EXHIBIT 10.23
ASSET TRANSFER AGREEMENT
among
Focus Media Digital Information Technology (Shanghai) Co., Ltd.
and
Shanghai New Focus Media Advertisement Co., Ltd.
Dated as of
December 31 2005
ASSET TRANSFER AGREEMENT
This ASSET TRANSFER AGREEMENT (this "AGREEMENT"), dated as of December 31 2005,
is entered into by and between the following parties:
(1) FOCUS MEDIA DIGITAL INFORMATION TECHNOLOGY (SHANGHAI) CO., LTD., a company
of limited liabilities incorporated under the laws of China, with its
legal address at Xxxx X00, Xxxxx 00, Xx.000, Xxxxxxx Xxxx, Xxxxxxxxx
Xxxxxxxx, Xxxxxxxx (hereinafter, the " SELLER");
(2) SHANGHAI NEW FOCUS MEDIA ADVERTISEMENT CO., LTD., a company of limited
liabilities incorporated under the laws of China, with its legal address
at Xxxx X00, Xxxxx 00, Xx.000, Xxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx
(hereinafter, the " BUYER").
WHEREAS:
The Seller, as a technology company, owns the assets and equipments for the
operation of LCD advertisement. The Seller desires to sell to the Buyer, and the
Buyer desires to purchase from the Seller, the assets in connection with the
business of the seller, upon the terms and subject to the conditions set forth
in this Agreement.
THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITION
1.1 Unless otherwise stipulated in the provisions or in the context of
this Agreement, the following terms shall bear the meaning as
follows:
"TRANSFER ASSETS" shall mean the Seller's assets and equipments
listed in Evaluation Report as Appendix II.
"CLOSING" shall mean the completion of the sell and purchase of the
Transfer Assets pursuant to the Article 4;
"CLOSING DATE" shall mean the date of Closing;
"RESTRICTION OF RIGHTS" shall mean all the pledge, mortgage, lien,
security rights, preemption, option or any other restriction of
rights or third party rights or any claim of rights (except for (i)
lien raised or result from the repair or other similar situation
during the ordinary course of business, and (ii) general ownership
appointment and
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ownership reservation clause reached during the ordinary course of
business for the purchase of goods);
"PARTIES" shall mean the parties to this Agreement and their
respective successors or ASSIGNEES;
"PRC" shall mean the People's Republic of China, for the purpose of
this Agreement, not including Hong Kong, Macao Special
Administrative Region and Taiwan;
"WARRANT" shall mean all the representations, warrants and
undertakings included or in relation to the Article 6 and Appendix
I; and,
"RMB" shall mean the legal currency of PRC.
1.2 The articles and appendix cited in this Agreement shall be the
articles and appendix of this Agreement (unless otherwise stipulated
in the context). The context and appendix constitute the whole
Agreement.
1.3 The titles of the articles contained herein shall be for convenience
only, and shall not affect the interpretation of the provisions
hereof.
1.4 If allowed by the context, the wording as of "Seller" and "Buyer"
shall include the Seller and Buyer's respective successors,
authorized representatives and the assignees with their consent.
2. SELL OF THE TRANSFER ASSETS
2.1 Restricted by the provisions of this Agreement, the Seller shall be
the legal owner to sell and cause the Buyer to obtain all the
Transfer Assets without any restriction of rights hereupon.
2.2 Except for the assets and obligations clearly specified in the
Agreement, under this Agreement, the Buyer shall not be deemed to be
transferred of other assets or obligations from the Seller, nor be
deemed to undertake any duty or obligations in relation to such
assets and obligations.
3. CONSIDERATION
The Parties understand that the sell and purchase of the Transfer
Assets under this Agreement shall for the interest of the Parties;
and the Parties acknowledge that the consideration, which is full,
non-gratuitous and
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made with good faith, for the execution and the performance of this
Agreement, has been accepted by the Parties. Based on such
understanding, the Parties agree that the consideration payable by
the Buyer under this Agreement shall be the evaluation price in the
Evaluation Report, i.e. RMB 251,499,950.11 in total; and the Seller
undertakes that, except for the consideration stipulated above, it
shall not, by virtue of any other reason, request the Buyer to pay
other consideration in respect of the execution and the performance
of this Agreement.
4. OBLIGATION OF THE SELLER
4.1 In case that no breach to the Warrant, the Seller shall undertake:
4.1.1 any indebtedness, duty and obligation on the Transfer Assets
existing before and on the Closing Date raised by virtue of
any restriction of rights, regardless of such obligation
raised before or after the Closing Date; and
4.1.2 any third party's claim or obligation in respect of the
Transfer Assets result from any do or no-to-do by the Seller
before or on the Closing Date.
5. WARRANT
5.1 The Seller hereby represents warrants and undertakes to the Buyer in
respect of the factuality and accuracy of the Warrant.
5.2 The Seller hereby acknowledges that the Buyer executes this
Agreement due to its believing of the Warrant under this Agreement
and the Buyer executes this Agreement based on such Warrant.
5.3 The Seller hereby warrants that at any time it shall indemnify the
Buyer for and against any loss, damage, interest, cost and expense,
under the circumstances that such indemnification will not restrict
any rights of the Buyer or infringe any rights of claim of the Buyer
based on such rights.
5.4 Each Warrant shall be separately made and independent to each other,
unless clear contrarily stipulated, each Warrant shall not be
restricted by other Warrant or any provision of this Agreement or be
deduced from any Warrant or any provision of this Agreement.
5.5 The interest under this Article can be transferred without
restriction in a
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whole or partially transferred by the one who enjoys the interest at
the time of such transfer.
5.6 Regardless of the Closing, any Warrant and any provision of this
Agreement, which are not completely performed, shall be remain
effective.
6. BREACH
6.1 The Parties agree and confirm that, if any party (hereinafter the
"DEFAULTING PARTY") breaches substantially any of the provisions
herein or omits substantially to perform any of the obligations
hereunder, or fails substantially to perform any of the obligations
under this Agreement, such a breach or omission shall constitute a
default under this Agreement (hereinafter a "DEFAULT"), then any
party of the Non-Defaulting Party ("NON-DEFAULTING PARTY") shall
have the right to require the Defaulting Party to rectify such
Default or take remedial measures within a reasonable period. If the
Defaulting Party fails to rectify such Default or take remedial
measures within such reasonable period or within ten (10) days of
the other Party's notifying the Defaulting Party in writing and
requiring it to rectify the Default, then Non-Defaulting Party shall
have the right at its own discretion to (1) terminate this Agreement
and require the Defaulting Party to indemnify it for all the damage;
or (2) request mandatory performance of the obligations of the
Defaulting Party hereunder and require the Defaulting Party to
indemnify it for all the damage.
6.2 Notwithstanding any other provisions herein, the validity of this
Article shall stand disregarding the suspension or termination of
this Agreement.
7. FORCE MAJEURE
If the performance or duly performance of one party is directly
affected by earthquake, typhoon, flood, war, computer virus, flaw in
tool software, the attack of hacker on the internet, change of
policy and law and other event which is unforeseeable, unavoidable
and insurmountable, the party affected by the Force Majeure shall at
once announce the other party of the Force Majeure by facsimile and,
within thirty (30) days, provide the other party with the detailed
information of the Force Majeure and a valid evidencing document
issued by the relevant notarization organization, stating the
reasons that the Agreement cannot be performed or would be performed
with delay. The Parties, by reference to the influence of the Force
Majeure for the performance of this Agreement, shall thereby make
consultation on whether or not to partially release the obligations
of one party from
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