Agreement for Sale and Purchase of Shares - Honour Rise Services Ltd. and Xinhua Finance Media Ltd.
DATED THE 1ST DAY OF NOVEMBER 2006
HONOUR RISE SERVICES LIMITED
AND
XINHUA FINANCE MEDIA LIMITED
----------
AGREEMENT FOR SALE AND PURCHASE OF SHARES
(PRESTON|GATES|ELLIS LOGO)
SOLICITORS
35th Floor, Two International Finance Centre
8 Finance Street, Central, Hong Kong
Tel: (852) 2511 5100 Fax: (852) 2511 9515
Website: www.prestongates.com
Ref: 55762-00001/CSMN/EWCM
<PAGE>
CONTENTS
CLAUSE HEADING PAGE
------ ------- ----
1. DEFINITIONS................................................... 1
2. SALE AND PURCHASE OF THE SALE SHARES.......................... 3
3. CONSIDERATION................................................. 3
4. COMPLETION.................................................... 3
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE VENDOR....... 5
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.... 6
7. FURTHER ASSURANCE............................................. 7
8. ENTIRE AGREEMENT.............................................. 7
9. NOTICES....................................................... 7
10. MISCELLANEOUS................................................. 8
11. GOVERNING LAW AND JURISDICTION................................ 8
12. AMENDMENTS.................................................... 8
SCHEDULE 1............................................................... 10
SCHEDULE 2............................................................... 11
SCHEDULE 3............................................................... 12
SCHEDULE 4............................................................... 13
EXECUTION
<PAGE>
THIS AGREEMENT is made on the 1st day of November 2006.
BETWEEN:
(1) HONOUR RISE SERVICES LIMITED, a company incorporated under the laws of the
British Virgin Islands with registration number 686228 and a registered
address of P.O. Box 957, Offshore Incorporations Centre, Road Town,
Tortola, British Virgin Islands (the "VENDOR"); and
(2) XINHUA FINANCE MEDIA LIMITED, a company incorporated in the Cayman Islands
with registration number 157511 and a registered address of Codan Trust
Company (Cayman) Limited, Century Yard, Cricket Square, Hutchins Drive,
P.O. Box 2681GT, George Town, Grand Cayman, British West Indies (the
"PURCHASER").
WHEREAS:
(A) Upper Step has an authorised share capital of US$50,000 divided into 50,000
shares of US$1.00 each of which 500 Upper Step Shares have been issued and
are fully paid up. Further particulars of Upper Step are set out in
Schedule 1;
(B) Accord Group has an authorised share capital of US$50,000 divided into
50,000 shares of US$1.00 each of which 100 Accord Group Shares have been
issued and are fully paid up. Further particulars of Accord Group are set
out in Schedule 1;
(C) The Vendor is the legal and beneficial owner of 220 Upper Step Shares and
20 Accord Group Shares; and
(D) The Vendor wishes to transfer its entire shareholding in each of Upper Step
and Accord Group to the Purchaser and the Purchaser wishes to acquire the
Sale Shares (as defined below) upon and subject to the terms and conditions
set out herein.
