Share Purchase Agreement - Xinhua Finance Media Ltd. and Econworld Media Ltd.
EXECUTION COPY
XINHUA FINANCE MEDIA LIMITED
[Chinese Characters]
(the Purchaser)
AND
CHEUNG WAH KEUNG AND OTHERS
(the Vendors)
----------
SHARE PURCHASE AGREEMENT
IN RESPECT OF SHARES IN THE CAPITAL OF
ECONWORLD MEDIA LIMITED
----------
8 JUNE 2006
Hong Kong
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THIS SALE AND PURCHASE AGREEMENT (this "AGREEMENT") is made on the 8th day of
June 2006.
BETWEEN
1. XINHUA FINANCE MEDIA LIMITED [Chinese Characters], a company incorporated
under the laws of the Cayman Islands with registration number 157511 and a
registered address at Century Yard, Cricket Square, Hutchins Drive, P.O.
Box 2681GT, George Town, Grand Cayman, Cayman Islands, British West Indies
(the "PURCHASER");
2. The persons or corporations whose names are set out in Schedule I (each a
"VENDOR" and together the "VENDORS").
WHEREAS
A. The Vendors hold 65,000 shares of EconWorld Media Limited (the "COMPANY"),
which represents approximately 18.57% of the issued and outstanding share
capital of the Company, a company incorporated in Hong Kong with a
registration number of 696257 and a registered address of Room 203A, 2/F.,
Stanhope House, 734-738 King's Road, Hong Kong. Further corporate
particulars of the Company are set out in Schedule II.
B. By a subscription agreement dated 26 May 2005 and a supplemental deed dated
2 November 2005 entered into between Xinhua Finance Limited ("XFL") and the
Vendors, the Vendors have the put option to sell the Sale Shares and XFL
has the call option to purchase the Sale Shares in accordance with the
terms of the subscription agreement and supplemental deed.
C. On 12 January 2006, XFL transferred all its shares in the Company to the
Purchaser.
D. The Purchaser desires to purchase from the Vendors and the Vendors wish to
sell to the Purchaser 42,000 shares of the Company (the "SALE SHARES"),
representing 12% of the issued and outstanding share capital of the Company
subject to the terms and conditions set out in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants set
forth herein, the Purchaser and the Vendors do hereby agree as follows:
1. DEFINITIONS
1.1 Definitions. The following terms, as used herein, have the following
meanings:
"BOARD" means the board of directors of the Company;
"CLOSING" shall have the meaning provided in Clause 2.3;
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"CLOSING DATE" shall have the meaning provided in Clause 2.3;
"CONSENT" means any consent, approval, permit, license, order, or
authorization of or registration, declaration, or filing with or exemption
by Governmental Entity;
"DIRECTORS" mean the members from time to time of the Board;
"ENCUMBRANCE" means and includes any interest or equity of any person
(including, without prejudice to the generality of the foregoing, any right
to acquire, option or right of pre-emption) or any mortgage, charge,
pledge, lien or assignment or any other encumbrance, priority or security
interest or arrangement of whatsoever nature over or in the relevant
property;
"GOVERNMENTAL ENTITY" means any court, regulatory body, administrative
agency or commission or other governmental authority or instrumentality,
whether domestic or foreign;
"HONG KONG" means the Hong Kong Special Administrative Region of the
People's Republic of China;
"PURCHASE PRICE" means US$1,082,910;
"SALE SHARES" has the meaning set out in Recital D; and
"US$" and "US DOLLARS" means the lawful currency of the United States of
America.
1.2 Interpretation. In this Agreement:
(a) the headings are inserted for convenience only and shall not affect
the construction of this Agreement;
(b) references to statutory provisions shall be construed as references to
those provisions as amended or re-enacted or as their application is
modified by other statutory provisions (whether before or after the
date hereof) from time to time and shall include any provisions of
which they are re-enactments (whether with or without modification);
(c) all time and dates in this Agreement shall be Hong Kong time and dates
except where otherwise stated;
(d) unless the context requires otherwise, words incorporating the
singular shall include the plural and vice versa and words importing a
gender shall include every gender; and
(e) references herein to Clauses, Recitals and Schedules are to clauses
and recitals of and schedules to this Agreement.
