Share Subscription Agreement - Xinhua Finance Media Ltd. and Accord Group Investments Ltd.
DATED THE 17TH DAY OF JANUARY 2006
XINHUA FINANCE MEDIA LIMITED
AND
ACCORD GROUP INVESTMENTS LIMITED
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SHARE SUBSCRIPTION AGREEMENT
IN RESPECT OF SHARES IN THE CAPITAL OF
ACCORD GROUP INVESTMENTS LIMITED
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SOLICITORS
(PRESTON GATES ELLIS LOGO)
35th Floor, Two International Finance Centre
8 Finance Street
Central, Hong Kong
Tel: (852) 2511 5100 / 2230 3500
Fax: (852) 2511 9515 / 2899 2996
Website: www.prestongates.com
Our ref: 53366-00001/CSMN/VSKM
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TABLE OF CONTENTS
Page
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1. Definitions........................................................... 3
1.1 Definitions.................................................... 3
2. Subscription and Sale of Subscription Shares.......................... 5
2.1 Subscription and Sale.......................................... 5
2.2 Closing........................................................ 5
2.3 Closing Deliveries by the Company.............................. 5
2.4 Closing Deliveries by the Investor............................. 5
3. Representations, Warranties and Covenants of the Company.............. 5
3.1 Organisation................................................... 5
3.2 Capitalisation................................................. 5
3.3 Subsidiaries................................................... 6
3.4 Authorisation.................................................. 6
3.5 No Conflict.................................................... 6
3.6 Governmental Consents and Approvals............................ 6
3.7 Issuance of Subscription Shares................................ 6
3.8 Rights of Subscription Shares.................................. 7
3.9 Material Liability............................................. 7
3.10 The Group Structure Agreements................................. 7
3.11 Litigation..................................................... 7
3.12 Winding Up, etc................................................ 7
3.13 Material Contracts............................................. 7
3.14 Brokerage or Commissions....................................... 8
3.15 Full Disclosure................................................ 8
3.16 Absence of Questionable Payments............................... 8
3.17 The Closing Deliverable Agreements............................. 8
4. Representations, Warranties and Covenants of the Investor............. 8
4.1 Organisation, Good Standing and Qualification.................. 8
4.2 Authorisation.................................................. 8
4.3 Power and Authority............................................ 8
4.4 Purchase Entirely for Own Account.............................. 8
4.5 Investment Experience.......................................... 9
4.6 Disclosure of Information...................................... 9
4.7 Compliance with Laws........................................... 9
5. Conditions of Investor's Obligations at the Closing................... 9
5.1 Representations and Warranties................................. 9
5.2 Performance.................................................... 9
5.3 Proceedings and Documents...................................... 9
5.4 Approvals...................................................... 9
6. Conditions of the Company's Obligations at the Closing................ 10
6.1 Representations and Warranties................................. 10
7. Termination........................................................... 10
7.1 Termination.................................................... 10
7.2 Effect of Termination.......................................... 10
8. Miscellaneous......................................................... 11
8.1 Survival of Warranties......................................... 11
8.2 Successors and Assigns......................................... 11
8.3 Governing Law and Jurisdiction................................. 11
8.4 Counterparts................................................... 11
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8.5 Titles and Subtitles........................................... 11
8.6 Notices........................................................ 11
8.7 Finder's Fee................................................... 11
8.8 Expenses....................................................... 11
8.9 Severability................................................... 11
8.10 Entire Agreement............................................... 12
Execution.................................................................. 13
SCHEDULE A -- Corporate Details of the Company............................. 14
SCHEDULE B -- Schedule of Subsidiaries..................................... 16
SCHEDULE C -- Schedule of Group Structure Agreements....................... 18
SCHEDULE D -- Schedule of Material Liabilities............................. 19
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SHARE SUBSCRIPTION AGREEMENT
THIS SHARE SUBSCRIPTION AGREEMENT (this "AGREEMENT") is made on 18 January 2006
by and between:
1. XINHUA FINANCE MEDIA LIMITED, a company incorporated under the laws of the
Cayman Islands and with a registered address at Century Yard, Cricket
Square, Hutchins Drive, P.O. Box 2681GT, George Town, Grand Cayman, Cayman
Islands, British West Indies (the "Investor"); and
2. ACCORD GROUP INVESTMENTS LIMITED, a company incorporated under the laws of
the British Virgin Islands with a registered address at Offshore
Incorporations Limited, P.O. Box 957, Offshore Incorporations Centre, Road
Town, Tortola, British Virgin Islands (the "COMPANY").
