Agreement for Sale and Purchase of Shares - Sino Investment Holdings Ltd., Fine Power Ltd., Quality Idea Ltd. and Xinhua Finance Media Ltd.
DATED THE 22 DAY OF SEPTEMBER 2006
SINO INVESTMENT HOLDINGS LIMITED
AND
FINE POWER LIMITED
AND
QUALITY IDEA 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................................................. 2
2. SALE AND PURCHASE OF THE SALE SHARES........................ 3
3. CONSIDERATION............................................... 4
4. COMPLETION.................................................. 4
5. REPRESENTATIONS, WARRANTIES AND COVENANTS................... 5
6. FURTHER ASSURANCE........................................... 6
7. ENTIRE AGREEMENT............................................ 7
8. NOTICES..................................................... 7
9. MISCELLANEOUS............................................... 7
10. GOVERNING LAW AND JURISDICTION.............................. 7
11. AMENDMENTS.................................................. 7
12. ACKNOWLEDGEMENT............................................. 8
SCHEDULE 1 DETAILS OF THE COMPANY...................................... 9
SCHEDULE 2 THE CONSIDERATION SHARES.................................... 11
SCHEDULE 3 DUE DILIGENCE DOCUMENTS..................................... 12
EXECUTION................................................................ 13
<PAGE>
THIS AGREEMENT is made on the 22 day of September 2006
BETWEEN:
(1) SINO INVESTMENT HOLDINGS LIMITED, a company incorporated under the laws of
the Commonwealth of The Bahamas with registration number 141019B and having
its registered office located at Charlotte House, Charlotte Street, P.O.
Box N-341, Nassau, Bahamas ("SINO");
(2) FINE POWER LIMITED, a company incorporated in British Virgin Islands with
registration number 687687 and having its registered office located at P.O.
Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin
Islands ("FINE POWER");
(3) QUALITY IDEA LIMITED, a company incorporated in British Virgin Islands with
registration number 688392 and having its registered office located at P.O.
Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin
Islands ("QUALITY IDEA") together with Sino and Fine Power, the "VENDORS";
and
(4) XINHUA FINANCE MEDIA LIMITED, a company incorporated in the Cayman Islands
with registration number 157511 and having its registered office located at
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) Sino is the legal and beneficial owner of 45 Upper Step Shares representing
9% of the entire issued share capital of Upper Step and 61 Accord Group
Shares representing 61% of the entire issued share capital of Accord Group;
(D) Fine Power is a wholly-owned subsidiary of Sino and the legal and
beneficial owner of 80 Upper Step Shares representing 16% of the entire
issued share capital of Upper Step;
(E) Quality Idea is a wholly-owned subsidiary of Sino and the legal and
beneficial owner of 60 Upper Step Shares representing 12% of the entire
issued capital of Upper Step; and
(F) The Vendors wish to sell their entire shareholding in each of Upper Step
and Accord Group to the Purchaser and, in reliance on the representations,
warranties and undertakings set out herein, the Purchaser wishes to acquire
all the Sale Shares (as defined below) upon and subject to the terms and
conditions set out herein.
NOW IT IS HEREBY AGREED as follows:
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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 451,107 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 ordinary shares of US$1.00 each
in the issued share capital of Accord
Group;
"BUSINESS DAY" means a day (other than a Saturday or a
day on which a tropical cyclone warning
No. 8 or above or a black rainstorm
warning is hoisted in Hong Kong at any
time between 9:00 a.m. and 5:00 p.m.) on
which banks are open for business in Hong
Kong;
"CASH PAYMENT" shall have the meaning prescribed to it
under Clause 3.01;
"COMPANIES" means Accord Group and Upper Step;
"COMPANIES ORDINANCE" means the Companies Ordinance (Chapter 32
of the Laws of Hong Kong) as amended from
time to time;
"COMPLETION" means completion of the events set out in
Clause 4;
"COMPLETION DATE" means the actual date of Completion;
"CONSIDERATION SHARES" means the aggregate of the Accord Group
Consideration Shares and Upper Step
Consideration Shares;
"HONG KONG" means the Hong Kong Special Administrative
Region of the People's Republic of China;
"HK$" means Hong Kong dollars, the lawful
currency of Hong Kong;
"SALE SHARES" means the aggregate of (45), (80) and (60)
Upper Step Shares which are legally and
beneficially owned by Sino, Fine Power and
Quality Idea, respectively, representing
37% of the entire issued share capital of
Upper Step and (61) Accord Group Shares
which are legally and beneficially owned
by Sino, representing 61% of the entire
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;
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"UPPER STEP CONSIDERATION SHARES" means the aggregate of 6,478,437 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 ordinary shares of US$1.00 each
in the issued share capital of Upper Step;
"US$" means United States Dollars, the lawful
currency of the United States of America;
"WARRANT" means the warrant to be granted by the
Purchaser in favour of Sino for the
purchase of 4,099,968 Common Shares of the
Purchaser;
"WARRANTIES" those representations and warranties
referred to in Clause 5.
