EXHIBIT 4.11
EQUITY TRANSFER CONTRACT
ARTICLE 1 PARTIES
1.1 Transferor: Shenyang Automobile Industry Equity
Investment Co., Ltd.
Registered Address: Xx. 00, Xxxxxxxxxxx Xx, Xxxxx Xxxxxxxx,
Xxxxxxxx
Legal Representative: HE, Guohua
1.2 Transferee: Shenyang JinBei Automotive Industry Holdings
Company Limited
Registered Address: 0xx Xxxxx, Xxxxxxxx X, Xx. 0 Xxxxx Xxxx
Xxxxxx Property Development Zone, Shenyang
New High-Tech Development District
Legal Representative: HONG, Xing
ARTICLE 2 TRANSFER OF EQUITY AND PAYMENT OF THE PRICE
2.1 The Transferor agrees to transfer the 90% equity it holds in Shenyang
Xinjinbei Investment Co., Ltd. (hereinafter referred to as the
"Company") to the Transferee under the terms and conditions hereunder,
and the Transferee shall pay to the Transferor the equity transfer
price for accepting the aforesaid subject equity.
2.2 The aggregate amount of the transfer price for the aforesaid subject
equity shall be XXX 000 million.
2.3 The Parties agree that the transfer price for the aforesaid subject
equity shall be paid as follows:
The Transferee shall pay the above-mentioned equity transfer price to
the Transferor within three months of the execution of this Contract.
2.4 The Transferor and the Transferee shall bear their respective taxes
incurred in this equity transaction according to the law.
ARTICLE 3 COVENANTS, WARRANTIES AND OBLIGATIONS OF TRANSFEROR
For the purpose of this Contract and the benefit of the Transferee, the
Transferor hereby irrevocably warrants and covenants to the Transferee with
respect to the Transferee and the Company, including but not limited to:
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3.1 According to the relevant provisions of the existing laws and
administrative regulations, the Transferor has the right to transfer
the subject equity pursuant to the terms and conditions hereunder.
3.2 The Company is duly organized and validly existing, and has all valid
government consents, approvals and permits required for the normal
legal operation of business according to its enterprise legal person
business license.
3.3 The Transferor is the lawful holder of the subject equity, and has paid
all consideration in full amount required to legally acquire the
subject equity. The Transferor has not created any mortgage, pledge or
other forms of security and/or other third party rights on the subject
equity. The subject equity held by the Transferor is not under any
enforcement by any court or administrative authorities.
3.4 The Transferor warrants that the Company has no debt and guarantee that
it provides to any third party that has not been disclosed to the
Transferee. The financial documents facilitated to the Transferee truly
and accurately reflect the Company's operation status.
3.5 The Transferor warrants that, other than this Contract, there is no
other contract, agreement, instrument and/or other binding arrangement
that has become or will become effective which will lead to the
transfer of the subject equity hereunder to any third party, or
constitute legal impediments to the execution and performance of this
Contract.
3.6 The Transferor hereby acknowledges that the Transferee enters into this
Equity Transfer Contract relying on the above covenants and warranties
made by the Transferor.
ARTICLE 4 COVENANTS AND WARRANTIES BY THE TRANSFEREE
The Transferee hereby covenants and warrants to the Transferor as
follows:
4.1 According to the relevant provisions of the existing laws and
administrative regulations, the Transferee has the right to accept
pursuant to the terms and conditions hereunder the subject equity to be
transferred and to become a shareholder of the Company.
4.2 The execution and performance of this Contract by the Transferee does
not constitute any impediment to the relationship between the
Transferee and any third party (including but not limited to any
contract, agreement, instrument and/or other binding arrangement
entered into by the Transferee and a third party that have become or
will become effective). Any relationship between the Transferee and any
third party (including but not limited to any contract, agreement,
instrument and/or other binding arrangement entered into by the
Transferee and a third party that have become or will become effective)
shall not constitute a legal impediment to the execution and
performance of this Contract.
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ARTICLE 5 APPROVAL AND FILING PROCEDURES OF THE EQUITY TRANSFER
5.1 The Parties hereby agree to actively proceed with and complete the
approval and filing procedures required for the consummation of this
equity transaction after the execution of this Contract according to
laws and regulations, including but not limited to:
(1) undergoing the discussion and approval procedures of the corporate
authority according to their respective articles of association;
(2) undergoing the approval procedures for transfer of state-owned
equity;
(3) undergoing the examination and approval procedures of securities
regulatory authorities; and
(4) undergoing registration and filing procedures of company registration
authorities.
ARTICLE 6 BREACH OF CONTRACT AND REMEDIES
6.1 After the execution of this Contract, the Transferor and the Transferee
shall perform this Contract in strict compliance with the provisions
hereunder. Any Party in breach of this Contract shall be held liable
for such breach according to the provisions hereunder. In the event of
losses caused to the non-breaching Party, the breaching Party shall
indemnify the non-breaching Party for the losses and expenses.