1.3 Recitals, Schedules. All Recitals and Schedules form part of this Agreement
and shall have the same force and effect as if expressly set out in the
body of this Agreement and any reference to this Agreement shall include
the Recitals and Schedules.
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2 SALE AND PURCHASE OF SALE SHARES
2.1 Sale. Subject to the terms and conditions set out in this Agreement, the
Purchaser (relying on the representations, warranties, agreements,
covenants, undertakings and indemnities hereinafter referred to) agrees
with the Vendors to purchase at Closing, and the Vendors agree to sell and
cause to be sold to the Purchaser at Closing, all rights, title and
interests in the Sale Shares free from all Encumbrances together with all
rights of any nature whatsoever now or hereafter attaching or accruing to
them including all rights to any dividends or other distribution declared
paid or made in respect of them after the Closing Date.
2.2 Purchase Price. The aggregate purchase price for the interests in the Sale
Shares shall be US$1,082,910 (the "PURCHASE PRICE").
2.3 Closing. The purchase and sale of the Sale Shares (the "CLOSING") shall
take place at the offices of Suite 2003-5, Vicwood Plaza, 199 Des Voeux
Road Central, Hong Kong on 8 June 2006 or at such other time and place as
the Purchaser and the Vendors agree in writing. The date and time of the
Closing are herein referred to as the "CLOSING DATE".
2.4 The Vendors' Closing Obligations. Upon Closing the Vendors shall deliver to
the Purchaser:
(i) the following documents in respect of the Sale Shares:
(A) duly completed and signed instruments of transfers and sold
notes of the Sale Shares by the registered holders thereof
in favour of the Purchaser or as it may direct together with
the share certificates representing the Sale Shares;
(B) all powers of attorney or other authorities under which the
transfers of the Sale Shares have been executed;
(C) such waivers or consents as the Purchaser may require
enabling the Purchaser or its nominee(s) to be registered as
the holders of the Sale Shares;
(D) such other documents as may be required to give to the
Purchaser good title to the Sale Shares and to enable the
Purchaser or its nominees to become the registered holders
thereof;
(ii) written confirmation that the Vendors are not aware of any matter
or thing which is in breach of or inconsistent with any of the
representations, warranties and undertakings herein contained;
and
(iii) such other papers and documents as the Purchaser may reasonably
require.
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2.5 The Purchaser's Closing Obligations. Against performance of the the matters
set out in Clause 2.4, the Purchaser shall pay to the Vendors the Purchase
Price.
2.6 Further Covenants. The Vendors hereby irrevocably undertake to the
Purhcaser to procure at its own expense the due execution of all such
further documents as are necessary to vest in the Purchaser all such
property and rights as are intended to be vested in them by or pursuant to
this Agreement.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
The Vendors represent and warrant to the Purchaser that the following
statements are true and correct as of the date of this Agreement:
3.1 The Company. In respect of the Company:
(a) Organization, Standing, and Power. It is a company duly organized,
validly existing, and in good standing under the laws of
incorporation, has all requisite corporate power and authority to
carry on its businesses, and is duly qualified and in good standing to
do business in each jurisdiction in which it conducts business. The
articles of incorporation, bylaws, registers and/or other
organizational documents ("CHARTER DOCUMENTS") of the Company, in each
case, as amended to the date hereof are complete and correct copies.
(b) Corporate Records. Its minute books and corporate records contain
correct and complete records of all proceedings and actions taken at
all meetings of, or effected by written consent of, its shareholders
and its board of directors, and all original issuances and subsequent
transfers, repurchases, and cancellations of its shares.
(c) Capital Structure.
(i) Immediately following Closing its issued share capital will be as
set out in Schedule III.