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
"VENDORS", 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 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 Sino may have for the issuance of the Sale Shares.
2. SALE AND PURCHASE OF THE SALE SHARES
2.01 Upon and subject to the terms and conditions of this Agreement, the Vendors
shall sell or procure the sale to the Purchaser of their respective 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 Vendors shall transfer the legal and beneficial title to their
respective 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 Vendors waive 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 and/or under any shareholders' agreement or in
any other way and undertake to take all steps necessary to ensure that any
rights of pre-emption over any of the Sale Shares are waived.
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2.05 The Vendors agree that to the extent that they have 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 them, 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 consist of:
(a) the Consideration Shares; (b) the amount of US$15,100,000 ("CASH
PAYMENT") and (c) the grant of the Warrant. The Consideration Shares shall
be issued and allotted to Sino solely in such number and with such
designation as set out opposite its name in Schedule 2 with such rights as
are equivalent to the rights attached to the Sale Shares being sold to the
Purchaser. Each of Fine Power and Quality Idea hereby irrevocably direct
that any Consideration Shares to which it may be entitled shall be issued
to Sino and the Purchaser shall be released from any obligation hereunder
upon the issuance of such Consideration Shares to Sino.
3.02 Subject to Completion having occurred, the Consideration Shares shall be
allotted and issued as fully paid.
3.03 The Vendor hereby acknowledges that part of the Cash Payment amounting to
US$9,100,000 has been duly paid and received from the Purchaser. The
balance of the Cash Payment being US$6,000,000 (the "CASH BALANCE") shall
be payable by the Purchaser by wire transfer or by such other manner as
mutually agreed by the parties hereto.
3.04 The Warrant shall be granted to Sino in such manner and at such times to be
agreed by Sino and the Purchaser.
4. COMPLETION
4.01 Completion shall take place on a date to be determined by the Purchaser and
at such place as determined by the Purchaser.
4.02 At Completion, the following business shall be transacted:
(a) the Vendors shall deliver or shall procure the delivery of the
following to the Purchaser:
(i) duly executed transfers of the Sale Shares by the registered
holders thereof in favour of the Purchaser or such other
person(s) as it may nominate together with the relevant share
certificates;
(ii) such other documents as may be reasonably required 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 as it may nominate) to become the
registered holder thereof; and
(iii) 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 together with share
certificates in respect of the Sale Shares to the Companies for
registration;
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(ii) approve the issue and allotment of the Consideration Shares to
Sino in accordance with Clause 3;
(iii) pay the Cash Balance in accordance with the provisions contained
herein; and
(iv) grant the Warrant in favour of Sino on terms as agreed between
the Purchaser and Sino.
(c) Sino shall:
(i) deliver to the Purchaser the due diligence documents as set out
in the Schedule hereto and all other documents as may be required
for the issuance and registration of the Consideration Shares in
the name of Sino;
4.03 The Purchaser shall not be obliged to complete this Agreement unless the
Vendors comply fully with the requirements of Clause 4.02(a).
4.04 If the obligations of the Vendors under Clause 4.02(a) 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 and remedies under this Agreement); or
(c) treat this Agreement as terminated for breach of a condition, without
prejudice to any rights and remedies it may have in respect hereof.