NOW IT IS HEREBY AGREED as follows :
1. DEFINITIONS
1.01 In this Agreement (including the recitals), the following expressions have
the following meanings:
"ACCORD GROUP" means Accord Group Investments Limited,
particulars of which are set out in Schedule 1;
"ACCORD GROUP CONSIDERATION
SHARES" means the aggregate of 125,053 Class A Common
Shares of US$0.001 each in the share capital of
the Purchaser to be issued and allotted by the
Purchaser in accordance with Clause 3, details
of which are set out in Schedule 2;
"ACCORD GROUP SHARES" means the shares of any class in the capital of
Accord Group;
"BUSINESS DAY" means a day (other than a Saturday or a day on
which a tropical cyclone warning No.8 or above
or a black rainstorm warning is hoisted in Hong
Kong at any time
-1-
<PAGE>
between 9:00 a.m. and 5:00 p.m.) on which banks
are open for business in Hong Kong;
"COMPANIES" means Accord Group and Upper Step;
"COMPANIES ORDINANCE" means the Companies Ordinance (Chapter 32 of
the Laws of Hong Kong) as amended from time to
time;
"COMPLETION" means completion of the events set out in
Clause 4;
"COMPLETION DATE" means the actual date of Completion;
"CONSIDERATION SHARES" means the aggregate of the Accord Group
Consideration Shares and the Upper Step
Consideration Shares;
"HONG KONG" means the Hong Kong Special Administrative
Region of the People's Republic of China;
"HK$" means Hong Kong dollars, the lawful currency of
Hong Kong;
"SALE SHARES" means the aggregate of 220 Upper Step Shares
which are owned by the Vendor, representing 44%
of the total issued share capital of Upper Step
and 20 Accord Group Shares which are owned by
the Vendor, representing 20% of the total
issued shares capital of Accord Group;
"SHARES" means the Accord Group Shares and Upper Step
Shares;
"UPPER STEP" means Upper Step Holdings Limited, particulars
of which are set out in Schedule 1;
"UPPER STEP CONSIDERATION
SHARES" means the aggregate of 6,407,018 Class A Common
Shares of US$0.001 each in the share capital of
the Purchaser to be issued and allotted by the
Purchaser in accordance with Clause 3, details
of which are set out in Schedule 2;
"UPPER STEP SHARES" means the shares of any class in the capital of
Upper Step;
"US$" means United States Dollars, the lawful
currency of the United States of America; and
"WARRANTIES" those representations and warranties referred
to in Clause 5 and in Clause 6.
1.02 Clause headings are for convenience only and shall not affect the
construction of this Agreement.
1.03 The expressions "ACCORD GROUP", "UPPER STEP", the "COMPANIES", the
"VENDOR", and the "PURCHASER" shall, where the context provides, include
their respective successors, personal representatives and permitted
assigns.
1.04 References herein to Clauses and Schedules are to clauses of, and schedules
to, this Agreement unless the context requires otherwise and references to
this Agreement include the
-2-
<PAGE>
Schedules.
1.05 Unless the context requires otherwise, words importing the singular include
the plural and vice versa and words importing a gender include every
gender.
1.06 Any reference to Sale Shares in this Agreement shall also mean all rights
and interests that the Vendor may have for the issuance of such number and
class of Shares as is the same as the number and class of Shares set
against its name in Schedule 1.
2. SALE AND PURCHASE OF THE SALE SHARES
2.01 The Vendor shall sell or procure the sale of the Sale Shares free from all
charges, liens, equities, encumbrances, options and adverse interests and
from all other rights exercisable by or claims by third parties, and the
Purchaser shall purchase the Sale Shares with all rights attached or
accruing to them at Completion.
2.02 The Vendor has the right to transfer the legal and beneficial title to the
Sale Shares. The title to, and any risk attaching to, the Sale Shares shall
pass on Completion.
2.03 The Purchaser shall be entitled to exercise all rights attached or accruing
to the Sale Shares including, without limitation, the right to receive all
dividends, distributions or any return of capital declared, paid or made by
the Companies on or after the Completion Date.
2.04 The Vendor waives or shall procure the waiver of all rights of pre-emption
over any of the Sale Shares conferred upon it by the articles of
association of the Companies, under any shareholders' agreement or in any
other way and undertakes to take all steps necessary to ensure that any
rights of pre-emption over any of the Sale Shares are waived.
2.05 The Vendor agrees that to the extent that it has or may have any rights,
claims or interests whatsoever against either one of the Companies in
connection with the issue of the Sale Shares to it, such rights, claims or
interests shall be fully, irrevocably, unconditionally and absolutely
waived, discharged and released upon Completion.
3. CONSIDERATION
3.01 The total consideration for the sale of the Sale Shares shall be the
Consideration Shares. The Consideration Shares shall be issued and allotted
to the Vendor or such other party it designates, in such number and with
such designation as set out opposite its name in Schedule 2.
