STOCK PURCHASE AGREEMENT BY AND BETWEEN RICHARD LI AND SHANGHAI CENTURY ACQUISITION CORPORATION Dated: February 20, 2007
BY
AND
BETWEEN
▇▇▇▇▇▇▇
▇▇
AND
Dated:
February 20, 2007
STOCK
PURCHASE AGREEMENT, dated as of February 20, 2008, by and between ▇▇▇▇▇▇▇ ▇▇
(the “Seller”)
and
.Shanghai Century Acquisition Corporation, a company formed under the laws
of
the Cayman Islands (the “Buyer”).
WITNESSETH:
WHEREAS,
the Seller owns one hundred (100%) percent of the issued and outstanding shares
(the “Shares”) of common stock, HK$1.00 par value per share (the “Common
Stock”), of Asia Leader Investments Limited, a company formed under the laws of
the Special Administrative Region of Hong Kong (the “Company”); and
WHEREAS,
the Company has entered into a joint venture agreement dated as of the date
hereof (the “Joint Venture Agreement”) with RAD International Investment Fund
Ltd., a company formed under the laws of the Bahamas (“RAD”), providing for the
establishment of New Goal International Limited, a company formed under the
laws
of the Hong Kong Special Administrative Region, to engage in certain financing
leasing arrangements and other leasing services (the “Joint Venture”);
and
WHEREAS,
the Seller wishes to sell to the Buyer, and the Buyer wishes to purchase from
the Seller, the Shares, upon the terms and subject to the conditions set forth
herein;
NOW,
THEREFORE, in consideration of the premises and the mutual agreements and
covenants hereinafter set forth, the Buyer and the Seller hereby agree as
follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01 Certain
Defined Terms. As used in this Agreement, the following terms shall have the
following meanings:
“Action”
means any claim, action, suit, arbitration, inquiry, proceeding or investigation
by or before any Governmental Authority.
“Affiliate”
means, with respect to any specified Person, any other Person that directly,
or
indirectly through one or more intermediaries, controls, is controlled by,
or is
under common control with, such specified Person.
“Buyer”
has the meaning specified in the recitals to this Agreement.
“Closing”
has the meaning specified in Section 2.03.
“Closing
Date” has the meaning specified in Section 2.03.
1
“Common
Stock” has the meaning specified in the recitals to this Agreement.
“Company”
has the meaning specified in the recitals to this Agreement.
“Control”
(including the terms “controlled by” and “under common control with”), with
respect to the relationship between or among two or more Persons, means the
possession, directly or indirectly or as trustee or executor, of the power
to
direct or cause the direction of the affairs or management of a Person, whether
through the ownership of voting securities, as trustee or executor, by contract
or otherwise, including, without limitation, the ownership, directly or
indirectly, of securities having the power to elect a majority of the board
of
directors or similar body governing the affairs of such Person.
“Encumbrance”
means any security interest, pledge, mortgage, lien (including, without
limitation, environmental and tax liens), charge, encumbrance, adverse claim,
preferential arrangement or restriction of any kind, including, without
limitation, any restriction on the use, voting, transfer, receipt of income
or
other exercise of any attributes of ownership.
“Governmental
Authority” means any central, provincial, or local (in the Peoples’ Republic of
China, including, for these purposes, the Special Administrative Region of
Hong
Kong) or any foreign government, governmental, regulatory or administrative
authority, agency or commission or any court, tribunal, or judicial or arbitral
body.
“Governmental
Order” means any order, writ, judgment, injunction, decree, stipulation,
determination or award entered by or with any Governmental
Authority.
“Joint
Venture” has the meaning specified in the recitals to this
Agreement.
“Joint
Venture Agreement” has the meaning specified in the recitals to this
Agreement.
“Law”
means any central, provincial, local or foreign statute, law, ordinance,
regulation, rule, code, order, other requirement or rule of law.
“Liabilities”
means any and all debts, liabilities and obligations, whether accrued or fixed,
absolute or contingent, matured or un-matured or determined or determinable,
including, without limitation, those arising under any Law, Action or
Governmental Order and those arising under any contract, agreement, arrangement,
commitment or undertaking.
“Loss”
has the meaning specified in Section 7.01.
