Agreement on Transfer of Shares - Hurray! Solutions Ltd., Wang Qindai, Yu Qin and Zhang Chen
--------------------------------------------------------------------------------
Hurray! Solutions Ltd.
Wang Qindai
and
Yu Qin
Zhang Chen
----------
Agreement on Transfer of Shares of
Beijing Enterprise Network Technology Co., Ltd.
----------
April 8, 2004
-------------
<PAGE>
--------------------------------------------------------------------------------
This Agreement is executed on April 8, 2004 in Beijing by the following parties.
Party A: Hurray! Solutions Ltd.
Address: 305, China Resources Building, Jianguomen Beidajie, Dongcheng
District, Beijing, 100005
Legal Representative: Xiang Songzuo
Party B: Wang Qindai
Address: 305, China Resources Building, Jianguomen Beidajie, Dongcheng District,
Beijing, 100005
ID No: 110102641107155
(Party A and Party B collectively referred to as the "Transferee")
Party C: Yu Qin
Address: Room 2306, 5 SOHO Town, 88 Jianguolu, Chaoyang District, Beijing
ID No: 320581196506030459
Party D: Zhang Chen
Address: 46-7-164, Zhongguancun Nandajie, Handian District, Beijing
ID No: 1101108760130721
(Party C and Party D collectively referred to as the "Transferor")
WHEREAS:
1. Beijing Enterprise Network Technology Co., Ltd. (hereinafter "Enterprise
Network") is a limited liability company duly organized and validly existing
under Chinese laws. Its registered capital is RMB 1,100,000 yuan, of which
RMB 1,000,000
1
<PAGE>
--------------------------------------------------------------------------------
yuan is contributed by Party C, making it entitled to 91 percent shares of
Enterprise Network; RMB 100,000 yuan is contributed by Party D, making it
entitled to 9 percent shares of Enterprise Network. Transferor is legally
entitled to all shareholder rights in light of its contribution as at the
execution date of this Agreement.
2. Party A is a limited liability company duly organized and validly
existing under Chinese laws. Party B is a Chinese citizen with full capacity of
civil conduct. Party A and Party B intend to accept 100 percent shares of
Enterprise Network held by the Transferor.
3. The Transferor intends to transfer to the Transferee 100 percent shares
of Enterprise Network held by the Transferor, in which Party A accepts 91
percent shares of Enterprise Network held by Party C and 4 percent shares of
Enterprise Network held by Party D, and Party B accepts the remaining 5 percent
shares of Enterprise Network held by Party D. After completion of such share
transfer, Party A will hold 95 percent shares of Enterprise Network and Party B
will hold 5 percent shares of Enterprise Network.
4. Both Party C and Party D agree to be jointly and severally responsible
for the duties and responsibilities hereunder, and further agree that the
performance of duties by Party A and/or Party B to either Party C or Party D
pursuant to the terms and conditions of this Agreement shall be deemed as having
performed duties owed to the Transferor in entirety.
In consideration of the foregoing share transfer, the parties hereto hereby
agree as follows through friendly consultation in accordance with relevant laws
and regulations and in the spirit of mutual benefit, honesty and good faith:
I. Share Transfer
1. The Transferor agrees to transfer its shares of Enterprise Network to
the Transferee pursuant to the proportion agreed-upon under this Agreement on
the Effective Date of Share Transfer (as defined hereinafter) set forth in
Article III of this Agreement according to the terms and conditions of this
Agreement; the Transferee agrees to accept such shares pursuant to the
proportion agreed-upon under this Agreement according to the terms and
conditions of this Agreement (hereinafter "Share Transfer").
2
<PAGE>
--------------------------------------------------------------------------------
2. After Share Transfer becomes effective, the Transferee shall become the
legal owner of the shares contemplated to be transferred hereunder pursuant to
this Agreement, having all rights and obligations in respect of the shares
contemplated to be transferred hereunder (such rights including all rights,
interests and duties in respect of its contribution). The Transferor shall not
have any right, obligation or responsibility in respect of the shares
contemplated to be transferred hereunder.