3.02 The Consideration Shares shall be allotted and issued as fully paid.
4. COMPLETION
4.01 Completion shall take place on .
4.02 At Completion, the following business shall be transacted :
(a) subject to Clause 4.03 below, the Vendor shall deliver or shall
procure the delivery of the following to the Purchaser:
-3-
<PAGE>
(i) duly executed instrument of transfers of the Sale Shares by the
registered holders thereof in favour of the Purchaser or such
other person(s) as it may nominate, the form of such instrument
of transfer are set out in the Schedule 4;
(ii) the due diligence documents as set out in the Schedule 3 hereto
and all other documents as may be required for the issuance and
registration of the Consideration Shares in the name of the
Vendor, provided such other documents list are provided to the
Vendor within reasonable time prior to Completion;
(iii) such other documents as may be reasonably required by the
Purchaser prior to Completion to give good title to the Sale
Shares free from all claims, liens, charges, equities and
encumbrances and third party rights of any kind and to enable the
Purchaser (or such other person(s) as it may nominate) to become
the registered holder thereof, provided such other documents list
are provided to the Vendor within reasonable time prior to
Completion;
(iv) powers of attorney, if necessary, in approved terms under which
any of the documents referred to in this Clause 4.02(a) is
executed;
(b) the Purchaser shall:
(i) present the instruments of transfer in respect of the Sale Shares
to the Companies for registration; and
(ii) approve the issue and allotment of the Consideration Shares to
the Vendor or such other party it designates in accordance with
Clause 3.
4.03 The Purchaser shall, within reasonable time prior to Completion, deliver to
the Vendor the form of the documents required for the purposes of Clause
4.02(a) (if applicable).
4.04 Deferral of Completion
4.04.1 If the obligations of the Vendor under Clause 4.02 are not complied with
on the Completion Date the Purchaser may:
(a) defer Completion (so that the provisions of this Clause 4 shall apply
to Completion as so deferred); or
(b) proceed to Completion as far as practicable (without limiting its
rights under this Agreement); or
(c) treat this Agreement as terminated for breach of a condition, without
prejudice to any rights it may have in respect hereof.
4.04.2 If the obligations of the Purchaser under Clause 4.02 are not complied
with on the Completion Date the Vendor may:
(a) defer Completion (so that the provisions of this Clause 4 shall apply
to Completion as so deferred); or
(b) proceed to Completion as far as practicable (without limiting its
rights under this Agreement); or
-4-
<PAGE>
(c) treat this Agreement as terminated for breach of a condition, without
prejudice to any rights it may have in respect hereof.
4.05 The Vendor undertakes to indemnify the Purchaser against any loss, expense
or damage which it may suffer as a result of any document delivered to it
pursuant to this clause being unauthorised, invalid or for any other reason
ineffective for its purpose.
4.06 The Purchaser undertakes to indemnify the Vendor against any loss, expense
or damage which it may suffer as a result of any document delivered to it
pursuant to this clause being unauthorised, invalid or for any other reason
ineffective for its purpose.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE VENDOR
5.01 The Vendor represents and warrants to the Purchaser to the intent that each
of the following representations and warranties is accurate in all respects
and not misleading at the date of this Agreement and that if for any reason
there is any interval of time between the time of this Agreement and
Completion, such representations and warranties will continue to be
accurate in all respects and not misleading at all times subsequent to the
date of this Agreement up to and including the Completion Date as if
repeated on each such day immediately before Completion:
(a) it is the sole beneficial owner of, or otherwise has full authority,
including all shareholder and/or regulatory authority, to sell,
transfer or dispose of, the Sale Shares;
(b) it is entitled to sell its Sale Shares free from any claims, equities,
liens, charges and encumbrances (including without limitation any
claims of the beneficiaries or other persons under any settlement or
trust document or otherwise);
(c) this Agreement constitutes and the other documents executed by it
which are to be delivered at Completion will, when executed,
constitute binding obligations of it in accordance with their
respective terms;
(d) the execution and delivery of, and the performance of its obligations
under this Agreement will not:
(i) result in a breach of any provision of the memorandum or articles
of association (or other similar constitutional documents) of it
(being a corporation or company); or
(ii) result in a breach of, or constitute a default under, any
instrument to which it is a party or by which it is bound; or
(iii) result in a breach of any order, judgment or decree of any court
or governmental agency to which it is a party or by which it is
bound.