2
“Material
Adverse Effect” means any circumstance, change in, or effect on the business of
the Company that, individually or in the aggregate with any other circumstances,
changes in, or effects on, the business of the Company and : (a) is, or could
be, materially adverse to the business, operations, assets or Liabilities,
employee relationships, customer or supplier relationships, prospects, results
of operations or the condition (financial or otherwise) of the Company or (b)
could adversely affect the ability of the Buyer or the Company to operate or
conduct any lawful business. With respect to Section 3.03 only, “Material
Adverse Effect” means any circumstance, change in, or effect on the business of
the Seller that, individually or in the aggregate, could adversely affect the
ability of the Seller to authorize, execute or perform under this Agreement.
With respect to Section 4.02 only, “Material Adverse Effect” means any
circumstance, change in, or effect on the business of the Buyer that,
individually or in the aggregate, could adversely affect the ability of the
Buyer to authorize, execute or perform under this Agreement.
“Person”
means any individual, partnership, firm, corporation, association, trust,
unincorporated organization or other entity, as well as any syndicate or group
that would be deemed to be a person under Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended.
“Purchase
Price” has the meaning specified in Section 2.02.
“RAD”
has
the meaning set forth in the recitals to this Agreement.
“Seller”
has the meaning specified in the recitals to this Agreement.
“Shares”
has the meaning specified in the recitals to this Agreement.
“Stockholder
Approval” means the approval of a majority of the shareholders present in person
or by proxy at an extraordinary meeting of the members of the Buyer of the
acquisition of the Shares as contemplated herein.
“Tax”
or
“Taxes” means any and all taxes, fees, levies, duties, tariffs, imposts, and
other charges of any kind (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect thereto) imposed
by
any government or taxing authority, including, without limitation: taxes or
other charges on or with respect to income, franchises, windfall or other
profits, gross receipts, property, sales, use, capital stock, payroll,
employment, social security, workers' compensation, unemployment compensation,
or net worth; taxes or other charges in the nature of excise, withholding,
ad
valorem, stamp, transfer, value added, or gains taxes; license, registration
and
documentation fees; and customs duties, tariffs, and similar
charges.
3
ARTICLE
II
PURCHASE
AND SALE
SECTION
2.01 Purchase
and Sale of the Shares.
Upon
the terms and subject to the conditions of this Agreement, at the Closing,
the
Seller shall sell to the Buyer, and the Buyer shall purchase from the Seller,
free and clear of any Encumbrance the, Shares constituting one hundred (100%)
percent of the Company’s outstanding capital stock.
SECTION
2.02 Purchase
Price.
The
total purchase price for the Shares shall be (i) cash in the amount of
US$300,000
in immediately available funds and (ii) the assumption by the Buyer of all
of
the Company’s obligations and responsibilities under the Joint Venture
Agreement, including without limitation the Company’s obligation to make a cash
capital contribution in an amount up to US$70,000,000 to the Joint Venture
subject to the terms and conditions of the Joint Venture Agreement (the
“Purchase Price”).
SECTION
2.03 Closing.
Upon the
terms and subject to the conditions of this Agreement, the sale and purchase
of
the Shares contemplated by this Agreement shall take place at a closing (the
“Closing”) to be held at the offices of the Buyer at 23rd
Floor,
Shun Ho Tower, ▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ at 10:00 A.M. Hong
Kong
time on the business day on which the last of the conditions to the obligations
of the parties set forth in Article VI to be fulfilled on or prior to the
Closing is satisfied or waived by the relevant party, or at such other place
or
at such other time or on such other date as the Seller and the Buyer may agree
upon in writing (the day on which the Closing takes place being the “Closing
Date”).
The
parties shall ensure that the Closing Date shall be the same date as the
Contribution Date set forth in Section 3.4 of the Joint Venture
Agreement.
SECTION
2.04 Closing
Deliveries by the Seller.
At the
Closing, the Seller shall deliver or cause to be delivered to the
Buyer:
(a) stock
certificates evidencing the Shares, duly endorsed in blank, or accompanied
by
stock powers duly executed in blank, in form satisfactory to the Buyer and
with
all required stock transfer tax stamps affixed;
(b) a
receipt
for the Purchase Price; and
(c) the
opinions, certificates and other documents required to be delivered pursuant
to
Section 6.02.
SECTION
2.05 Closing
Deliveries by the Buyer.
