“ Tax Authority ” means any taxing, fiscal or other authority in the PRC, Hong Kong, or any other jurisdiction competent to impose, collect or enforce any liability to Tax, including the Hong Kong Inland Revenue Department, and the State Administration of Taxation of the PRC and its local tax bureaus.
“ Tax Returns ” shall mean any return (including any information return), report, statement, declaration, estimate, schedule, notice, notification, transfer pricing certificate and documents relating thereto, form, election, certificate or other document or information filed with or submitted to, or required to be filed with or submitted to, any Governmental Authority in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance of applicable Tax Law, including any amendment thereof or attachment thereto.
“ USD ” shall mean United States Dollars, the lawful currency of the United States of America.
Final Version
SHARE TRANSFER AGREEMENT
between
Power Star Holdings (Hong Kong) Limited
and
Glossy City (HK) Limited
and
Alibaba (China) Technology Co., Ltd.
Date: July 17, 2018
TABLE OF CONTENTS
Recitals
1
ARTICLE I
DEFINITIONS
1
SECTION 1.01
DEFINED TERMS
1
SECTION 1.02
DEFINITIONS
3
SECTION 1.03
OTHER INTERPRETATIVE PROVISIONS
4
ARTICLE II
SHARE TRANSFER
4
SECTION 2.01
SHARE TRANSFER
4
SECTION 2.02
TRANSFER PRICE PER SHARE AND SHARE TRANSFER PRICE
5
ARTICLE III
PAYMENT OF SHARE TRANSFER PRICE
6
SECTION 3.01
PAYMENT OF SHARE TRANSFER PRICE
6
SECTION 3.02
CONDITIONS TO COMPLETION OF THIS TRANSFER
6
SECTION 3.03
SHAREHOLDERS’ RIGHTS
7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE TRANSFERORS
7
SECTION 4.01
ORGANIZATION AND AUTHORITY
7
SECTION 4.02
NO CONFLICT
7
SECTION 4.03
CONSENTS AND APPROVALS
8
SECTION 4.04
TARGET SHARES
8
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE TRANSFEREE
8
SECTION 5.01
ORGANIZATION AND AUTHORITY
8
SECTION 5.02
NO CONFLICT
8
SECTION 5.03
CONSENTS AND APPROVALS
8
SECTION 5.04
FINANCIAL CAPACITY AND PERFORMANCE CAPACITY
9
ARTICLE VI
COVENANTS
9
SECTION 6.01
NOTICE OF DEVELOPMENTS
9
SECTION 6.02
CONFIDENTIALITY
9
SECTION 6.03
FURTHER ACTION
9
ARTICLE VII
INDEMNIFICATION
10
SECTION 7.01
LIABILITY FOR INDEMNIFICATION
10
SECTION 7.02
OTHER REMEDIES
10
ARTICLE VIII
EFFECTIVENESS AND TERMINATION
10
SECTION 8.01
EFFECTIVENESS
10
SECTION 8.02
TERMINATION
10
SECTION 8.03
SURVIVAL
11
ARTICLE IX
MISCELLANEOUS
11
SECTION 9.01
EXPENSES
11
SECTION 9.02
TAXES
11
SECTION 9.03
ASSIGNMENT
12
SECTION 9.04
ENTIRE AGREEMENT
12
SECTION 9.05
SEVERABILITY
12
SECTION 9.06
WAIVER
12
SECTION 9.07
AMENDMENT
13
SECTION 9.08
NO THIRD PARTY BENEFICIARIES
13
SECTION 9.09
NOTICES
13
SECTION 9.010
COUNTERPARTS
14
SECTION 9.011
GOVERNING LAW AND DISPUTE RESOLUTION
14
SECTION 9.012
LANGUAGE
14
SHARE TRANSFER AGREEMENT
This Share Transfer Agreement (this “ Agreement ”) is entered into on July 17, 2018 in Shanghai by and among:
(A) Power Star Holdings (Hong Kong) Limited , a company organized and existing under the Laws of Hong Kong, with its domicile at 28/F CITIC Tower, 1 Tim Mei Avenue, Central, Hong Kong (“ Power Star ”);
(B) Glossy City (HK) Limited , a company organized and existing under the Laws of Hong Kong, with its domicile at Level 54, Hopewell Centre 183 Queen’s Road East (“ Glossy City ”, and together with Power Star, the “ Transferors ”);
(C) Alibaba (China) Technology Co., Ltd. , a company organized and existing under the Laws of the PRC, with its domicile at 699 Wangshang Road, Binjiang District, Hangzhou (the “ Transferee ” and together with the Transferors, the “ Parties ”, and each individually a “ Party ” ).