(e) it acknowledges that no action has been or will be taken with any
relevant securities, governmental or regulatory authorities in any
jurisdiction with respect to the execution, validity or performance of
this Agreement and confirms that (where applicable) it has obtained or
complied with all authorizations and/or regulations of any relevant
securities, governmental or regulatory authorities in connection with
the execution, validity and performance of this Agreement.
-5-
<PAGE>
5.02 The Vendor shall not (save only as may be necessary to give effect to this
Agreement) do or allow and shall procure that no act or omission will occur
before Completion which would constitute a material breach of any of the
Warranties if they were given at Completion or which would make any of the
Warranties materially inaccurate or misleading if they were so given.
5.03 In the event of it being found prior to Completion that any of the
Warranties are materially untrue or incorrect, or in the event of any
matter or thing arising or becoming known or being notified to the
Purchaser which is materially inconsistent with any of the Warranties or in
the event of the Vendor becoming unable or failing to do anything in any
material respect required to be done by it at or before Completion, the
Purchaser shall not be bound to complete the purchase of the Sale Shares
and the Purchaser may by written notice rescind this Agreement without
liability on its part. The right conferred upon the Purchaser by this
Clause is in addition to and without prejudice to any other rights of the
Purchaser (including any rights to claim damages or compensation from the
Vendor by reason of any such breach or non-fulfilment) and failure to
exercise it shall not constitute a waiver of any such rights.
5.04 The Vendor hereby undertakes to indemnify and keep indemnified the
Purchaser against any loss or liability suffered by the Purchaser as a
result of or in connection with any breach of any of the Warranties and
against any reasonable costs and expenses incurred in connection therewith
provided that the indemnity contained in this Clause shall be without
prejudice to any other rights and remedies of the Purchaser in relation to
any such breach.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER
6.01 The Purchaser represents and warrants to the Vendor to the intent that each
of the following representations and warranties is accurate in all respects
and not misleading at the date of this Agreement and that if for any reason
there is any interval of time between the time of this Agreement and
Completion, such representations and warranties will continue to be
accurate in all respects and not misleading at all times subsequent to the
date of this Agreement up to and including the Completion Date as if
repeated on each such day immediately before Completion:
(a) it is entitled to issue and allot the Consideration Shares free from
any claims, equities, liens, charges and encumbrances (including
without limitation any claims of the beneficiaries or other persons
under any settlement or trust document or otherwise);
(b) this Agreement constitutes and the other documents executed by it
which are to be delivered at Completion will, when executed,
constitute binding obligations of it in accordance with their
respective terms;
(c) the execution and delivery of, and the performance of its obligations
under this Agreement will not:
(i) result in a breach of any provision of the memorandum or articles
of association (or other similar constitutional documents) of it
(being a corporation or company); or
(ii) result in a breach of, or constitute a default under, any
instrument to which it is a party or by which it is bound; or
(iii) result in a breach of any order, judgment or decree of any court
or governmental agency to which it is a party or by which it is
bound.
-6-
<PAGE>
(d) it acknowledges that no action has been or will be taken with any
relevant securities, governmental or regulatory authorities in any
jurisdiction with respect to the execution, validity or performance of
this Agreement and confirms that (where applicable) it has obtained or
complied with all authorizations and/or regulations of any relevant
securities, governmental or regulatory authorities in connection with
the execution, validity and performance of this Agreement.
6.02 The Purchaser shall not (save only as may be necessary to give effect to
this Agreement) do or allow and shall procure that no act or omission will
occur before Completion which would constitute a material breach of any of
the Warranties if they were given at Completion or which would make any of
the Warranties materially inaccurate or misleading if they were so given.