At the
Closing, the Buyer shall deliver to the Seller:
(a) the
Purchase Price of which US$300,000 shall be wired transferred to the bank and
account designated by the Seller at least three (3) business days before the
Closing Date;
(b) a
joinder
agreement to the Joint Venture Agreement assuming all obligations of the Company
thereunder; and
(c) the
opinions, certificates and other documents required to be
delivered pursuant to Section 6.01 and certified copies of the legal opinions
set forth in Section 3.4.1(f) of the Joint Venture Agreement.
4
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
OF
THE SELLER
As
an
inducement to the Buyer to enter into this Agreement, the Seller hereby
represents and warrants to the Buyer as follows:
SECTION
3.01 Title
to the Shares, etc.
The
Seller has good and marketable title to the Shares, free and clear of any
Encumbrance. The Shares have been legally and validly issued are fully paid
and
nonassessable. Except pursuant to this Agreement, the Seller has no agreement,
arrangement, or understanding with respect to the Shares or the Seller’s
ownership thereof.
SECTION
3.02 Ownership
of Joint Venture.
The
Company owns, free and clear of any Encumbrance, sixty-seven (67%) percent
of
all of the Joint Venture’s issued and outstanding shares and the Joint Venture’s
ownership interests and, directly or indirectly, such Joint Venture’s tangible
and intangible assets, brand names, trademarks, distribution networks, patents,
technology, receivables, inventory and/or contracts.
SECTION
3.03 No
Seller Conflict.
The
execution, delivery and performance of this Agreement by the Seller do not
and
will not (a) conflict with or violate (or cause an event which could have a
Material Adverse Effect as a result of) any Law or Governmental Order applicable
to the Seller or any of his assets, properties, or business, or require any
consent, approval, authorization or other order of, action by, filing with
or
notification to any Governmental Authority, or (b) conflict with, result in
any
breach of, constitute a default (or event which with the giving of notice or
lapse of time, or both, would become a default) under, require any consent
under, or give to others any right of termination, amendment, acceleration,
suspension, revocation or cancellation of, or result in the creation of any
Encumbrance on any of the Shares or on any of the assets or properties of the
Seller.
SECTION
3.04 Organization,
Authority and Qualification of the Company.
The
Company is a company duly organized, validly existing and in good standing
under
the laws of the Special Administrative Region of Hong Kong and has all necessary
power and authority to: (a) enter into contracts and agreements into which
it
has entered, including without limitation the Joint Venture Agreement, and
the
agreements contemplated in the Joint Venture Agreement to which the Company
is a
party; and (b) own, operate or lease the properties and assets now owned,
operated, or leased by it. All corporate actions necessary for the Company
to
execute, deliver and implement this Agreement and the Joint Venture Agreement
have been duly taken by the Company, and the Company has not taken any action
that in any respect conflicts with, constitutes a default under, or results
in a
violation of any provision of its organizational documents, this Agreement
or
the Joint Venture Agreement.
5
SECTION
3.05 Capital
Stock of the Company; Ownership of the Shares.
(a) The
authorized capital stock of the Company consists of 10,000 shares of Common
Stock. As of the date hereof, one (1) share of Common Stock is issued and
outstanding, which is validly issued, fully paid and nonassessable, and the
issuance of such share does not violate any preemptive rights. There are no
options, warrants, convertible securities or other rights, agreements,
arrangements, or commitments of any character relating to unissued capital
stock
of the Company or obligating any Seller or the Company to issue or sell any
shares of capital stock of, or any other interest in, the Company. There are
no
outstanding contractual obligations of the Company to repurchase, redeem or
otherwise acquire any shares of Common Stock or to provide funds to, or make
any
investment (in the form of a loan, capital contribution or otherwise) in, any
other Person. The Company has not taken any action in respect of any merger,
consolidation, sale of all or substantially all of its assets, reorganization,
recapitalization, dissolution, or liquidation, except as contemplated by this
Agreement. The Shares constitute one hundred (100%) percent of the issued and
outstanding capital stock of the Company, and, upon consummation of the
transactions contemplated by this Agreement and registration of the Shares
in
the name of the Buyer in the stock records of the Company, the Buyer, assuming
it shall have purchased the Shares for value in good faith and without notice
of
any adverse claim, will own one hundred (100%) percent of the issued and
outstanding capital stock of the Company. Upon consummation of the transactions
contemplated by this Agreement, the Shares will be fully paid and nonassessable.
(b) The
stock
register of the Company accurately records: (i) the name and address of each
Person owning shares of capital stock of the Company and (ii) the certificate
number of each certificate evidencing shares of capital stock issued by the
Company, the number of shares evidenced by each such certificate, the date
of
issuance thereof and, in the case of cancellation, the date of
cancellation.
