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(e) Filing with the Ministry of Commerce. The Target Company shall have completed its filing of investor information with respect of this Transfer on the Unified Platform of the Administrative System of the Ministry of Commerce; and
(f) Share Transfer Notice. The Parties shall have submitted to CSDCC all application materials necessary for the registration of transfer of the Target Shares and received CSDCC’s written notice stating that such application materials satisfy the requirements of CSDCC and the share transfer can proceed.
The Transferors shall, within three (3) Working Days after all conditions set forth above are satisfied (except those which shall be satisfied on the Payment Date pursuant to their terms), deliver a written notice to the Transferee, notifying the Transferee that such conditions have been satisfied.
SECTION 3.03 Shareholders’ Rights
(a) The Transferors undertake that from the date hereof to the Transfer Registration Date, subject to the applicable Laws and regulations, the Transferors shall seek the opinions from and reach a consensus with the Transferee in connection with the matters to be considered at the shareholders’ general meeting of the Target Company.
(b) From the Transfer Registration Date, the Transferee shall be entitled to all rights, interests and profits in respect of the Target Shares available to a shareholder of the Target Company.
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE TRANSFERORS
Each of the Transferors hereby represents and warrants to the Transferee as follows:
SECTION 4.01 Organization and Authority
It is a corporation duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation and has all requisite power, authority and authorization and full legal capacity to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereunder. The execution and delivery by it of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereunder have been duly authorized by all requisite corporate action on the part of it. This Agreement has been duly executed and delivered by it, and (assuming due authorization, execution and delivery by the Transferee) this Agreement constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms.
SECTION 4.02 No Conflict
The execution, delivery and performance by it of this Agreement will not (a) violate, conflict with or result in the breach of any provision of its articles of association or other constitutional documents, or (b) violate or conflict with any applicable Law or Governmental Order, or (c) conflict with or violate any contract or instrument to which it is a party or by which any of its assets is bound or affected, including, without limitation, any sale restriction covenant made by it to regulatory authorities and/or public investors.
SECTION 4.03 Consents and Approvals
Except for the Governmental Approvals listed in Section 3.02 hereof, no Governmental Approval or consent, permit or authorization of other third party Persons (including creditors) is required on the part of it in connection with the execution, delivery and performance of this Agreement and the completion of this Transfer, and it has obtained all necessary internal approvals.
SECTION 4.04 Target Shares
It is the legal and beneficial owner of the Target Shares. The Target Shares are tradable shares without restrictions on the sale thereof and are non-assessable, free and clear of any encumbrance or any third party right (including right of first refusal); to the knowledge of the Transferors, there are no outstanding litigation, arbitration, other disputes, judicial freezing or other restrictions on rights thereof.
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE TRANSFEREE
The Transferee hereby represents and warrants to the Transferors as follows:
SECTION 5.01 Organization and Authority
It is a limited liability company duly organized, validly existing and in good standing under the Laws of the PRC and has all requisite power, authority and authorization and full legal capacity to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereunder. The execution and delivery by it of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereunder have been duly authorized by all requisite internal approvals on the part of it. This Agreement has been duly executed and delivered by it, and (assuming due authorization, execution and delivery by the Transferors) this Agreement constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms.
SECTION 5.02 No Conflict
The execution, delivery and performance by it of this Agreement will not (a) violate, conflict with or result in the breach of any provision of its articles of association or other constitutional documents, (b) violate or conflict with any applicable Law or Governmental Order, or (c) conflict with or violate any contract or instrument to which it is a party or by which any of its assets is bound or affected.
SECTION 5.03 Consents and Approvals
Except for the Governmental Approvals listed in Section 3.02 hereof, no Governmental Approval or consent, permit or authorization of other third party Persons (including creditors) is required on the part of it in connection with the execution, delivery and performance of this Agreement and the completion of this Transfer, and it has obtained all necessary internal approvals.
SECTION 5.04 Financial Capacity and Performance Capacity
As of the Payment Date, the Transferee has sufficient and legal source of funds to enable it to accept the transfer of the Target Shares in accordance with the terms and conditions of this Agreement and fully pay the Share Transfer Price in a timely manner in accordance with this Agreement.