6.2 In the event of breach of this Contract by any Party, the non-breaching
Party shall have the right to take one or more of the following
remedial measures to protect its rights:
(1) suspension of the performance of its obligations hereunder or other
relevant obligations until the elimination of such breach of
Contract, which suspension of performance of obligations by the
non-breaching Party shall not constitute the non-performance or delay
in performance of obligations by such party. A breach penalty of
0.021% of the equity transfer price for each day when such breach
persists shall be paid to the non-breaching Party.
(2) termination of this Contract by written notice, in which case, this
Contract shall be terminated on the date the written notice is
serviced to the breaching Party by the non-breaching Party; and
(3) the breaching Party shall promptly indemnify the non-breaching Party
for all losses and expenses the non-breaching Party sustained as a
result of the breach by the breaching Party, regardless whether this
Contract would continue to be performed.
6.3 The rights and remedies available under this Contract are accumulative
without excluding other rights or remedies available under the law.
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6.4 The waiver of a breach of Contract by a Party to this Contract shall be
effective only when made in writing. Any Party's failure or delay to
exercise any right or remedy shall not constitute a waiver of such
right or remedy. The partial exercise of rights and remedies by a Party
does not impair its exercise of other rights or remedies.
ARTICLE 7 EFFECTIVENESS, AMENDMENT AND TERMINATION
7.1 This Contract shall become effective upon the satisfaction of all of
the following conditions:
(1) This Contract shall have been executed by the authorized
representatives of the Parties and with their respective company
seals affixed hereto;
(2) This equity transfer shall have been approved by the administrative
authorities of state-owned assets;
(3) This equity transfer shall have been examined by and received no
objections from China Securities Regulatory Commission; and
(4) China Securities Regulatory Commission shall have exempted the
Transferees from the obligations of tender offer in connection with
Shenyang Jinbei Automotive Company Limited.
7.2 This Contract may be amended through consultation between the Parties,
or upon the occurrence of other circumstances as provided by laws and
regulations or in the covenants contained in this Contract.
7.3 Any amendment to this Contract shall be made in writing and signed by
the Parties, otherwise, no amendment shall become binding upon either
Party.
7.4 The Parties may terminate this Contract through consultation, subject
to compliance with laws.
7.5 The amendment and termination of this Contract shall not affect the
parties' right to claim damages. Any losses incurred by any Party due
to the amendment or termination of this Contract shall be compensated
by the Party that is responsible for such amendment or termination,
unless such Party is exempted from such liability pursuant to laws or
provisions of this Contract.
7.6 Upon the termination of this Contract pursuant to the above provisions,
the Transferor shall immediately return to the Transferee the paid
equity transfer proceeds together with interest and/or other amounts,
if any. In the event of breach of this Contract by any Party prior to
the termination of this Contract, the other Party shall have the right
to claim compensation according to the provisions in Article 6 hereof.
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ARTICLE 8 APPLICABLE LAW AND SETTLEMENT OF DISPUTE
8.1 The execution, effectiveness, interpretation, performance and dispute
settlement of this Contract shall be governed by the laws of the
People's Republic of China.
8.2 The Parties shall first settle the disputes arising out of or in
connection with this Contract through consultation, failing which, the
Parties agree to submit such disputes to the competent local court of
the place of performance of this Contract for resolution through
litigation.
ARTICLE 9 MISCELLANEOUS
9.1 The annexes hereto constitute an integral part of this Contract, which
shall have the same force as this Contract.
9.2 This Contract and the annexes hereto constitute a complete contract
between the Transferor and the Transferee. In any event, all
correspondences, statements, agreements or other documents prior to the
execution of this Agreement shall be subordinate to this Contract.
9.3 If any provision of this Contract is invalidated due to a conflict with
the laws applicable to this Contract, such provision shall be removed
from this Contract, provided however, such provision shall not affect
the validity of other provisions hereunder and the validity of this
Contract as a whole. The Parties shall formulate a new provision to
replace such invalid provision.
9.4 The Parties hereby acknowledge that they voluntarily enter into this
Contract and understand the rights and obligations of the Parties
hereunder, and that there is no fraudulence, threat, material
misunderstanding or obvious unfairness.
9.5 There are eight counterparts of this Contract, with each Party holding
one copy. The rest of the counterparts shall be submitted to the
approving authorities for approval and filing.
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TRANSFEROR: SHENYANG AUTOMOBILE INDUSTRY EQUITY INVESTMENT CO., LTD.
Legal Representative: /s/ Guohua He
--------------------------------
TRANSFEREE: SHENYANG JINBEI AUTOMOTIVE INDUSTRY HOLDINGS COMPANY
LIMITED
Legal Representative: /s/ Xing Hong
--------------------------------
December 29, 2003
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