SECTION
3.06 Corporate
Books and Records.
The
minute books of the Company contain accurate records of all meetings and
accurately reflect all other actions taken by the stockholders, Board of
Directors and all committees of the Board of Directors of the Company. Complete
and accurate copies of all such minute books and of the stock register of the
Company have been provided by the Company to the Buyer.
SECTION
3.07 Full
Disclosure.
The
Seller is not aware of nor does it have any constructive knowledge of any facts
pertaining to the Company that affect adversely the Company or which are likely
in the future to affect the Company adversely, except as disclosed in this
Agreement or otherwise known to the Buyer. No representation or warranty of
the
Seller in this Agreement or any statement or certificate furnished or to be
furnished to the Buyer pursuant to this Agreement, or in connection with the
transactions contemplated by this Agreement, contains any untrue statement
of a
material fact, or omits to state a material fact necessary to make the
statements contained herein or therein not misleading in light of the
circumstances under such statements are made or omitted.
6
SECTION
3.08 Limitation
to the Company.
The
representations and warranties by the Seller from Section 3.01 to Section 3.07
shall not be interpreted to include any representation and warranty in respect
of the transactions contemplated in the Joint Venture Agreement. The Seller
shall not rely on the foregoing representations and warranties to make its
investment into the Joint Venture.
SECTION
3.09 Brokers.
No
broker, finder or investment banker is entitled to any brokerage, finder's
or
other fee or commission in connection with the transactions contemplated by
this
Agreement based upon arrangements made by or on behalf of the
Seller.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
OF
THE BUYER
As
an
inducement to the Seller to enter into this Agreement, the Buyer hereby
represents and warrants to the Seller as of the date hereof and as of the
Closing Date as follows:
SECTION
4.01 Organization
and Authority of the Buyer.
The
Buyer is a company duly organized, validly existing, and in good standing under
the laws of the Cayman Islands and has all necessary corporate power and
authority to execute, deliver, and perform this Agreement. The execution,
delivery, and performance of this Agreement has been duly authorized by all
requisite action on the part of the Buyer. This Agreement shall have been duly
executed and delivered by the Buyer, and (assuming due authorization, execution,
and delivery by each other party thereto) constitutes a legal, valid, and
binding obligation of the Buyer enforceable against the Buyer in accordance
with
its terms.
SECTION
4.02 No
Conflict.
The
execution, delivery and performance of this Agreement by the Buyer do not and
will not (a) violate, conflict with or result in the breach of any provision
of
the charter, bylaws, or similar organizational documents of the Buyer, (b)
conflict with or violate any Law or Governmental Order applicable to the Buyer
or require any consent, approval, authorization, or other order of, action
by,
filing with, or notification to any Governmental Authority, or (c) conflict
with, or result in any breach of, constitute a default (or event which with
the
giving of notice or lapse or time, or both, would become a default) under,
require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation, or cancellation of, or result
in the creation of any Encumbrance on any of the assets or properties of the
Buyer that would have a Material Adverse Effect on the ability of the Buyer
to
consummate the transactions contemplated by this Agreement, assuming in the
case
of the foregoing clauses (a) and (c) that the receipt of the Stockholder
Approval shall have been obtained prior to the consummation of the purchase
of
the Shares.
7
SECTION
4.03 Investment
Purpose.
The
Buyer is acquiring the Shares solely for the purpose of investment and not
with
a view to, or for offer or sale in connection with, any distribution
thereof.
SECTION
4.04 Brokers.
No
broker, finder or investment banker is entitled to any brokerage, finder's
or
other fee or commission in connection with the transactions contemplated by
this
Agreement based upon arrangements made by or on behalf of the
Buyer.
SECTION
4.05 Due
Diligence.
The
Buyer
has done its own due diligence of the Company and the Joint Venture including
without limitation review and full understanding of the terms and conditions
of
the Joint Venture Agreement and the transactions contemplated therein, which
Joint Venture Agreement is to be entered into by the parties thereto
simultaneously with the signature of this Agreement.
ARTICLE
V
ADDITIONAL
AGREEMENTS
SECTION
5.01 Conduct
of Business Prior to the Closing.