4.05 The Vendors jointly and severally undertake to indemnify the Purchaser
against any loss, expenses or damages 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
5.01 Each of the Vendors represent and warrant to the Purchaser (for itself and
as trustee for the Companies (as the case may be)) 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 legal and beneficial owner of, or otherwise have full
authority, including all shareholder and/or regulatory authority, to
sell, transfer or dispose of, the Sale Shares registered in its name;
(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
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<PAGE>
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); 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.
5.02 The Vendors 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 Vendors 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
Vendors 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 Vendors hereby jointly and severally undertake 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. FURTHER ASSURANCE
6.01 The Vendors 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.
6.02 Save as provided in Clause 9.04, none of the obligations or rights and
remedies under this Agreement may be assigned.
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<PAGE>
7. 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.
8. 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 prior
written notice specified to the other party).
9. MISCELLANEOUS
9.01 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 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.
9.02 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.
9.03 Time shall be of essence of this Agreement.
9.04 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 the Purchaser.
9.05 Each party to this Agreement shall pay its own costs and disbursements of
and incidental to this Agreement.
9.06 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.
10. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and the parties hereto hereby irrevocably submit to the
non-exclusive jurisdiction of the courts of Hong Kong.
11. AMENDMENTS
11.01 The Purchaser may at any time make amendments and changes to this
Agreement in such manner as it may deem fit without reference to and/or
consent of the Vendors so long such amendments and changes do not
materially affect its rights or obligations as provided for under this
Agreement.
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11.02 Save for the amendments allowed under Clause 11.01, this Agreement may not
be amended without the written consent of all of the parties hereto.
12. ACKNOWLEDGEMENT
The Vendors acknowledge that in the preparation of this Agreement and any
other document in connection therewith, Preston Gates & Ellis are acting
solely as the legal adviser to the Purchaser, and the Vendors have taken
all necessary independent advice that they seem appropriate prior to
signing this Agreement and any other document in connection therewith. The
Vendors acknowledge that execution of this Agreement and any sale of its
Sale Shares pursuant hereto may have significant adverse legal and tax
implications and have been strongly encouraged to seek legal and tax advice
before executing this Agreement. By executing this Agreement, the Vendors
acknowledge that none of the Purchaser, the members of the Companies nor
their respective legal and accounting advisors have in whatsoever manner
provided it with any form of legal or tax advice.
-EXECUTION BEGINS ON PAGE 12
-THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY-
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<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
AUTHORIZED SHARE CAPITAL US$50,000 made up of 50,000 ordinary shares of
US$1.00 each
ISSUED SHARE CAPITAL 100 ordinary shares
SHAREHOLDERS No. of
Ordinary
Shareholder Name Shares
---------------- -----------
Honour Rise Holdings Limited 20
Sino Investment Holdings Limited 61
Xinhua Finance Media Limited 19
---
TOTAL: 100
===
DIRECTORS Dennis Pelino
Shelly Singhal
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
AUTHORIZED CAPITAL US$50,000 divided into 50,000 shares of par
value US$1.00
ISSUED CAPITAL 500 ordinary shares
Number of
Ordinary
SHAREHOLDERS Shareholder Name Shares
---------------- -----------
Fine Power Limited 80
Honour Rise Services Limited 220
Quality Idea Limited 60
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Sino Investment Holdings Limited 45
Xinhua Finance Media Limited 95
---
TOTAL: 500
===
DIRECTORS Fredy Bush
Dennis Pelino
Shelly Singhal
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SCHEDULE 2
THE CONSIDERATION SHARES
THE ACCORD GROUP CONSIDERATION SHARES
NUMBER OF CLASS A
COMMON SHARES OF
THE PURCHASER TO BE
NAME OF THE VENDOR ISSUED AND ALLOTTED
------------------ -------------------
Sino Investment Holdings
Limited 451,107
THE UPPER STEP CONSIDERATION SHARES
NUMBER OF CLASS A
COMMON SHARES OF
THE PURCHASER TO BE
NAME OF THE VENDORS ISSUED AND ALLOTTED
------------------- -------------------
Sino Investment Holdings
Limited 6,478,437
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SCHEDULE 3
DUE DILIGENCE DOCUMENTS
1. Certified or notarised copy of Sino's certificate of incorporation (and
certificate of incorporation on change of name, if applicable);
2. certified or notarised copy of Sino's register of members;
3. original statement signed by a director of Sino describing its general
nature of business;
4. originally completed, dated and signed personal declaration of Sino in the
prescribed form;
5. certified or notarised copy of the identification document on all the
shareholders of Sino; and
6. original or certified copy of the residential address proof on all the
shareholders of Sino.