6.03 In the event of it being found prior to Completion that any of the
Warranties are materially untrue or incorrect, or in the event of any
matter or thing arising or becoming known or being notified to the
Purchaser which is materially inconsistent with any of the Warranties or in
the event of the Purchaser becoming unable or failing to do anything in any
material respect required to be done by it at or before Completion, the
Vendor shall not be bound to complete the sell of the Sale Shares and the
Vendor may by written notice rescind this Agreement without liability on
its part. The right conferred upon the Vendor by this Clause is in addition
to and without prejudice to any other rights of the Vendor (including any
rights to claim damages or compensation from the Purchaser by reason of any
such breach or non-fulfilment) and failure to exercise it shall not
constitute a waiver of any such rights.
6.04 The Purchaser hereby undertakes to indemnify and keep indemnified the
Vendor against any loss or liability suffered by the Vendor as a result of
or in connection with any breach of any of the Warranties and against any
reasonable costs and expenses incurred in connection therewith provided
that the indemnity contained in this Clause shall be without prejudice to
any other rights and remedies of the Vendor in relation to any such breach.
7. FURTHER ASSURANCE
7.01 The Vendor and the Purchaser shall do and execute or procure to be done and
executed all such further acts, deeds, things and documents as may be
necessary to give effect to the terms of this Agreement.
7.02 None of the obligations or rights and remedies under this Agreement may be
assigned.
8. ENTIRE AGREEMENT
This Agreement constitutes the whole agreement between the parties hereto
in connection with the sale and purchase of the Sale Shares and supersedes
and cancels in all respects all previous letters of intent, correspondence,
understandings, agreements and undertakings (if any) between the parties
hereto with respect to the subject matter hereof, whether such be written
or oral.
9. NOTICES
Each notice, demand or other communication given or made under this
Agreement shall be in writing and delivered or sent to the other party at
its respective addresses indicated for such party on the signature page
hereof (or such other address as the addressee has by five (5) days
-7-
<PAGE>
prior written notice specified to the other party).
10. MISCELLANEOUS
10.01 All provisions of this Agreement shall so far as they are capable of being
performed or observed continue in full force and effect notwithstanding
Completion except in respect of those matters then already performed. The
Purchaser or the Vendor may take action for breach or non fulfilment of any
warranty, undertaking or provision contained in or of this Agreement before
or after Completion and Completion shall not in any way constitute any
waiver of any rights of the Purchaser.
10.02 If at any time any provision hereof is or becomes invalid, illegal,
unenforceable or incapable of performance in any respect, the validity,
legality, enforceability or performance of the remaining provisions hereof
shall not in any way be affected or impaired thereby.
10.03 Time shall be of essence of this Agreement.
10.04 This Agreement shall be binding on and shall enure for the benefit of the
successors and assignees of the parties hereto but, save as expressly
provided herein, shall not be capable of being assigned by any party
without the written consent of both parties hereto.
10.05 Each party to this Agreement shall pay its own costs and disbursements of
and incidental to this Agreement.
10.06 This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one
and the same document.
11. GOVERNING LAW AND JURISDICTION
11.01 This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong.
11.02 Any dispute, controversy or claim arising out of or in connection with
this Agreement, including any question regarding its existence, validity or
termination, or the breach, termination or invalidity thereof, shall be
settled by arbitration in accordance with the UNCITRAL Arbitration Rules as
at present in force and as may be amended from time to time. The appointing
authority shall be the Hong Kong International Arbitration Centre.
11.03 The place of arbitration shall be in Hong Kong and shall take place at the
Hong Kong International Arbitration Centre and there shall be only one
arbitrator. If the parties fail to agree on the designation of an
arbitrator within twenty (20) day period, the Hong Kong International
Arbitration Centre shall be requested to designate the single arbitrator.
Any arbitration shall be administered by the Hong Kong International
Arbitration Centre in accordance with its procedures for arbitration in
force at the date of this Agreement including such additions to the
UNCITRAL Arbitration Rules as are therein contained.