RECITALS
WHEREAS, the Investor desires to subscribe for and purchase, and the Company
wishes to issue and sell to the Investor, the Subscription Shares for the
Subscription Price.
NOW, THEREFORE, in consideration of the premises and the mutual covenants set
forth herein, the Investor and the Company do hereby agree as follows:
1. DEFINITIONS
1.1 Definitions. The following terms, as used herein, have the following
meanings:
"AFFILIATES" of a specified Person means any other Person
that, directly or indirectly, through one or
more intermediaries, Controls, is Controlled
by, or is under common Control with, such
specified Person or, in the case of a natural
Person, such Person's spouse, parents and
descendants (whether by blood or adoption and
including stepchildren);
"AGREED FORM" means, in relation to any document, the form of
that document which has been agreed upon by
each of the parties hereto or their legal
advisors before Closing;
"BOARD" means the Board of Directors of the Company;
"BUSINESS DAY" means any Monday, Tuesday, Wednesday, Thursday
and Friday on which banks in Hong Kong are not
required or permitted by laws to be closed;
"CLOSING" shall have the meaning provided in Clause 2.2;
"CLOSING DATE" shall have the meaning provided in Clause 2.2;
"CLOSING DELIVERABLE
AGREEMENTS" shall have the meaning provided in Clause 2.3;
"CONTROL", "CONTROLLED" (or any correlative term) means the possession,
directly or
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indirectly, of the power to direct or cause the
direction of the management policies of a
Person, whether through the ownership of voting
securities, by contract, credit arrangement or
proxy, as trustee, executor, agent or
otherwise. For the purpose of this definition,
a Person shall be deemed to Control another
Person if such first Person, directly or
indirectly, owns or holds more than 50% of the
voting equity interests in such another Person;
"DIRECTORS" means the members from time to time of the
Board;
"GROUP" means the Company and the companies set out in
Schedule B and a "GROUP COMPANY" means any
member of the Group;
"GROUP STRUCTURE AGREEMENTS" means the contracts agreements and documents as
set out in Schedule C;
"HK$" means the lawful currency of Hong Kong;
"HONG KONG" means the Hong Kong Special Administrative
Region of the People's Republic of China;
"MATERIAL ADVERSE CHANGE" means any event or circumstance occurs which
might reasonably be expected to have a material
adverse effect on the prospects, business,
operations or financial condition of the Group
taken as a whole or that would materially
affect the ability of any of the Group
Companies or any Person who is a party to any
of the Group Structure Agreements to perform
its material obligations under any of the Group
Structure Agreements;
"PERSON" or "PERSONS" means any natural person, corporation, company,
association, partnership, organization,
business, firm, joint venture, trust,
unincorporated organization or any other entity
or organization, and shall include any
governmental authority;
"PRC" means the People's Republic of China;
"SHARES" means the ordinary shares of US$1.00 each in
the capital of the Company;
"SINO" means Sino Investment Holdings Limited, a
company incorporated under the laws of the
Commonwealth of the Bahamas with registration
number 141019B and a registered address at
Charlotte House, Charlotte Street, P.O. Box
N-341, Nassau, Bahamas;
"SUBSCRIPTION PRICE" means US$440,000;
"SUBSCRIPTION SHARES" means the 19 Shares subscribed for by the
Investor under this Agreement, which shall
represent 19% of the issued and outstanding
share capital of the Company immediately
following Completion;
"$" and "US DOLLARS" means the lawful currency of the United States
of America;
"WFOE" means New China Media Co. Limited
[Chinese Characters],
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[Chinese Characters] a wholly foreign owned
enterprise established in the PRC as a
wholly-owned subsidiary of the Company.
2. SUBSCRIPTION AND SALE OF SUBSCRIPTION SHARES
2.1 Subscription and Sale. Subject to the terms and conditions set out in this
Agreement, the Investor agrees with the Company to subscribe for and
purchase at the Closing, and the Company agrees to issue and sell to the
Investor at the Closing, the Subscription Shares for the Subscription
Price.