ARTICLE VI COVENANTS
SECTION 6.01 Notice of Developments
Each Party shall promptly notify the other Party in writing of (a) any and all events, circumstances and facts which could result in any breach of any of its representations, warranties or covenants hereunder or which could have the effect of making any of its representations or warranties hereunder untrue or inaccurate in any respect, and (b) any fact, change, condition and circumstance which is known to it and which will or could reasonably be expected to render it impossible to satisfy any condition set forth in Section 3.02 hereof.
SECTION 6.02 Confidentiality
(a) Unless otherwise agreed in writing by the Parties, each Party shall not and shall cause its respective Affiliates and Representatives not to directly or indirectly disclose or permit the disclosure of (i) the existence or contents of this Agreement, this Transfer and the transactions contemplated hereunder, (ii) any terms, conditions or other respects of this Agreement, this Transfer and the transactions contemplated hereunder, or (iii) the negotiations of this Agreement, this Transfer and the transactions contemplated hereunder (the “ Confidential Information ”), except for the information that is or becomes generally available to the public or enters the public domain other than as a result of the information disclosure made by a Party in violation of this Agreement.
(b) Notwithstanding the foregoing, each Party may (i) only for the purpose of its own use, disclose the Confidential Information to its employees, officers, directors, partners, agents, accountants, legal counsels, representatives or advisors (the “ Representatives ”) on an as-needed basis, provided that such Party shall ensure that such Representatives are aware of and undertake the same confidentiality obligation; (ii) pursuant to the provisions of applicable Laws or applicable stock exchange rules, disclose to any relevant Governmental Authority or stock exchange the Confidential Information required to be disclosed by applicable Laws; and (iii) to the extent reasonable and necessary for any Party to comply with applicable Tax Law, as required by applicable Laws or Governmental Authority, such Party may disclose the information relating to the transactions contemplated hereunder, provided that in the case of (iii), the disclosing Party shall (to the extent permitted by applicable Laws), within a reasonable time limit prior to the disclosure, discuss with the other Parties and use its commercially reasonable efforts to obtain confidential treatment of the disclosed information.
SECTION 6.03 Further Action
Each of the Parties shall use all reasonable efforts to take, or cause to be taken, all necessary and appropriate actions, do or cause to be done all things necessary, proper or advisable under applicable Laws, and to execute and deliver such documents and other papers, as may be required to perform the provisions of this Agreement and consummate the transactions contemplated hereunder.
ARTICLE VII INDEMNIFICATION
SECTION 7.01 Liability for Indemnification
(a) If a Party (the “ Breaching Party ”) commits a breach of any of its representations, statements, warranties, covenants, agreements or obligations hereunder, the Breaching Party shall indemnify the other Party (the “ Non-breaching Party ”) from and against all losses, damages, costs and expenses, interest and penalties (including reasonable attorneys’ fee and consulting fees) suffered or incurred by the Non-breaching Party due to such breach and the liability of the Parties for indemnification hereunder shall be limited to the Share Transfer Price.
SECTION 7.02 Other Remedies
The Parties agree that the indemnification as provided for in Section 7.01 shall not be the sole remedy available to the Non-breaching Party in the case of any breach by the Breaching Party of its representations and warranties hereunder or any failure by the Breaching Party to perform and comply with any of its covenants and agreements hereunder. If the Breaching Party fails to duly perform or violates any provisions of this Agreement, the Non-breaching Party may seek any other rights or any other remedies available under this Agreement and the Laws of the PRC applicable to this Agreement.
ARTICLE VIII EFFECTIVENESS AND TERMINATION
SECTION 8.01 Effectiveness
This Agreement shall be formed and become effective upon due execution by the authorized representatives of the Parties.