The
Seller covenants and agrees, that, between the date hereof and the time of
the
Closing, the Company shall not conduct any business, except to consummate the
transactions contemplated by this Agreement and the Joint Venture Agreement
or
as required to comply with applicable law, rule or regulation. Without
limitation, since January 1, 2008:
(a) except
to
consummate the transactions contemplated by the Agreement and the Joint Venture
Agreement, the Company has not incurred and shall not incur any liability or
commitment or any contingent liability or commitment (whether due before or
after the Closing) or become party to any agreement; and
(b) except
for the Shares, the Company has not issued and shall not issue prior to the
Closing or the termination of this Agreement any capital stock.
8
SECTION
5.02 Exclusivity;
Confidentiality; Cooperation.
Until
the Closing or termination of this Agreement:
(a) The
Seller shall not suffer or permit his employees, representatives, agents,
investment bankers, advisors, accountants, attorneys or Affiliates to initiate
or solicit, directly or indirectly, any inquiries or the making of any offer
or
proposal that constitutes or would be reasonably expected to lead to a proposal
or for a stock purchase, asset acquisition, merger, consolidation or other
business combination involving the Company or the Joint Venture, any proposal
to
acquire in any manner a direct or indirect substantial equity interest in,
or
all or any substantial part of the assets of, the Company or the Joint Venture
(an “Alternative Proposal”) from any person and/or entity, or engage in
negotiations
or discussions relating thereto or accept any Alternative Proposal, or make
or
authorize any statement, recommendation or solicitation in support of any
Alternative Proposal. Seller shall notify the Buyer orally and in writing of
the
receipt of any such inquiries, offers or proposals (including the terms and
conditions of any such offer or proposal, the identity of the person and/or
entity making it and a copy of any written Alternative Proposal), as promptly
as
practicable and in any event within 48 hours after the receipt thereof, and
shall keep the Buyer informed of the status and details of any such inquiry,
offer or proposal. Seller shall immediately terminate any existing solicitation,
activity, discussion or negotiation with any person and/or entity hereafter
conducted by them or by any officer, employee, director, stockholder or other
representative thereof with respect to the foregoing.
(b) except
in
connection with the public filings of the Buyer in accordance with the
securities laws and regulations of the United States or in the press releases
and public announcements to be made by the Buyer or in connection with any
dispute between the parties and subject to any obligation to comply with (i)
any
applicable law, (ii) any rule or regulation of any Governmental Entity or
securities exchange, or (iii) any subpoena or other legal process to make
information available to the persons entitled thereto, whether or not the
transactions contemplated herein shall be concluded, all information obtained
by
any party about any other, and all of the terms and conditions of this
Agreement, shall be kept in confidence by each party, and each party shall
cause
its stockholders, directors, officers, managers, employees, agents and attorneys
to hold such information confidential. Such confidentiality shall be maintained
to the same degree
as
such party maintains its own confidential information and shall be maintained
until such time, if any, as any such data or information either is, or becomes,
published or a matter of public knowledge; provided, however, that the foregoing
shall not apply to any information obtained by a party through its own
independent investigations of the other party or received by a party from a
source not known by such party to be bound by a confidentiality agreement with,
or other contractual, legal or fiduciary obligation of confidentiality to,
the
other party, nor to any information obtained by a party which is generally
known
to others engaged in the trade or business of such party. In the event a party
to this Agreement becomes legally compelled to disclose any such information,
it
shall promptly provide the others with written notice of such requirement so
that the other parties to this Agreement may seek a protective order or other
remedy. If this Agreement shall be terminated for any reason, the parties shall
return or cause to be returned to the others all written data, information,
files, records and copies of documents, worksheets and other materials obtained
by such parties in connection with this Agreement.
9
(c) Each
of
the parties shall use reasonable efforts to cause the satisfaction of the
conditions to the obligation of the other parties to consummate the transactions
contemplated by this Agreement and otherwise to cause the Closing to occur,
including in making all required filings with or obtaining any approval from
all
required Government Authorities and notices to or obtaining required consents
of
other third parties. In this regard, Seller will cooperate and cause the Company
and its professionals to cooperate with Buyer to facilitate Buyer’s legal,
financial, and operational due diligence of the Company and the Joint
Venture.
SECTION
5.03 Public
Disclosure.