(ii) There are no options, warrants, calls, conversion rights,
commitments, agreements, contracts, restrictions, or rights of
any character to which its is a party or by which it may be bound
obligating company to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares, or obligating it to
grant, extend or enter into any such option, warrant, call,
conversion right, commitment, agreement, contract, understanding,
restriction, arrangement or right. It does not have outstanding
any bonds, debentures, notes or other indebtedness.
(d) Authority. The execution, delivery, and performance of this Agreement
has been duly authorized by all necessary action of its board.
Certified copies of the resolutions adopted by its board approving
this Agreement and transactions contemplated hereby have been provided
to the Purchaser.
(e) Execution. It has duly and validly executed and delivered this
Agreement
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constitute valid, binding, and enforceable obligations of it in
accordance with their terms, except to the extent that enforceability
may be limited by applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting the enforcement of creditors'
rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding at law or in
equity.
(f) Compliance with Laws and Other Instruments. It holds, and at all times
has held all licenses, permits, and authorizations from all
governmental entities necessary for the lawful conduct of its business
pursuant to all applicable statutes, laws, ordinances, rules, and
regulations of all such authorities having jurisdiction over it or any
part of its operations. There are no violations or claimed violations
of any such license, permit, or authorization, or any such statute,
law, ordinance, rule or regulation.
(g) Corporate Governance. Neither the execution and delivery of this
Agreement nor the performance by it of its obligations under this
Agreement will (i) conflict with or result in any breach of its
Charter Documents; (ii) require any Consent, (iii) conflict with,
result in a breach or default of, or give rise to any right of
termination, cancellation or acceleration or result in the creation of
any lien, charge, encumbrance, or restriction upon any of the
properties or assets of it or its shares under, any law, statute,
rule, regulation, judgment, decree, order, government permit, license
or order or any mortgage, indenture, note, license, trust, agreement
or other agreement, instrument or obligation to which it is a party.
(h) No Litigation. The Company is not involved in any litigation whether
as plaintiff or defendant.
(i) Ownership of Shares. Each Vendor has good and valid title to the Sale
Shares set forth opposite his or its name on Schedule I, free and
clear of any lien, charge, encumbrance, security interest, voting
agreement, voting trust, voting or transfer restriction, right of
first refusal, proxy, claim or right of others of whatever nature (a
"LIEN"), and at closing of any sale of such Sale Shares by a Vendor,
such Vendor will deliver to the Purchaser good and valid title to all
of the Sale Shares beneficially owned by such Vendor as set forth on
Schedule I hereto, free and clear of any Liens. No person or entity
other than such Vendor has any power or right, whether or not shared
with any other person or entity, to dispose of or direct the
disposition of any of the Sale Shares or to vote or direct the voting
of any of the Sale Shares held by such Vendor as set forth on Schedule
I hereto.
3.2 General
(a) Full Disclosure. (i) The Vendors are not aware of any facts which
could materially adversely affect the Company or which are likely in
the future to materially adversely affect the Company and which have
not been disclosed by or on behalf of the Company in connection with
or pursuant to this Agreement. (ii) No representation or warranty in
this Agreement, nor any statement or certificate furnished or to be
furnished to the Purchaser pursuant
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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.
(b) Reliance. The foregoing representations and warranties are made by the
Vendors with the knowledge and expectation that the Purchaser is
placing reliance thereon.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE VENDORS
The Vendors hereby represent, warrant and covenant on a joint and several
basis to the Purchaser 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 jurisdiction of
incorporation.
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 its legal, valid and binding obligations enforceable in
accordance with its terms.
4.3 Power and Authority. It has full power and authority to make the covenants
and representations referred to herein and to sale the Sale Shares and to
execute, deliver and perform this Agreement.
4.4 Authority. The execution, delivery, and performance of this Agreement has
been duly authorized by all necessary action of its board. Certified copies
of the resolutions adopted by its board approving this Agreement and
transactions contemplated hereby have been provided to the Purchaser.