2.2 Closing. As promptly as practicable following the satisfaction or, if
permissible, waiver of the conditions set forth in Clauses 5 and 6 hereof
(or such other date as may be agreed by the Company and the Investor), the
subscription and sale of the Subscription Shares (the "CLOSING") shall take
place at the offices of the Company at 2003-4 Vicwood Plaza, 199 Des Voeux
Road Central, Hong Kong Special Administrative Region, the People's
Republic of China, or at such other time and place as the Company and the
Investor mutually agree in writing. The date and time of the Closing are
herein referred to as the "CLOSING DATE".
2.3 Closing Deliveries by the Company. At the Closing, the Company shall issue
the Subscription Shares to the Investor as fully-paid shares and shall
enter the name of the Investor in the register of members of the Company as
the holders of the Subscription Shares and shall deliver to the Investor
(unless delivered prior to the Closing):
(i) a duly issued share certificate of the Company dated the Closing Date
and issued in the name of the Investor in respect of the Subscription
Shares; and
(ii) a copy of each of the duly executed Group Structure Agreements.
The agreements referred to under sub clauses 2.3(i) and 2.3(ii) shall be
referred to as the "CLOSING DELIVERABLE AGREEMENTS."
2.4 Closing Deliveries by the Investor. At the Closing, the Investor shall make
payment of the Subscription Price payable by it in respect of the
Subscription Shares by wire transfer in US dollars in immediately available
funds to an account specified by the Company.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
hereby represents, warrants and covenants to each Investor that:
3.1 Organisation. Each of the Group Companies is a limited liability company
duly incorporated and validly existing under the laws of its jurisdiction
of incorporation and has all requisite corporate power and authority to own
its assets and to carry on its business as now conducted and, with respect
to the Company, as proposed to be conducted pursuant to the terms of the
Group Structure Agreements.
3.2 Capitalisation. Immediately prior to Closing the authorised capital of the
Company shall be US$50,000 divided into 50,000 ordinary shares of US$1.00
each and the issued share capital of the Company immediately prior to
Closing shall be as set out in Schedule A Part I. Immediately following
Closing the issued share capital of the Company will be as set out in
Schedule A Part II.
3.3 Subsidiaries. The Company does not presently own or control, directly or
indirectly, any interest in any other corporation, association, or other
business entity, and is not a participant in any joint venture,
partnership, or similar arrangement, except as set out in Schedule B. The
particulars of each of the Group Companies set out in Schedule B are true
and accurate in all respects and the percentage of the share capital showed
therein as owned or controlled by the
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Company is beneficially owned free from all encumbrance, save as contained
in the Group Structure Agreements. Save as expressly provided in the Group
Structure Agreements, there is no agreement or arrangement in force which
calls for the present or future issue or sale of, or grant to any person
the right (whether conditional or otherwise) to call for the issue, sale or
transfer of any share or loan capital of any of the Group Companies
(including any option, notes, warrants or other securities or rights
convertible or ultimately convertible into shares or equity interests in
any of the Group Companies).
3.4 Authorisation. All corporate action on the part of the Company required for
the authorisation, execution and delivery of this Agreement and the
Shareholders Agreement will be taken prior to Closing and the performance
of all obligations of the Company under each of these and the
authorisation, issuance (or reservation for issuance), sale and delivery of
the Subscription Shares has been taken or will be taken prior to the
Closing, and this Agreement constitutes the valid and legally binding
obligations of the Company, enforceable in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganisation,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
principles.
3.5 No Conflict. The execution, delivery and performance of this Agreement and
the Shareholders Agreement by the Company do not and will not (a) violate,
conflict with or result in the breach of any provision of the Amended and
Restated Memorandum and Articles of Association (or similar organizational
documents) of the Company, or (b) conflict with or violate any law or
governmental order applicable to either the Company or any other Group
Company or any party to any of the Group Structure Agreements or any of the
assets, properties or businesses of the Company or any other Group Company,
or (c) conflict with, result in any breach of, constitute a default (or
event which with the giving of notice or lapse of time, or both, would
become a default) under, require any consent under, or give to others any
rights of termination, amendment, acceleration, suspension, revocation or
cancellation of, or result in the creation of any encumbrance on any of the
assets pursuant to any note, bond, mortgage, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or arrangement to
which either the Company or any other Group Company is a party or by which
any of such assets or properties is bound or affected including, without
limitation, any of the Group Structure Agreements.