RECITALS
WHEREAS, Focus Media Information Technology Co., Ltd. (the “ Target Company ”) is a company limited by shares organized and existing under the Laws of the PRC, and its Renminbi-denominated ordinary shares have been listed on the Shenzhen Stock Exchange (the “ Exchange ”) (with its stock abbreviation being “Focus Media” and its stock code being “002027”). As of the date hereof, the total share capital of the Target Company consists of 14,677,880,280 shares, of which 406,609,165 shares are held by Power Star, representing 2.77% of the total share capital of the Target Company and 367,792,435 shares are held by Glossy City, representing 2.51% of the total share capital of the Target Company.
WHEREAS, the Transferors intend to transfer to the Transferee, and the Transferee intends to acquire, 774,401,600 shares of the Target Company, representing 5.28% of the total share capital of the Target Company as of the date hereof.
NOW, THEREFORE, in consideration of the foregoing statement of facts and the mutual agreements and covenants hereinafter set forth, the Parties agree as follows:
ARTICLE I DEFINITIONS
SECTION 1.01 Defined Terms
In this Agreement, unless otherwise defined in the context, the following terms shall have the meanings set forth below:
“ Laws ” means the laws, regulations, rules and regulatory documents of the PRC or any country other than the PRC, or provincial, local or similar laws, regulations, rules and have meanings.
“ Working Day ” means any day other than Saturday, Sunday and public holidays in Hong Kong or the PRC as provided for by Laws.
“ Affiliate ” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by or under common control with such Person, or with respect to a natural person, also includes any of his/her immediate family members. For such purpose, “ Control ” means the possession of the power to directly or indirectly determine the management and policies of another Person through holding of voting securities, or by contract or otherwise.
“ Transfer Registration Date ” means the date on which the Target Shares are registered with CSDCC in the name of the Transferee in its A-share securities account.
“ RMB ” means the legal currency of the PRC.
“ Taxes ” means any and all taxes, fees, levies, impositions, customs duties and other charges of any type (together with any and all interest, fines, additional taxes and additional sums collected therefor) levied by any Governmental Authorities (including without limitation tax authorities).
“ Action ” means any claim, lawsuit, complaint, appeal, arbitration, settlement, adjudication, inquiry, investigation or other procedures instituted by or against any Person.
“ Hong Kong ” means the Hong Kong Special Administrative Region of the PRC.
“ Governmental Authority ” means governmental, regulatory or administrative department, organ or committee or any court, tribunal or judicial or arbitral body.
“ Governmental Order ” means any order, writ, judgment, injunction, ruling, adjudication, regulation or decision made by any Governmental Authority or jointly with any other Governmental Authority.
“ Governmental Approval ” means any consent, approval, authorization, waiver, permit, franchise, license, certificate, exemption, registration, filing, report or notice granted or made by any Governmental Authority.
“ PRC ” means the Peoples’ Republic of China, excluding only for the purpose of this Agreement Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan.
“ CSDCC ” means China Securities Depository and Clearing Company Limited Shenzhen Branch.
“ Person ” means any individual, partnership, joint-stock company, limited liability company, association, trust, unincorporated organization or other entity.