12. AMENDMENTS
This Agreement may not be amended without the written consent of all of the
parties hereto.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
-8-
<PAGE>
SCHEDULE 1
DETAILS OF THE COMPANY
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 100 ordinary shares
SHAREHOLDERS SHAREHOLDER NAME NO. OF
---------------- ORDINARY
SHARES
--------
Honour Rise Holdings Limited 20
Xinhua Finance Media Limited 80
---
TOTAL: 100
===
NAME UPPER STEP HOLDINGS LIMITED
DATE AND PLACE OF INCORPORATION 28 September 2005, British Virgin Islands
REGISTERED ADDRESS P.O. Box 957, Offshore Incorporations Centre,
Road Town, Tortola, British Virgin Islands
AUTHORISED CAPITAL US$50,000 divided into 50,000 shares of par
value US$1.00
ISSUED CAPITAL 500 ordinary shares
SHAREHOLDER SHAREHOLDER NAME NUMBER OF
---------------- ORDINARY
SHARES
---------
Honour Rise Services Limited 220
Xinhua Finance Media Limited 280
---
TOTAL: 500
===
DIRECTORS Fredy Bush
Dennis Pelino
Shelly Singhal
-9-
<PAGE>
SCHEDULE 2
THE CONSIDERATION SHARES
THE ACCORD GROUP CONSIDERATION SHARES
NUMBER OF CLASS A
COMMON SHARES OF THE
PURCHASER TO BE ISSUED
NAME OF THE VENDOR AND ALLOTTED
------------------ ----------------------
Honour Rise Services Limited 125,053
THE UPPER STEP CONSIDERATION SHARES
NUMBER OF CLASS A
COMMON SHARES OF THE
PURCHASER TO BE ISSUED
NAME OF THE VENDOR AND ALLOTTED
------------------ ----------------------
Honour Rise Services Limited 6,407,018
-10-
<PAGE>
SCHEDULE 3
DUE DILIGENCE DOCUMENTS
1. certified or notarised copy of the Vendor's certificate of incorporation
(and certificate of incorporation on change of name, if applicable);
2. certified or notarised copy of the Vendor's register of members;
3. certified or notarized copy of the certificate of incorporation (and
certificate of incorporation on change of name, if applicable) of all the
shareholders of the Vendor (applicable if the shareholder is a corporate
entity);
4. certified or notarized copy of the register of members (and certificate of
incorporation on change of name, if applicable) of all the shareholders of
the Vendor (applicable if the shareholder is a corporate entity);
5. original statement signed by a director of the Vendor describing its
general nature of business;
6. certified or notarised copy of the identification document on all the
shareholders of the Vendor (applicable if the shareholder is an
individual);
7. original or certified copy of the residential address proof on all the
shareholders of the Vendor (applicable if the shareholder is an
individual); and
8. certified or notarized copy of the certificate of incorporation or business
licence (as the case may be) of the shareholders of the shareholders of the
Vendor.
-11-
<PAGE>
SCHEDULE 4
FORM OF INSTRUMENT OF TRANSFER
Forms of instruments of transfer of shares from Honour Rise Services Limited to
Xinhua Finance Media Limited regarding Accord Group Investments Limited and
Upper Step Holdings Limited.
-12-
<PAGE>
IN WITNESS WHEREOF this Agreement has been executed on the day and year first
above written.
XINHUA FINANCE MEDIA LIMITED
per: /s/ Fredy Bush
--------------------------------
Authorized Signatory
Address: 3905-09 1 Grand Gateway
1 Hongqiao Lu
Shanghai 200030,
People's Republic of China
Telephone: 8621-6113-5900
Facsimile: 8621-6448-4955
HONOUR RISE SERVICES LIMITED
per: /s/
--------------------------------
Authorized Signatory
Address: c/o Richard Wang & Co.
18th Floor, Union Building
100 Yan An Road East
Shanghai 200002
People's Republic of China
Telephone: 8621-6326-5800
Facsimile: 8621-6321-8890