3.6 Governmental Consents and Approvals. The execution, delivery and
performance of this Agreement by the Company do not and will not require
any consent, approval, authorization or other order of, action by, filing
with or notification to, any governmental authority in Hong Kong or the
PRC.
3.7 Issuance of Subscription Shares. The Subscription Shares, when issued,
delivered and paid for in accordance with this Agreement, will be duly and
validly issued, fully paid and non-assessable and free of any lien or
encumbrance. Except as set forth in the Shareholders Agreement, the
Articles of Association and the laws and regulations of any jurisdiction
that may apply to any holder of shares in the Company, the Subscription
Shares are not subject to any restrictions on transfer.
3.8 Share Rights. The Subscription Shares shall have the rights as set out in
the Articles of Association.
3.9 Liabilities. Save as disclosed in Schedule D, no Group Company has any
material liability (actual, contingent or otherwise).
3.10 The Group Structure Agreements. (a) To the best of the knowledge and belief
of the Company having made reasonable enquiries, each of the Group
Structure Agreements has
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been duly executed, is in full force and effect and constitutes the valid
and legally binding obligation of the parties thereto, enforceable in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganisation, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally, and (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable principles. (b) To the best of the
knowledge and belief of the Company having made all reasonable enquiries,
the execution, delivery and performance of each of the Group Structure
Agreements by the parties thereto do not and will not conflict with or
violate any law, regulation or governmental order in the PRC. (c) To the
best of the knowledge and belief of the Company having made all reasonable
enquiries, the execution, delivery and performance of each of the Group
Structure Agreements by the parties thereto do not and will not require any
consent, approval, authorization or other order of, action by, filing with
or notification to, any governmental authority in the PRC or, if any such
consent, approval, authorization, order, action, filing or notification is
required, they have been obtained or made or will be obtained or made prior
to the Closing.
3.11 Litigation. There is no litigation, arbitration, prosecution or other legal
proceedings in progress or pending or threatened against any Group Company
or any party to any of the Group Structure Agreements nor is there any
claim or, to the best of the knowledge and belief of the Company after
having made due enquiries, any fact which may give rise to a claim against
any Group Company or any party to any of the Group Structure Agreements
which, individually or in aggregate, may have or have had a material effect
on the financial or business conditions or prospects (whether or not
arising in the ordinary course of business) of the Group taken as a whole
or which is material in the context of the subscription for Subscription
Shares.
3.12 Winding up, etc. There are no bankruptcy, winding-up, receivership,
administration or other similar proceedings in progress or pending in
respect of any Group Company or, to the best of the knowledge and belief of
the Company after having made due enquires, any Person (other than a Group
Company) who is a party to any of the Group Structure Agreements.
3.13 Material Contracts. Other than the Group Structure Agreements and as
disclosed in Schedule C, no Group Company has any material, long term,
onerous or unusual contract or commitment binding upon it including but not
limited to:
(i) any contract entered into otherwise than in the ordinary course of
business;
(ii) any agreement or arrangement otherwise than by way of bargain at arm's
length;
(iii) any sale or purchase option or similar contract or arrangement
affecting any assets owned or used by any Group Company or by which a
Group Company is bound;
(iv) any contract which cannot readily be fulfilled or performed by a Group
Company on time or without undue or unusual expenditure of money or
effort;
(v) any agreement whereby a Group Company is, or has agreed to become, a
member of any joint venture, consortium or partnership or other
unincorporated association; and
(vi) any inter-company agreements and arrangements between any two or more
Group Companies or between Xinhua Finance Limited and any of its
Affiliates and a Group Company.
3.14 Brokerage or Commissions. No Person is entitled to receive from the Company
any finder's fee brokerage or commission in connection with this Agreement
or anything contained in it.
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3.15 Full Disclosure. (a) The Company is not aware of any facts pertaining to
the Group or its proposed business which could materially adversely affect
the Group or which are likely in the future to materially adversely affect
the Group and which have not been disclosed by or on behalf of the Company
in connection with or pursuant to this Agreement. (b) To the best of the
knowledge and belief of the Company after having made due enquiries, no
representation or warranty of the Company in this Agreement, nor any
statement or certificate furnished or to be furnished by or on behalf of
the Company to the Investor pursuant to or in connection with this
Agreement contains or will contain any untrue statement of material fact,
or omits or will omit to state a material fact necessary to make the
statements contained herein or therein not misleading.