3. After Share Transfer becomes effective, each shareholder's contribution
amount and its proportion in the registered capital of Enterprise Network are as
follows:
Party A: RMB 1,045,000, accounting for 95 percent of total
registered capital of Enterprise Network;
Party B: RMB 55,000, accounting for 5 percent of total registered
capital of Enterprise Network
4. The parties hereto agree to effect all procedures in respect of Share
Transfer according to the terms and time provided under this Agreement,
including without limitation securing resolutions of shareholders' meeting and
the Board consenting transfer/acceptance of shares respectively, resolutions of
shareholders' meeting of Enterprise Network consenting Share Transfer, and the
commitment letter of the Transferor as shareholders of Enterprise Network
consenting Share Transfer and waiving their preemption rights.
5. Commencing from the Effective Date of Share Transfer, the Transferor
shall transfer to the Transferee any and all materials held by the Transferor
necessary for appropriate exercise of shareholder rights by the Transferee,
including without limitation resolutions and minutes of shareholders meeting and
the Board of Enterprise Network, all seals of the company (including without
limitation corporate seal, finance seal and contract seal), approval documents
of the company, business license (originals and copies), approvals,
certificates, checkbooks, materials relating to bank account and changes
thereto, property title documents and approvals.
II. Share Transfer Price and Payment
1. The parties hereto agree that the price of Share Transfer is
RMB28,969,500 (RMB Twenty Eight Million Nine Hundred and Sixty Nine Thousand
Five Hundred
3
<PAGE>
--------------------------------------------------------------------------------
Only).
2. The parties hereto agree that the Transferee shall pay to the Transferor
by telegraphic transfer within five working days after execution of this
Agreement 50 percent of the price of Share Transfer, i.e., RMB14,484,750 (RMB
Fourteen Million Four Hundred and Eight Four Thousand Seven Hundred and Fifty
Only) ("First Payment").
Within five working days after the industrial and commercial bureau accepts
application of Enterprise Network for change of registration, the Transferee
shall pay to the Transferor by telegraphic transfer 30 percent of the price of
Share Transfer, i.e., RMB8,690,850 (RMB Eight Million Six Hundred and Ninety
Thousand Eight Hundred and Fifty Only) ("Second Payment").
Within five working days after the completion of change of registration at
the industrial and commercial bureau in connection with the Share Transfer, the
Transferee shall pay to the Transferor by telegraphic transfer the remaining 20
percent of the price of Share Transfer, i.e., RMB5,793,900 (RMB Five Million
Seven Hundred and Ninety Three Thousand Nine Hundred Only).
If Share Transfer fails to be effective within 90 days after execution of
this Agreement by reasons other than those on the part of the Transferee after
the Transferee effected the First Payment to the Transferor, the Transferor
shall refund the Transferee full amount of First Payment at the earlier of the
following dates:
(1) within five workings after the Transferor is expressly informed of
the failure of this Agreement to be effective as scheduled;
(2) 90 days after execution of this Agreement.
III. Effective Date of this Agreement and of Share Transfer
1. This Agreement shall be effective upon execution by the parties hereto
or their respective authorized representatives and affixture of seals.
2. Share Transfer contemplated under this Agreement shall be effective upon
realization of all conditions precedent set forth below, and the date of
realization shall be the Effective Date of Share Transfer:
(1) this Agreement is executed and affixed with seal by the parties
hereto or
4
<PAGE>
--------------------------------------------------------------------------------
their respective authorized representatives;
(2) the Share Transfer contemplated hereunder has been approved by
the shareholders meeting of Enterprise Network;
(3) each of Party C and Party D has issued commitment letter,
undertaking to waive the preemption right in respect of the
shares to be transferred by the other party; and
(4) other legal documents required under relevant Chinese laws for
the Share Transfer have been appropriately secured and relating
procedures or formalities have been validly effected.
3. The Transferor agrees to provide to the Transferee upon execution of
this Agreement the resolution of the shareholders meeting of Enterprise Network
consenting the Share Transfer and the respective commitment letter of Party C
and Party D undertaking to waive the preemption right in respect of the shares
to be transferred by the other Party. The Transferee agrees to provide to the
Transferor the resolution of the shareholders meeting of Party A to consent the
Share Transfer.