SECTION 1.02 Definitions
Each of the following terms is defined in the Section set forth opposite such term:
Definition
Location
“ Confidential Information ”
Section 6.03(a)
“ this Transfer ”
Section 2.01
“ this Agreement ”
Preamble
“ Target Shares ”
Section 2.01, with respect to Power Star, means 406,609,165 shares of the Target Company held by it, representing 2.77% of the total share capital of the Target Company; with respect to Glossy City, means 367,792,435 shares of the Target Company held by it, representing 2.51% of the total share capital of the Target Company.
“ Representative ”
Section 6.03(b)
“ Glossy City ”
Preamble
“ Share Transfer Price ”
Section 2.02(a)
“ Exchange ”
Recitals
“ Transfer Price Per Share ”
Section 2.02(a)
“ Target Company ”
Recitals
“ Power Star ”
Preamble
“ Non-breaching Party ”
Section 7.01
“ Transferee ”
Preamble
“ Parties ”
Preamble
“ Breaching Party ”
Section 7.01
“ Party ”
Preamble
“ Dispute ”
Section 9.11(b)
“ Payment Date ”
Section 3.01
“ CIETAC ”
Section 9.11(b)
“ Transferors ”
Preamble
SECTION 1.03 Other Interpretative Provisions
In this Agreement, unless otherwise provided or required in the context:
(a) “Hereof”, “herein”, “hereunder” and similar terms shall mean the entirety of this Agreement rather than any specific provision of this Agreement; any reference to any schedule, annex, section and sub-section shall mean the schedule, annex, section and sub-section of this Agreement, unless otherwise indicated.
(b) The term “include” does not have a restrictive meaning, and shall mean “include without limitation”.
(c) The table of contents and headings in this Agreement are inserted for reference only, and shall not in any way affect the interpretation of this Agreement.
(d) Any agreement, instrument or other document referred to in this Agreement shall mean the agreement, instrument or other document which may be amended, supplemented or modified from time to time as agreed upon by the Parties.
(e) This Agreement shall be construed to have been jointly drafted by the Parties, and shall not give rise to any assumption or burden of proof that is in favor of or adverse to any other Party on the ground that any provision in this Agreement is drafted by a Party.
ARTICLE II SHARE TRANSFER
SECTION 2.01 Share Transfer
Pursuant to the terms and conditions of this Agreement, the Transferors will transfer to the Transferee through transfer by agreement 774,401,600 Shares of the Target Company, representing 5.28% of the total share capital of the Target Company as of the date hereof (the “ Target Shares ”), of which 406,609,165 shares will be transferred by Power Star to the Transferee through transfer by agreement, representing 2.77% of the total share capital of the Target Company, and 367,792,435 shares will be transferred by Glossy City to the Transferee through transfer by agreement, representing 2.51% of the total share capital of the Target Company. The Transferee will acquire the Target Shares (“ this Transfer ”).
From the date hereof to the Transfer Registration Date of the Target Shares, if the Target Company makes profit distribution in the form of bonus shares or capitalize the capital reserves, the Transferors shall also transfer to the Transferee any bonus shares issued in connection with the Target Shares as part of the Target Shares, and the Transferee shall not be required to adjust any consideration with respect to the acquisition of such bonus shares (for the avoidance of doubt, the Share Transfer Price under Section 2.02 shall have included the price for Target Shares and any bonus shares issued in connection therewith).
SECTION 2.02 Transfer Price Per Share and Share Transfer Price
(a) The transfer price per share of the Target Shares (the “ Transfer Price Per Share ”) shall be RMB9.9167, which shall not be less than ninety percent (90%) of the closing price of the stocks of the Target Company as of the one (1) trading day immediately preceding the date hereof. The total transfer price payable by the Transferee for the Target Shares (the “ Share Transfer Price ”) shall be calculated on the basis of the Transfer Price Per Share multiplied by the number of the Target Shares. The number of the Target Shares to be transferred by Power Star and Glossy City, percentage of shares to be transferred and the Share Transfer Price therefor are set forth in the table below:
No.