3.16 Absence of Questionable Payments. None of the Group Companies nor any of
their respective Affiliates, directors, officers, agents, employees or
other persons acting on their behalf, has used any corporate or other funds
for unlawful contributions, payments, gifts, or entertainment, or made any
unlawful expenditures relating to political activity to government
officials or others or established or maintained any unlawful or unrecorded
funds. None of the Group Companies nor any of their respective Affiliates,
directors, officers, agents, employees or other persons acting on their
behalf, has accepted or received any unlawful contributions, payments,
gifts, or expenditures.
3.17 The Closing Deliverable Agreements. On or before Closing, each of the
Closing Deliverable Agreements will have been duly executed and, as at
Closing, will be in full force and effect and will constitute the valid and
legally binding obligations of the parties thereto, enforceable in
accordance with their terms at Closing.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR. The Investor
hereby represents, warrants and covenants to the Company that each of the
following statements is true:
4.1 Organisation and Qualification. It is a person or a legal entity duly
organised and validly existing under the laws of its legal registration
jurisdiction.
4.2 Authorisation. It has taken all corporate or other action required to
authorise, and has duly authorised, the execution, delivery and performance
of this Agreement and upon due execution and delivery the same will
constitute legal, valid and binding obligations of the Investor,
enforceable in accordance with their respective terms.
4.3 Power and Authority. It has full power and authority to make the covenants
and representations referred to herein and to subscribe for and purchase
the Subscription Shares and to execute, deliver and perform this Agreement.
4.4 Purchase Entirely for Own Account. This Agreement is made with the Investor
in reliance upon the Investor's representation to the Company, which by the
Investor's execution of this Agreement the Investor hereby confirms, that
the Subscription Shares to be received by the Investor will be acquired for
investment for the Investor's own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof, and that
the Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, the Investor further represents that the Investor does not have
any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such person or to any third
person, with respect to any of the Subscription Shares.
4.5 Investment Experience. It is an investor in securities of companies in the
development stage and acknowledges that it is able to bear the economic
risk of its investment and has such
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knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the
Subscription Shares.
4.6 Disclosure of Information. It and its advisors, if any, have been furnished
with all materials relating to the business, finances and operations of the
Company and materials relating to the Subscription Shares which have been
requested by it or its advisors. It and its advisors, if any, have been
afforded the opportunity to ask questions of representatives of the Company
and have received answers to such questions, as it deems necessary in
connection with its decision to subscribe for the Subscription Shares.
4.7 Compliance with Laws. It has complied with all applicable laws of its
jurisdiction in connection with the subscription of the Subscription Shares
and this Agreement, including (i) the legal requirements within its
jurisdiction for the purchase of Subscription Shares, (ii) any foreign
exchange restrictions applicable to such purchase, (iii) any governmental
or other consents that may need to be obtained and (iv) the income tax and
other consequences, if any, that may be relevant to the purchase, holding,
redemption, sale or transfer of the Subscription Shares. The Investor's
subscription and payment for and its beneficial ownership of the
Subscription Shares, will not violate any applicable securities or other
laws of the Investor's jurisdiction.
5. CONDITIONS OF INVESTOR'S OBLIGATIONS AT THE CLOSING. The obligations of the
Investor under Clause 2 of this Agreement are subject to the satisfaction
or waiver, on or before the Closing Date of each of the following:
5.1 Representations and Warranties. The representations and warranties of the
Company contained in Clause 3 shall be true on and as of the Closing Date
with the same effect as though such representations and warranties had been
made on and as of the Closing Date.
5.2 Performance. The Company shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
5.3 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to that Investor, and the Investor shall have received all such
counterpart original and certified or other copies of such documents as it
may reasonably request.
5.4 Approvals. All governmental approvals (other than the business licence) for
the establishment and operation of the WFOE in the business of provision of
media consulting services shall have been obtained and in full force and
effect.
6. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING. The obligations of
the Company to the Investor under this Agreement are subject to the
satisfaction or waiver on or before the Closing of each of the following
conditions:
6.1 Representations and Warranties. The representations and warranties of the
Investor contained in Clause 4 shall be true on and as of the Closing Date
with the same effect as though such representations and warranties had been
made on and as of the Closing Date.