4. The parties hereto shall, in good faith, complete any activities
necessary for effecting the Share Transfer provided hereunder within three
months after this Agreement is effective or any time otherwise agreed upon by
the parties hereto, including without limitation executing or causing third
party to execute any document or application, or securing any relevant approval,
consent or permit, so as to effect performance of this Agreement.
5. The Transferor agrees that the Share Transfer shall not be effective
until all conditions precedent set forth in Section 2 of this Article are
realized within agreed-upon time. If any of such conditions fails to be realized
according to the terms or within the time provided hereunder due to the error of
any party, such party shall be liable to compensate any losses or expenses thus
incurred to the other party.
6. The parties hereto shall effect procedures for change of registration at
relevant industrial and commercial bureau 10 working days after this Agreement
becomes effective, but no later than 20 working days thereafter.
IV. Representations, Covenants and Warranties of the Transferor
1. Enterprise Network is a limited liability company duly organized and
5
<PAGE>
--------------------------------------------------------------------------------
validly existing under Chinese laws. The Transferor has duly paid up its
subscribed capital in light of capital contribution percentage and secured
corresponding share rights according to laws. The Transferor has performed all
of its obligations as shareholder in strict compliance with articles of
association of Enterprise Network
2. The Transferor has all rights, powers and authorities to enter into and
perform all duties and responsibilities under this Agreement. This Agreement is
legally binding upon any party of the Transferor upon execution.
3. The Transferor legally and actually owns the shares contemplated to be
transferred under this Agreement, and is capable in right and action to transfer
such shares, and has secured all necessary approvals therefor.
4. Execution or performance of this Agreement by the Transferor does not
breach laws, articles of association, contracts, agreements or any other legal
documents which the Transferor is subject to.
5. The shares contemplated to be transferred are complete and have not been
pledged, subject to any preferential right, or any third party interest, or have
any other encumbrance.
6. The balance sheet of Enterprise Network and other financial materials
and information provided by the Transferor to the Transferee are complete, true
and accurate. Except for the liabilities (including actual liabilities and
contingent liabilities) disclosed by the Transferor to the Transferee,
Enterprise Network has no other material liabilities ("Undisclosed Material
Liabilities"). If the Transferee or Enterprise Network suffers any loss due to
Undisclosed Material Liabilities, the Transferor shall be liable to all damages
therefrom. The Undisclosed Material Liabilities mentioned above means any
liability in excess of RMB 100,000 (including RMB 100,000).
7. There does not exist any contractual arrangements between Enterprise
Mobile and Enterprise Network that will result in Enterprise Mobile having any
indirect control of Enterprise Network.
8. As of the date of execution hereof, there exists no breach of law,
material administrative punishment or any possibility of such punishment,
proceedings or potential proceedings in respect of tax, accounting, employment,
insurance and property of Enterprise Network
9. As of effective date of this Agreement until Effective Date of Share
6
<PAGE>
--------------------------------------------------------------------------------
Transfer (including effective date of this Agreement and Effective Date of Share
Transfer), unless prior written consent is secured from the Transferee, the
Transferor shall warrant that:
(1) Enterprise Network shall keep normal business operation, and any
expenditure in the amount higher than RMB 10,000 (including
RMB 10,000) shall be notified to the Transferee two working days
in advance and subject to the approval of the Transferee;
(2) Except for any change resulting form normal operations of
Enterprise Network, the assets and financial position of
Enterprise Network shall not undertake any material change
(including without limitation assignment, imposition of any
mortgage, pledge, or any third party interest);
(3) Enterprise Network shall not distribute investment gains to the
Transferor;
(4) Enterprise Network shall not change its share equity structure or
articles of association;
(5) Assets of Enterprise Network shall not undertake any material
change in quantity and structure (including without limitation
assignment, imposition of any mortgage, pledge, or any third
party interest);
(6) The Transferor shall use its best endeavors to protect the
operation of Enterprise Network from any adverse impact; and
(7) Not to appoint, engage, or remove any director, officer, or other
key employee.
10. Any representation or warranty made by the Transferor under this
Agreement contains no material falsehood or any omissions.