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<PAGE>
IN WITNESS WHEREOF this Agreement has been executed on the day and year first
above written.
XINHUA FINANCE MEDIA LIMITED
per: /s/
--------------------------------
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
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<PAGE>
SINO INVESTMENT HOLDINGS LIMITED
per: /s/
--------------------------------
Authorized Signatory
Address:
----------------------------
Telephone:
--------------------------
Facsimile:
--------------------------
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<PAGE>
FINE POWER LIMITED
per: /s/
--------------------------------
Authorized Signatory
Address:
----------------------------
Telephone:
--------------------------
Facsimile:
--------------------------
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<PAGE>
QUALITY IDEA LIMITED
per: /s/
--------------------------------
Authorized Signatory
Address:
----------------------------
Telephone:
--------------------------
Facsimile:
--------------------------
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<PAGE>
DATED THE 10 DAY OF NOVEMBER 2006
SINO INVESTMENT HOLDINGS LIMITED
AND
FINE POWER LIMITED
[Chinese Characters]
AND
QUALITY IDEA LIMITED
[Chinese Characters]
AND
XINHUA FINANCE MEDIA LIMITED
[Chinese Characters]
----------
AMENDING AGREEMENT TO THE
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
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<PAGE>
THIS AMENDING AGREEMENT is made as of the 10 day of November 2006.
BETWEEN:
(1) SINO INVESTMENT HOLDINGS LIMITED, a company incorporated under the laws of
the Commonwealth of The Bahamas with registration number 141019B and having
its registered office located at Charlotte House, Charlotte Street, P.O.
Box N-341, Nassau, Bahamas ("SINO");
(2) FINE POWER LIMITED, a company incorporated in British Virgin Islands with
registration number 687687 and having its registered office located at P.O.
Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin
Islands ("FINE POWER");
(3) QUALITY IDEA LIMITED, a company incorporated in British Virgin Islands with
registration number 688392 and having its registered office located at P.O.
Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin
Islands ("QUALITY IDEA") together with Sino and Fine Power, the "VENDORS";
and
(4) XINHUA FINANCE MEDIA LIMITED, a company incorporated in the Cayman Islands
with registration number 157511 and having its registered office located at
Century Yard, Cricket Square, Hutchins Drive, P.O. Box 2681GT, George Town,
Grand Cayman, British West Indies (the "PURCHASER")
WHEREAS:
(A) The Vendors and the Purchaser entered into an agreement (the "PURCHASE
AGREEMENT") for sale and purchase of shares dated 22 September 2006 whereby
the Vendors agreed to sell their entire shareholding in each of Upper Step
Holdings Limited and Accord Group Investments Limited upon and subject to
the terms and conditions set out therein.;
(B) The parties intend to enter into this Amending Agreement to amend the terms
of the Purchase Agreement in the manner hereinafter provided.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained in this Amending Agreement (the receipt and adequacy of
which consideration with respect of each of the parties hereto are hereby
acknowledged), the parties agree as follows:
1. The Purchase Agreement be amended by inserting in Clause 1.01 of the
Purchase Agreement immediately following the definition of "Accord Group
Consideration Shares", the following paragraph:
""ACCORD GROUP SALE SHARES" means (61) Accord Group Shares which are
legally and beneficially owned by Sino,
representing 61% of the entire issued shares
capital of Accord Group;"
2. The Purchase Agreement be amended by inserting in Clause 1.01 of the
Purchase Agreement immediately following the definition of "Upper Step
Consideration Shares", the following paragraph:
""UPPER STEP SALE SHARES" means the aggregate of (45), (80) and (60)
Upper Step Shares which are legally and