4.5 Compliance with Laws and Other Instruments. It holds, and at all times has
held all licenses, permits, and authorizations from all governmental
entities necessary for the lawful conduct of its business pursuant to all
applicable statutes, laws, ordinances, rules, and regulations of all such
authorities having jurisdiction over it or any part of its operations.
There are no violations or claimed violations of any such license, permit,
or authorization, or any such statute, law, ordinance, rule or regulation.
4.6 Corporate Governance. Neither the execution and delivery of this Agreement
nor the performance by it of its obligations under this Agreement will (i)
conflict with or result in any breach of its Charter Documents (ii) require
any Consents by Governmental Entity, (iii) conflict with, result in a
breach or default of, or give rise to any right of termination,
cancellation or acceleration or result in the creation of any lien, charge,
encumbrance, or restriction upon any of the properties or assets of it or
its shares under, any law, statute, rule, regulation, judgment, decree,
order, government permit, license or order or any mortgage, indenture,
note, license, trust, agreement or other agreement, instrument or
obligation to which it is a party.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
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PURCHASER
The Purchaser hereby represents, warrants and covenants to the Vendors that
each of the following statements is true:
5.1 Organisation and Qualification. It is a person or a legal entity duly
organised and validly existing under the laws of its jurisdiction of
incorporation.
5.2 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 its legal, valid and binding obligations enforceable in
accordance with its terms.
5.3 Power and Authority. It has full power and authority to make the covenants
and representations referred to herein and to purchase the Sale Shares and
to execute, deliver and perform this Agreement.
6. CONFIDENTIALITY AND NON-DISCLOSURE
6.1 Non-Disclosure of Terms. The terms and conditions of this Agreement,
including its existence, shall be considered confidential information and
shall not be disclosed by any party hereto to any third party except in
accordance with the provisions set forth below; provided that such
confidential information shall not include any information that is in the
public domain other than by the breach of the confidentiality obligations
hereunder.
6.2 Press Releases, Etc. Any press release issued by any party hereto shall be
approved in advance in writing by the both parties hereto, whose consent
shall not be unreasonably withheld. No other announcement regarding any of
the terms set out in this Agreement in a press release, conference,
advertisement, announcement, professional or trade publication, mass
marketing materials or otherwise to the general public may be made without
the prior written consent of both parties hereto, whose consent shall not
be unreasonably withheld.
6.3 Permitted Disclosures. Notwithstanding the foregoing, any party may
disclose any of the terms set out this Agreement to its current or bona
fide, employees, bankers, lenders, partners, accountants and attorneys and
other professional advisers, in each case only where such persons or
entities are under appropriate non-disclosure obligations.
6.4 Legally Compelled Disclosure. In the event that any party is requested or
becomes legally compelled (including without limitation, pursuant to
securities laws and regulations) to disclose the existence or terms of this
Agreement in contravention of the provisions of this Clause 6, such party
(the "DISCLOSING PARTY") shall provide the other parties (the
"NON-DISCLOSING PARTIES") with prompt written notice of that fact and use
all reasonable efforts to seek (with the cooperation and reasonable efforts
of the other parties) a protective order, confidential treatment or other
appropriate remedy. In such event, the Disclosing Party shall furnish only
that portion of the information which is legally required and shall
exercise reasonable efforts to keep
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confidential such information to the extent reasonably requested by any
Non-Disclosing Party.
6.5 Other Information. The provisions of this Clause 6 shall be in addition to,
and not in substitution for, the provisions of any separate nondisclosure
agreement executed by any of the parties hereto with respect to the
transactions contemplated hereby.
7. MISCELLANEOUS
7.1 Survival of Warranties. The representations, warranties and covenants
contained in or made pursuant to this Agreement shall survive the execution
and delivery of this Agreement and Closing and shall in no way be affected
by any investigation of the subject matter thereof made by or on behalf of
the Purchaser.
7.2 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 Company Shares sold hereunder). 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.