SECTION 8.02 Termination
This Agreement may be terminated at any time prior to the Payment Date as follows:
(a) by the Non-breaching Party if, between the date hereof and the Payment Date: (i) an event or circumstance occurs that has or could reasonably be expected to have resulted in a material adverse effect or renders it impossible to fulfill any condition set forth in Section 3.02, (ii) any representations and warranties of any Party contained herein shall not have been true or correct in any material respect or such Party materially violates any covenants or agreements contained herein, or (iii) the Transferors or the Transferee makes a general assignment for the benefit of creditors, or any legal proceeding shall be instituted by or against the Transferors or the Transferee seeking to declare entry into bankruptcy proceedings by the Transferors or the Transferee, or the Transferors or the Transferee as bankrupt or insolvent, or seeking liquidation, winding up, reorganization or restructuring of their or its debts under any Law relating to bankruptcy, insolvency or reorganization, and any of the foregoing shall not have been cured or removed within fifteen (15) Working Days after a written notice is given by the Non-breaching Party;
(b) by any Party if this Transfer shall not have been completed within six (6) months from the date hereof (or any period extended by the Parties through mutual agreement); provided that the right to terminate this Agreement under this Section 8.02(b) shall not be available to any Party whose failure to materially perform any of its obligations hereunder shall have been the cause of, or shall have resulted in, the failure of this Transfer to be completed on or prior to such date;
(c) by any Party in the event that any competent Governmental Authority or stock exchange shall have issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the transactions contemplated hereunder and such order, decree, ruling or other action shall have become final and non-appealable;
(d) by the Transferors if the conditions for payment of the Share Transfer Price shall have been satisfied but the Transferee shall not have paid the Share Transfer Price within thirty (30) days from the date on which such conditions are satisfied; or
(e) by the mutual written consents of the Parties.
SECTION 8.03 Survival
In the event of termination of this Agreement as provided for in Section 8.02, this Agreement shall forthwith become void and there shall be no liability on the part of any Party (unless otherwise provided for herein), provided that (a) Section 6.02, Article VII, Section 8.02, this Section 8.03 and Article IX hereof shall survive the termination of this Agreement, and (b) nothing herein shall relieve any Party from liability for any breach of this Agreement prior to the termination of this Agreement.
ARTICLE I X MISCELLANEOUS
SECTION 9.01 Expenses
All fees, costs and expenses, including, without limitation, fees of legal counsels and financial advisors, incurred in connection with the preparation, execution and performance of this Agreement and this Transfer shall be paid by the Party incurring such fees, costs and expenses.
SECTION 9.02 Taxes
(a) Each Party shall bear and pay all the Taxes imposed on it pursuant to all applicable Laws airing out of or in connection with the execution and performance of this Agreement and implementation of the transactions contemplated hereunder.
(b) Within twenty (20) Working Days after the Payment Date, the Transferors shall, or shall engage one of the Big Four international certified public accounting firms as their Tax advisor to, file Tax returns under applicable Laws to competent Tax authorities of the PRC in connection with income tax, value-added tax and relevant surcharges and stamp duty, if necessary, payable by the Transferors under this Transfer and shall truthfully disclose information to competent Tax authorities of the PRC. After the payment of such income tax, value-added tax and relevant surcharges and stamp duty, if necessary, payable by the Transferors under this Transfer, the Transferors shall provide the Transferee with Tax collection decisions issued by competent Tax authorities, tax computation forms, tax returns and the Transferors’ Tax payment receipts and any other tax clearance certificates.
SECTION 9.03 Assignment
This Agreement shall be binding upon and inure to the benefit of successors and assigns of the Parties. Neither Party may assign this Agreement without the prior written consent of the other Party.
SECTION 9.04 Entire Agreement
This Agreement and other documents delivered hereunder constitute the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersede all prior agreements and covenants, both written and oral, among the Parties with respect to such subject matter.
SECTION 9.05 Severability
If any term or other provision of this Agreement is invalid, illegal or unenforceable by any Law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated hereunder is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereunder are consummated as originally contemplated to the greatest extent possible.
SECTION 9.06 Waiver
Any Party may (a) extend the time for the performance of any of the obligations or other acts of the other Party, (b) waive the liability of the other Party for any inaccuracies in the representations and warranties contained herein or in any document delivered by the other Party pursuant hereto, or (c) waive the compliance with any of the agreements or the performance of such Party’s obligations contained herein as condition precedent. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Parties to be bound thereby. Any waiver of any term or condition hereof shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of any Party hereto to assert any of its rights hereunder shall not constitute a waiver of any of such rights. All rights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.