V. Representations, Covenants and Warranties of the Transferee
1. The Transferee is a legal person duly organized and validly existing
under Chinese laws or a Chinese citizen with full capacity of civil conduct.
2. The Transferee has full rights to conduct the matters in respect of
accepting shares from the Transferor as provided under this Agreement, and has
secured all approvals and/or authorizations in respect of execution and
performance of this
7
<PAGE>
--------------------------------------------------------------------------------
Agreement.
3. Execution or performance of this Agreement by the Transferee is in no
breach of the laws, articles of association, contracts, agreements or other
legal documents which the Transferee is subject to.
4. The Transferee shall perform the obligation of paying the price of Share
Transfer to the Transferor in strict compliance with the terms of this
Agreement.
VI. Confidentiality
Unless expressly required by relevant Chinese laws and regulations,
articles of association, or other applicable laws and regulations, no party
shall disclose the terms of this Agreement to any third party other than the
parties hereto without the prior written consent of the other parties before
completion of the transaction contemplated hereunder. This provision does not
apply to affiliates of and professionals engaged by the parties hereto.
VII. Fees and Expenses
1. The parties hereto agree to bear their respective fees incurred for
engagement of lawyers, accountants, appraisers, financial advisors and other
professionals.
2. The Transferee agrees that, after the Transferor makes duly payment of
income tax payable in respect of the Share Transfer, the Transferee shall
reimburse 50 percent of the tax actually paid by the Transferor. If the
Transferee suffers any economic loss due to failure on the part of the
Transferor to duly file tax returns in respect of this Agreement, the Transferor
agrees to fully compensate such damages.
3. Any other expenses occurred in connection with the Share Transfer
(including without limitation the expenses relating to change of registration at
industrial and commercial bureau) shall be equally shared by the Transferor and
the Transferee.
VIII. Other Matters relating and Amendment to this Agreement
1. The parties hereto agree to further negotiate other matters in respect
of this Agreement after execution of this Agreement and enter into supplemental
agreement
8
<PAGE>
--------------------------------------------------------------------------------
in writing. Such supplemental agreement constitutes an integral part of this
Agreement.
2. Any amendment to this Agreement shall be in writing and signed by the
parties hereto. Any amendment or addition shall constitute an integral part of
this Agreement.
IX. Breach Liability
1. Any party hereto shall be deemed in breach of this Agreement if such
party:
(1) fails to perform any obligation under this Agreement;
(2) breaches any of its representation, covenant or warranty made
under this Agreement; or
(3) its representation or warranty made under this Agreement is
inconsistent with facts or misleading (in good faith or in bad
faith).
2. Under occurrence of such breach, the non-breaching party has the right
to require the breaching party to correct within 10 days; if the breaching party
fails to correct within the specified time, the non-breaching party has the
right to terminate this Agreement and claim damages from the breaching party.
3. The parties hereto covenant to each other that without prejudice to the
right to claim damages by the non-breaching party against the breach of
covenant, warranty or obligation by the breaching party under this Agreement,
the breaching party shall be liable to the following damages as required by the
non-breaching party:
(1) A certain sum of damages which is sufficient to restore the
parties to the status as if the Agreement is not breached;
(2) Expenses or costs directly or indirectly incurred by the
non-breaching party arising out of the breach of the Agreement
(including without limitation litigation, arbitration and/or
lawyer fees reasonably incurred by the non-breaching party
therefrom).
X. Dispute Resolution
1. Any dispute arising out of or relating to this Agreement shall be
settled by the
9
<PAGE>
--------------------------------------------------------------------------------
parties hereto through friendly consultation.
2. If any dispute is not settled through friendly consultation by the
parties hereto within thirty days after its occurrence, such dispute shall be
submitted to the China International Economic and Trade Arbitration Commission
for arbitration according to its rules then in effect. The award of arbitration
is final and binding upon the parties hereto. The seat of the arbitration is in
Beijing, China.
3. If any provision of this Agreement shall be determined to be invalid
according to relevant laws, the remaining of this Agreement shall continue to be
valid and enforceable.