beneficially owned by Sino, Fine Power and
Quality Idea, respectively, in the aggregate
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representing 37% of the entire issued share
capital of Upper Step;"
3. The Purchase Agreement be amended by deleting the definition for the term
"Sales Shares" under Clause 1.01 of the Purchase Agreement in its entirety
and replacing therefor the following:-
"means, collectively, the Accord Group Sale Shares and the Upper Step Sale
Shares;"
4. The Purchase Agreement be amended by deleting Clause 3.01 in its entirety
and replacing therefor the following paragraph:
"The total consideration for the sale of the Accord Group Sale Shares shall
consist of the Accord Group Consideration Shares. The total consideration
for the sale of the Upper Step Sale Shares shall consist of (a) Upper Step
Consideration Shares; (b) the amount of US$9,100,000 ("CASH PAYMENT") and
(c) the grant of the Warrant. The Consideration Shares shall be issued and
allotted to Sino solely in such number and with such designation as set out
opposite its name in Schedule 2 with such rights as are equivalent to the
rights attached to the Sale Shares being sold to the Purchaser. Each of
Fine Power and Quality Idea hereby irrevocably direct that any
Consideration Shares to which it may be entitled shall be issued to Sino
and the Purchaser shall be released from any obligation hereunder upon the
issuance of such Consideration Shares to Sino."
5. The Purchase Agreement be amended by deleting Clause 3.03 in its entirety
and replacing therefor the following:
"The Vendor hereby acknowledges that the Cash Payment amounting to
US9,100,000 has been duly paid by and received from the Purchaser."
6. The Purchase Agreement be amended by adding the following Clause 3.05:
"The Purchase agrees to satisfy Sino's obligation to pay US$6,607,143 to
Sungolden Limited pursuant to Clause 4.2(a) of the Loan and Share Purchase
Agreement entered into among Sungolden Limited, the Purchaser and Sino on
28 February 2006 (the "First Purchase Agreement"), being Sino's portion of
the Second Payment for the Sale Shares (as such terms are defined under the
First Purchase Agreement"), the ("Sino Payment").
7. Sino hereby acknowledges that the Sino Payment has been duly paid by the
Purchaser to Sungolden Limited. Save as aforementioned, the remaining
provisions of the Purchase Agreement remain unamended and in full force and
effect.
8. The parties hereto agree that the amendments as contained in this Amending
Agreement shall be effective from and as of 22 September 2006.
9. This Amending Agreement may be executed by the Parties in counterparts
which, when so executed and delivered, shall be an original, but all such
counterparts shall together constitute one and the same instrument and
shall be read together with and deemed to be part of the Purchase
Agreement.
10. The provisions of Clause 6 (Further Assurance), 8 (Notices), 9
(Miscellaneous) and 10 (Governing Law and Jurisdiction) are incorporated
mutatis mutandis into this Amending Agreement.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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<PAGE>
IN WITNESS WHEREOF this Amending Agreement was made as of the day and year first
above written.
XINHUA FINANCE MEDIA LIMITED
per: /s/
--------------------------------
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
SINO INVESTMENT HOLDINGS LIMITED
per: /s/
--------------------------------
Authorized Signatory
Address: Suite 2003-5 Vicwood Plaza
199 Des Voeux Road, Central
Hong Kong
Telephone: 852-3196-3720
Facsimile: 852-2541-8266
FINE POWER LIMITED
per: /s/
--------------------------------
Authorized Signatory
Address: Suite 2003-5 Vicwood Plaza
199 Des Voeux Road, Central
Hong Kong
Telephone: 852-3196-3720
Facsimile: 852-2541-8266
-20-
<PAGE>
QUALITY IDEA LIMITED
PER: /s/
--------------------------------
AUTHORIZED SIGNATORY
ADDRESS: Suite 2003-5 Vicwood Plaza
199 Des Voeux Road, Central
Hong Kong
Telephone: 852-3196-3720
Facsimile: 852-2541-8266
-21-