7.3 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 Hong
Kong International Arbitration Centre according to UNCITAL Arbitration
Rules in all matters arising in connection with this Agreement.
7.4 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.
7.5 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.
7.6 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.
7.7 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.
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7.8 Stamp duty. Each party to this Agreement shall pay its own share of stamp
duty in relation to the sale and purchase of the Sale Shares and the
Vendors hereby authorise the Purchaser to deduct from the Purchase Price
the Vendors' share of stamp duty.
7.9 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.
- EXECUTION PAGE FOLLOWS -
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE VENDOR
SIGNED by
CHEUNG WAH KEUNG [Chinese Characters]
/s/ CHEUNG WAH KEUNG
-------------------------------------
SIGNED by
LO LI CHUN [Chinese Characters]
/s/ LO LI CHUN
-------------------------------------
SIGNED by
LO SHUI LING RAYMOND [Chinese Characters]
/s/ LO SHUI LING RAYMOND
-------------------------------------
SIGNED by
QUACH FUNG VI [Chinese Characters]
/s/ QUACH FUNG VI
-------------------------------------
For and on behalf of
JUSTLY INVESTMENT INTERNATIONAL LIMITED
[Chinese Characters]
/s/
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
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THE PURCHASER
For and on behalf of XINHUA FINANCE
MEDIA LIMITED
By: /s/ John McLean
---------------------------------
Name: John McLean
Title: Authorized signatory
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SCHEDULE I
LIST OF VENDORS, NUMBER OF SALE SHARES AND PURCHASE PRICE
TOTAL PURCHASE PRICE TO
NAME OF VENDOR NO. OF SALE SHARES BE PAID TO EACH VENDOR
-------------- ------------------ -----------------------
CHEUNG WAH KEUNG 10,000 USD257,836
LO LI CHUN 12,000 USD309,403
LO SHUI LING RAYMOND 8,000 USD206,268
QUACH FUNG VI 10,000 USD257,836
JUSTLY INVESTMENT INTERNATIONAL LIMITED 2,000 USD51,567
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SCHEDULE II
PARTICULARS OF THE COMPANY BEFORE CLOSING
Name: EconWorld Media Limited [Chinese Characters]
Date and place of Incorporation December 1, 1999, Hong Kong
Registered Address Room 203A, 2/F., Stanhope House, 734-738
King's Road, Hong Kong
Authorised share capital HK$10,000 divided into 1,000,000 shares of
HK$0.01 each
Issued share capital HK$3,500 divided into 350,000 shares of
HK$0.01 each
No. of Ordinary
Shareholders Shareholder Name Shares
---------------- ---------------
Gainful Concept Limited 30,000
Cheers Perfect Limited 20,000
Cheung Wah Keung 10,000
Lo Li Chun 30,000
Lo Shui Ling Raymond 10,000
Justly Investment
International Limited 5,000
Quach Fung Vi 10,000
EconWorld Holdings Limited 15,000
Best Gain Group Limited 10,000
Xinhua Finance Media Limited 210,000
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TOTAL: 350,000
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SCHEDULE III
PARTICULARS OF THE COMPANY IMMEDIATELY AFTER CLOSING
Name: EconWorld Media Limited [Chinese Characters]
Date and place of Incorporation December 1, 1999, Hong Kong
Registered Address Room 203A, 2/F., Stanhope House, 734-738
King's Road, Hong Kong
Authorised share capital HK$10,000 divided into 1,000,000 shares of
HK$0.01 each
Issued share capital HK$3,500 divided into 350,000 shares of
HK$0.01 each
No. of Ordinary
Shareholders Shareholder Name Shares
---------------- ---------------
Gainful Concept Limited 30,000
Cheers Perfect Limited 20,000
Lo Li Chun 18,000
Lo Shui Ling Raymond 2,000
Justly Investment
International Limited 3,000
EconWorld Holdings Limited 15,000
Best Gain Group Limited 10,000
Xinhua Finance Media Limited 252,000
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TOTAL: 350,000
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