SECTION 9.07 Amendment
This Agreement may not be amended or modified except (a) by an instrument in writing signed or sealed by the Parties or their authorized representatives, or (b) by a waiver in accordance with Section 9.06.
SECTION 9.08 No Third Party Beneficiaries
This Agreement shall be binding upon and inure solely to the benefit of the Parties and their respective successors and permitted assigns.
SECTION 9.09 Notices
All notices required or permitted under this Agreement shall be made in writing and deemed to have been effectively delivered:
(a) upon delivery to the Party to which a notice is given hereunder if personally delivered;
(b) upon receipt of facsimile confirmation if sent by facsimile with confirmation of transmission during normal business hours of the recipient or on the second (2 nd ) Working Day if not sent during normal business hours of the recipient;
(c) three (3) days after the delivery to a courier service if delivered by courier; or
(d) upon transmission of an email to the server of the Party to which a notice is given hereunder if sent by email.
All communications shall be sent to the following addresses (or other address as a Party may have specified in a ten (10)-day written notice given to the other Parties).
If to the Transferors:
Power Star
Attention: ZHANG Liyang
Address: 40/F, HKRI Centre One, 288 Shimen First Road, Jing’an District, Shanghai
Telephone:
Email:
Glossy City
Attention: YANG Shuo
Address: Room 3809, 38/F, Bund Finance Centre S1, 600 Zhongshan East Second Road, Huangpu District, Shanghai
Telephone:
Email:
If to the Transferee:
Attention: General Counsel of Legal Department
Address: 5/F, Building 3, 969 Wenyi West Road, Yuhang District, Hangzhou, Zhejiang Province
Telephone:
Email:
All notices or communications sent by the Transferors to the Transferee shall be deemed to have been approved by the Transferee in writing if not replied by the Transferee within two (2) Working Days from the delivery thereof. If any Party is required to change the email box designated by it, it shall give a notice of change to the email boxes designated by the other Parties two (2) Working Days in advance.
SECTION 9.010 Counterparts
This Agreement may be executed and delivered in seven counterparts. Each of the Transferors and the Transferee shall keep one (1) copy, while the remaining copies shall be retained by the Transferors for completion of governmental formalities. Each counterpart shall be an original and have the same effect.
SECTION 9.011 Governing Law and Dispute Resolution
(a) This Agreement shall be governed by, and construed in accordance with, the Laws of the PRC.
(b) Any dispute arising out of the execution of, or in connection with, this Agreement (“ Dispute ”) shall be resolved through friendly consultation among the Parties. The claiming Party shall promptly notify the other Party in a dated notice that a Dispute has arisen and describe the nature of the Dispute. If the Dispute cannot be resolved through consultation within thirty (30) days after the date of such notice of Dispute, any Party may submit the Dispute to the China International Economic and Trade Arbitration Commission (“ CIETAC ”) for arbitration in Beijing in accordance with its arbitration rules then in effect. The arbitration tribunal shall consist of three (3) arbitrators. Each of the claimant and the respondent shall appoint one (1) arbitrator. The third arbitrator shall act as the presiding arbitrator and shall be appointed by the chairman of CIETAC. The arbitral award shall be final and binding upon the Parties.
SECTION 9.012 Language
This Agreement is written in Chinese .
[Signature Pages to Follow]
(Signature Page to the Share Transfer Agreement Regarding the Transfer of 5.28% Shares of Focus Media Information Technology Co., Ltd.)
Power Star Holdings (Hong Kong) Limited
/s/ LI Junhao
Signature by Authorized Representative:
Name: LI Junhao
Signature Page to Share Transfer Agreement
(Signature Page to the Share Transfer Agreement Regarding the Transfer of 5.28% Shares of Focus Media Information Technology Co., Ltd.)
Glossy City (HK) Limited
/s/ PAN Donghui
Signature by Authorized Representative:
Name: PAN Donghui
Signature Page to Share Transfer Agreement
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