. This agreement shall be valid to all parties, their inheritors and their
assignees that comply with the relevant regulations.
2. Any party shall not assign its rights or obligations under this agreement
without obtaining written consents from other parties.
ARTICLE 10: VALIDITY OF AGREEMENT AND REGISTRATION OF RELEVANT MODIFICATIONS
1. After all parties sign this agreement, assigners shall urge the target
company to fulfill the relevant formalities concerning the transfer of
shares' ownership conforming to the laws and regulations of PRC.
2. This agreement shall become effective since the date when the formalities
stimulated by Term 1 of this article are fully fulfilled.
ARTICLE 11: MODIFICATIONS AND BEFOREHAND TERMINATION OF THIS AGREEMENT
1. Any modifications to this agreement shall require unanimous consents from
all parties and signing of those relevant written document. The
modification shall be sent to concerning administrative authorities for
approval or recording (if needed) after signed by all parties, and become
effective since the date when it is signed or approved (the later date
shall be the right date).
2. The beforehand termination of this agreement shall not influence any
rights and obligations that have been in existence before the termination.
ARTICLE 12: REFERENCE TO THE LAWS
Laws and regulations of PRC shall be applied for the conclusion,
effectiveness, explanations, performances and settlement of disputes concerning
this agreement.
ARTICLE 13: SETTLEMENT OF DISPUTES
All parties shall seek settlement for any disputes resulting from the
execution of this agreement or concerning this agreement through friendly
negotiation. If failed, the disputes shall be presented to China International
Economic & Trade Arbitration Committee for settlement according to the current
arbitrating procedures. The arbitration result shall be the dernier one and bind
all the parties. The party who loses the arbitration shall be held liable for
the arbitration fees.
ARTICLE 14: OTHER ISSUES
1. Any notifications concerning this agreement from any party to other
parties shall be in the written form and delivered by designated person or
by faxes, telegraphs, or mails. When delivered by designated person, it
shall be sent to the legal addresses of other parties. If delivered by
faxes or telegraphs, the delivery shall only be deemed valid when the
sender receives answering code. If delivered by mails, the receiving date
shall be ten days since the date when it is mailed.
2. This agreement is drawn in Chinese language in ten originals, one for each
party and other two respectively reported to Shanghai Foreign Investment
Committee and Shanghai Bureau of Industrial & Commercial Administration
for approval and records. Two copies of this agreement are reserved by the
target company as records and all the originals and copies shall be
equally authentic.
PARTY A: Shanghai Zhengda Investment Management Co., Ltd
SIGNATURE: /s/
PARTY B: Xxxxx Xxxxxx
SIGNATURE: /s/
PARTY C: Shanghai Tiandi Science & Technology Investment Development Co, Ltd
SIGNATURE OF LEGAL REPRESENTATIVE/ REPRESENTATIVE: /s/
PARTY D: Shanghai Qingpu Science & Technology Garden Investment Consulting Co.,
Ltd
SIGNATURE OF LEGAL REPRESENTATIVE/ REPRESENTATIVE: /s/
PARTY E: Xxxx Xxxxxx
SIGNATURE: /s/
PARTY F: Xx Xxxxx
SIGNATURE: /s/
PARTY G: Wang Xiaoxiang
SIGNATURE: /s/
PARTY H: Rich Sight Investment Limited
SIGNATURE OF LEGAL REPRESENTATIVE/ REPRESENTATIVE: /s/