Name of
Transferor
Number of Target
Shares
Percentage of Shares
to be Transferred
Share Transfer
Price (RMB)
1.
Power Star
406,609,165
2.77
%
4,032,221,107
2.
Glossy City
367,792,435
2.51
%
3,647,287,240
Total
774,401,600
5.28
%
7,679,508,347
(b) For the avoidance of doubt, each of the Transfer Price Per Share and the Share Transfer Price set forth above shall be tax-inclusive, which includes the withholding income tax, value-added tax and relevant surcharge and stamp duty required to be paid by the Transferors under the applicable tax laws of the PRC and any applicable taxes required to be paid in the jurisdiction where the Transferors are located.
(c) From the date hereof to the Transfer Registration Date of the Target Shares, if the Target Company makes profit distribution in the form of cash, and the Transferors actually receives such distribution, the Share Transfer Price hereunder shall be adjusted according to the following formula: adjusted Share Transfer Price = Share Transfer Price ― (the number of the Target Shares × the amount of pre-tax dividend per share). The amount of pre-tax dividend per share shall be calculated by taking into account the distribution of stock dividends by the Target Company, if any, and shall be adjusted to be equal to the amount of pre-tax dividend per share calculated based on the total share capital of the Target Company as of the date hereof by adopting the approach of restoring rights.
ARTICLE III PAYMENT OF SHARE TRANSFER PRICE
SECTION 3.01 Payment of Share Transfer Price
To the extent that all conditions set forth in Section 3.02 hereof are satisfied or waived (except those which shall be satisfied on the Payment Date pursuant to their terms), the Parties shall complete the transfer of the Target Shares with CSDCC within one (1) Working Day after delivery of the written notice by the Transferors under Section 3.02 hereof, and the Transferee shall pay the Share Transfer Price to the Transferors’ respective bank accounts set forth below on the same day, and provide the Transferors with the proof of bank remittance of the Share Transfer Price to the Transferors’ respective accounts as below prior to the final completion of the transfer of the Target Shares by the Parties:
Transferor
Account Name
Account Number
Power Star
Power Star Holdings (Hong Kong) Limited
Glossy City
Glossy City (HK) Limited
The day when the Share Transfer Price is fully remitted to such bank accounts shall be referred to as the “ Payment Date ” hereunder. The Parties agree that, upon the receiving bank confirming that the Share Transfer Price has been remitted to the bank accounts designated by the Transferors, the Transferee shall be deemed to have fully performed its payment obligation with respect to its acquisition of the Target Shares under this Agreement.
SECTION 3.02 Conditions to Completion of This Transfer
Each Party’s obligation to complete this Transfer under this Agreement shall be subject to the satisfaction or written waiver by such Party of each of the following conditions prior to or on the Payment Date:
(a) Representations, Warranties and Covenants. The representations and warranties of the other Party in this Agreement shall be true and accurate as of the date hereof, and shall be true and accurate as of the Payment Date and have the same force and effect as if they were made on the Payment Date; the covenants and agreements contained in this Agreement which shall be performed by the other Party on or prior to the Payment Date shall have been performed;
(b) No Certain Governmental Orders. No Governmental Authority has enacted, issued, promulgated, implemented or adopted any Law or Governmental Order that will render illegal or restrain or prohibit the transactions contemplated hereunder;
(c) No Legal Proceedings or Actions. No Action has occurred or may occur against any Party, which might restrain the transactions contemplated hereunder, materially alter the terms of the transactions contemplated hereunder or is likely to render it impossible or unlawful to consummate such transactions;
(d) Approval and Consent. The Exchange shall have issued its confirmation of consent to this Transfer in accordance with this Agreement and the supplementary agreements, if any, entered into by the Parties in respect of this Transfer;