7. TERMINATION
7.1 Termination. This Agreement may be terminated at any time prior to the
Closing:
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(a) by the Investor if, between the date hereof and the Closing: (i) there
is a Material Adverse Change, (ii) any representations and warranties
of the Company contained in this Agreement shall not have been true
and correct when made, (iii) the Company shall not have complied in
all material respects with the covenants or agreements contained in
this Agreement to be complied with by it or (iv) any Group Company or
any Person who is a party to any of the Group Structure Agreements
makes a general assignment for the benefit of creditors, or any
proceeding shall be instituted by or against such Group Company or
Person seeking to adjudicate it bankrupt or insolvent, or seeking
liquidation, winding up or reorganization, arrangement, adjustment,
protection, relief or composition of its debts under any law related
to bankruptcy, insolvency or reorganization;
(b) by the Company but such termination shall be effective if, between the
date hereof and the Closing: (i) any representations and warranties of
the Investor contained in this Agreement shall not have been true and
correct when made, (ii) the Investor shall not have complied in all
material respects with the covenants or agreements contained in this
Agreement to be complied with by it or (iii) the Investor makes a
general assignment for the benefit of creditors, or any proceeding
shall be instituted by or against the Investor in question seeking to
adjudicate the Investor in question bankrupt or insolvent, or seeking
liquidation, winding up or reorganization, arrangement, adjustment,
protection, relief or composition of its debts under any law related
to bankruptcy, insolvency or reorganization;
(c) by the Investor or the Company if the Closing shall not have occurred
by 28 February, 2006; provided, however, that the right to terminate
this Agreement under this Clause 8.1(c) shall not be available to any
Party whose failure to fulfill any obligation under this Agreement
shall have been the cause of, or shall have resulted in, the failure
of the Closing to occur on or prior to such date;
(d) by the Investor or the Company in the event that any competent
governmental authority in the PRC shall have issued an order, decree
or ruling or taken any other action restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement
or the proposed business and operation of the Group or the Group
Structure Agreements; or
(e) by the mutual written consent of the Investor and the Company.
7.2 Effect of Termination. In the event of termination of this Agreement as
provided in Clause 7.1 other than as provided in Clause 7.1(b), this
Agreement shall forthwith become void provided that nothing herein shall
relieve any party hereto from liability for any breach of this Agreement.
In the event of termination of this Agreement as provided in Clause 7.1(b),
this Agreement shall forthwith become void and there shall be no liability
on the part of the Company provided that neither the Company nor the
Investor shall be relieved from liability for any breach of this Agreement.
8. MISCELLANEOUS
8.1 Survival of Warranties. The representations, warranties and covenants of
the Company and the Investor contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and
the Closing and shall in no way be affected by any investigation of the
subject matter thereof made by or on behalf of the Investor or the Company.
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8.2 Successors and Assigns. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including
transferees of any Subscription Shares sold hereunder transferred in
accordance with the terms of the Shareholders Agreement). Nothing in this
Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
8.3 Governing Law and Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of Hong Kong. The parties hereto
irrevocably agree to submit to the non-exclusive jurisdiction of the courts
of Hong Kong in all matters arising in connection with this Agreement.
8.4 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
8.5 Titles and Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
8.6 Notices. Unless otherwise provided, any notice required or permitted under
this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon postal
service delivery, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated for such
party on the signature page hereof or by facsimile at the facsimile number
set out on the signature page hereof, or at such other address or facsimile
number as such party may designate by ten (10) days' advance written notice
to the other parties.
8.7 Finder's Fee. The Investor agrees to indemnify and to hold harmless the
Company from any liability for any commission or compensation in the nature
of a finders' fee (and the costs and expenses of defending against such
liability or asserted liability) for which that Investor or any of its
officers, partners, employees, or representatives is responsible.
8.8 Expenses. Each of the parties hereto shall be responsible for its own costs
and expenses incurred in the preparation, negotiation and execution of this
Agreement.
8.9 Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if
such provision was so excluded and shall be enforceable in accordance with
its terms.