XI. Applicable Laws
The execution, validity, interpretation and performance of this Agreement,
and dispute resolution thereof shall be governed by relevant laws of China.
XII. Agreement Right
No party shall assign its rights and obligations under this Agreement
without prior written consent of the other party. Respective successors and
permitted assigns of the parties hereto are subject to provisions of this
Agreement.
XIII. Force Majeure
1. Force Majeure means any occurrence that is uncontrollable, unpredictable
or, if predictable, unavoidable by the parties hereto, causing hindrance, impact
or delay on the part of either party to perform all or part of its obligations
under this Agreement. Such occurrence includes without limitation earthquake,
typhoon, flood, fire or other acts of God, war, riot, strike or other similar
occurrences. The parties hereto agree and acknowledge that non-performance of
this Agreement on the part of either party due to Force Majeure does not
constitute the breach provided under Section 1 of Article IX, nor shall the
non-performing party be liable to any damages or compensation therefor.
2. In occurrence of Force Majeure, the affected party shall notify the
other party
10
<PAGE>
--------------------------------------------------------------------------------
immediately by the most expedient means possible and provide within 15 days
documents evidencing the particulars of such occurrence and reasons for
non-performance of all or part of this Agreement or delay performance of this
Agreement. Then the parties hereto shall negotiate as to whether to delay
performance of or terminate this Agreement.
XIV. Entire Agreement
This Agreement constitutes all representations and agreements between the
parties hereto and supersedes all prior oral and written representations,
warranties, understandings and agreements between the parties relating to the
subject matter of this Agreement. The parties hereto agree and acknowledge that
any representation or covenant that is not provided under this Agreement shall
not constitute basis of this Agreement and, therefore, shall not be the basis to
determine respective rights and obligations of the parties or to interpret terms
and conditions of this Agreement.
XV. Notices
All notices required under this Agreement shall be written in Chinese and
delivered by registered mail, telecopy or other telecommunication means. Notices
shall be deemed duly given upon arrival at the registered address of the
recipient. When delivered by registered mail, the notice shall be deemed to be
duly given on the day of receipt noted on the return receipt. When delivered by
telecopy, the notice shall be deemed to be duly given when the delivery is
confirmed by the telecopy machine.
Party A: Hurray! Solutions Ltd.
Address: 305, China Resources Building, Jianguomen Beidajie,
Dongcheng District, Beijing
Zip Code: 100005
Telephone: 8610-65188989
Fax: 8610-85191531
Person to contact: Wang Qindai
11
<PAGE>
--------------------------------------------------------------------------------
Party B: Wang Qindai
Address: 305, China Resources Building, Jianguomen Beidajie,
Dongcheng District, Beijing,
Zip Code: 100005
Telephone: 8610-65188989
Fax: 8610-85191531
Party C: Yu Qin
Address: [Room 1702, Tower C, The Grand Pacific Building, A8,
Guang Hua Road, Chao Yang District, Beijing,]
Zip Code: [100026]
Telephone: [010 - 65815120 - 819]
Fax: [010 - 65832334]
Party D: Zhang Chen
Address: [Room 1702, Tower C, The Grand Pacific Building, A8,
Guang Hua Road, Chao Yang District, Beijing,]
Zip Code: [100026]
Telephone: [010 - 65815120 - 809]
Fax: [010 - 65832334]
XVI. Counterparts
This Agreement is made in Chinese in six original copies. Each party shall
hold one original copy and the remaining copies shall be used for the purpose of
registration at industrial and commercial bureau. Each copy shall have the same
legal effect.
XVII. Supplemental Agreement or Attachment
Upon agreement and valid execution of the parties hereto, other document
which
12
<PAGE>
--------------------------------------------------------------------------------
supplements or amends this Agreement is an attachment to this Agreement and
constitutes an integral part of this Agreement.
13
<PAGE>
--------------------------------------------------------------------------------
Execution Page
(No body text)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the date first written above.
Party A: Hurray! Solutions Ltd.
Legal/Authorized Representative: Xiang Songzuo
Party B: Wang Qindai
Authorized Representative:
Party C: Yu Qin
Authorized Representative:
Party D: Zhang Chen
Authorized Representative:
14