8.10 Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
THE REST OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
THE EXECUTION PAGE FOLLOWS
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE INVESTOR
For and on behalf of
XINHUA FINANCE MEDIA LIMITED
By:
/s/ Fredy Bush
-------------------------------
Name:
-------------------------
Title:
------------------------
Address:
Suite 2003-5 Vicwood Plaza
199 Des Voeux Road Central
Hong Kong
Telephone: (852) 3196 3909
Facsimile: (852) 2815 1348
THE COMPANY
For and on behalf of
ACCORD GROUP INVESTMENTS LIMITED
By:
/s/ Clifford Ng
------------------------------
Name: Clifford Ng
Title: Director
Address:
c/o 35/F, Two International Finance Centre
8 Finance Street, Central,
Hong Kong
Telephone: (852) 2511 5100
Facsimile: (852) 2511 9515
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<PAGE>
SCHEDULE A
PART I
CORPORATE DETAILS OF THE COMPANY IMMEDIATELY PRIOR TO CLOSING
Name Accord Group Investments Limited
Date and place of
Incorporation 15 June, 2005 - British Virgin Islands
Registered Address Offshore Incorporations Limited,
P.O. Box 957, Offshore Incorporations Centre,
Road Town, Tortola,
British Virgin Islands
Correspondence Address Preston Gates & Ellis
Room 3503, 35th Floor
Two International Finance Centre
8 Finance Street, Central
Hong Kong
Authorised share capital US$50,000 made up of 50,000 ordinary shares of
US$1.00 each
Issued share capital 81 ordinary shares
No. of Ordinary
Shareholders Shareholder Name Shares
---------------- ---------------
Sino Investment Holdings
Limited 81
---
TOTAL: 81
===
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<PAGE>
SCHEDULE A
PART II
CAPITALIZATION OF THE COMPANY IMMEDIATELY FOLLOWING CLOSING
Authorised share capital US$50,000 made up of 50,000 ordinary shares of
US$1.00 each
Issued share capital 100 ordinary shares
No. of Shares
Shareholders Shareholder Held
----------- -------------
Sino Investment Holdings
Limited 81
Xinhua Finance Media Limited 19
---
TOTAL: 100
===
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<PAGE>
SCHEDULE B
SCHEDULE OF SUBSIDIARIES
Name Great Triumph Investments Limited
Date and place of
Incorporation 13 June, 2005 - British Virgin Islands
Registered Address Offshore Incorporations Limited,
P.O. Box 957, Offshore Incorporations Centre,
Road Town, Tortola,
British Virgin Islands
Correspondence Address Preston Gates & Ellis
Room 3503, 35th Floor
Two International Finance Centre
8 Finance Street, Central
Hong Kong
Authorised share capital US$50,000 made up of 50,000 ordinary shares of
US$1.00 each
Issued share capital 1 ordinary share
No. of Ordinary
Shareholders Shareholder Name Shares
---------------- ---------------
Accord Group Investments
Limited 1
---
TOTAL: 1
===
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<PAGE>
SCHEDULE B
SCHEDULE OF SUBSIDIARIES
Attributable
proportion of nominal
value of issued /
registered capital
Place of held by the Company
incorporation/ ---------------------
NAME OF SUBSIDIARY establishment Directly Indirectly Principal activities
------------------ -------------------- -------- ---------- -------------------------------------------
New China Media Co. People's Republic of 100% N/A Provision of cultural exchanges,
China investments, international economic, trade,
technical, business, corporate governance,
and softwares development consulting
services; sale of self-manufactured
products and provision of related services
Beijing Shiji Guangnian People's Republic of 80% Domestic advertising designs, production,
Advertising Co., China agency and distribution
Limited (PRC)
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<PAGE>
SCHEDULE C
LIST OF GROUP STRUCTURE AGREEMENTS
1. Secured Promissory Note issued by Irene Wang ("IRENE") in favour of WFOE
2. Equity Pledge Agreement amongst Irene, WFOE and Beijing Shiji Guangnian
Advertising Co., Limited("BSG")
3. Exclusive Equity Purchase Option Agreement between Irene and WFOE
4. Subrogation Agreement amongst Irene, WFOE and BSG
5. Declaration by spouse of Irene
6. Letter of resignation to be signed in blank by Irene as director of BSG
7. Letter of resignation to be signed in blank by Irene as legal
representative of BSG
8. Letter of resignation to be signed in blank by Irene as supervisor of BSG
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<PAGE>
SCHEDULE D
MATERIAL LIABILITIES DISCLOSED PURSUANT TO SECTION 3.9
1. Legal fees of Preston Gates & Ellis incurred in connection with this
Agreement and all agreements and actions contemplated herein.
18