Until
the Closing or termination of this Agreement, only the Buyer shall be permitted
to make any press release or otherwise making any public statement or making
any
other public (or non-confidential) disclosure (whether or not in response to
an
inquiry) regarding the terms of this Agreement and the transactions contemplated
hereby, except the Buyer shall use its commercially reasonable efforts to advise
the Seller before issuing such press release or making such public statement
or
disclosure.
ARTICLE
VI
CONDITIONS
TO CLOSING
SECTION
6.01 Conditions
to Obligations of the Seller.
The
obligations of the Seller to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment or waiver by the Seller, at or
prior to the Closing, of each of the following conditions:
(a) Representations,
Warranties and Covenants.
The
representations and warranties of the Buyer contained in this Agreement shall
have been true and correct when made and shall be true and correct in all
material respects as of the Closing, with the same force and effect as if made
as of the Closing Date; the Buyer shall have performed all obligations under
this Agreement required to be performed by it as of the Closing; and the Seller
shall have received a certificate from the Buyer to such effect signed by a
duly
authorized officer thereof;
(b) No
Proceeding or Litigation.
No
Action shall have been commenced by or before any Governmental Authority against
any Seller, the Company, or the Buyer, seeking to restrain or materially and
adversely alter the transactions contemplated by this Agreement that, in the
reasonable, good faith determination of the Seller, is likely to render it
impossible or unlawful to consummate such transactions.
10
(c)Resolutions.
The
Seller shall have received a true and complete copy, certified by a director
of
the Buyer, of the resolutions duly and validly adopted by the Board of Directors
of the Buyer evidencing its authorization of the execution, delivery, and
performance of this Agreement.
(d) Purchase
Price.
The
Seller shall have received the US$300,000 from the Buyer and a certificate
signed by a duly authorized director of the Buyer that the Buyer assumes of
the
Company’s obligations and responsibilities under the Joint Venture
Agreement.
(e) Board
of Directors of the Buyer.
▇▇▇▇▇
▇▇ and the Buyer shall have agreed on the initial directors of the Board of
the
Buyer.
SECTION
6.02 Conditions
to Obligations of the Buyer.
The
obligations of the Buyer to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment or the waiver by the Buyer, at
or
prior to the Closing, of each of the following conditions:
(a) Representations,
Warranties, and Covenants.
The
representations and warranties of the Seller contained in this Agreement shall
have been true and correct when made and shall be true and correct as of the
Closing with the same force and effect as if made as of the Closing; the Seller
and the Company shall have performed all obligations under this Agreement
required to be performed by it as of the Closing and the Company shall have
performed all obligations under the Joint Venture Agreement as of the
Closing.
(b) No
Proceeding or Litigation.
No
Action shall have been commenced or threatened by or before any Governmental
Authority against the Seller or the Company seeking to restrain or materially
and adversely alter the transactions contemplated hereby or the transactions
contemplated in the Joint Venture Agreement which the Buyer believes, in its
reasonable, good faith determination, is likely to render it impossible or
unlawful to consummate the transactions contemplated by this Agreement or that
could have a Material Adverse Effect.
(c) Consents
and Approvals.
The
Buyer, the Company, and the Seller shall have received or made, each in form
and
substance satisfactory to the Buyer in its reasonable, good faith determination
all required filings and approvals from all Government Authorities and notices
to or required consents of any other third parties (including the Stockholder
Approval) that the Buyer shall deem appropriate for the consummation of the
transactions contemplated by this Agreement.
(d) Resignations.
The
Buyer shall have received the resignations, effective as of the Closing, of
all
the directors and officers of the Company, except for such persons as Buyer
shall have designated, and such persons as Buyer shall have designated shall
have been elected as directors and officers of the Company, to be effective
as
of the Closing.
11
(e) Organizational
Documents.
The
Buyer shall have received a copy of the Memorandum and Articles of Association,
as amended (or similar organizational documents), of the Company and accompanied
by a certificate of the Secretary or Assistant Secretary of such entity, dated
as of the Closing Date, stating that no amendments have been made to such
Memorandum and Articles of Association (or similar organizational documents)
since such date.
(f) Minute
Books.
The
Buyer shall have received a copy of the minute books and stock register of
the
Company, certified by a Secretary or Assistant Secretary of the Company as
of
the Closing Date;
(g) Good
Standing; Qualification to Do Business.
The
Company shall use its reasonable best efforts to obtain good standing
certificates for the Company from the responsible official of the jurisdiction
in which such entity is incorporated or organized and from the responsible
official in each other jurisdiction in which the properties owned or leased
by
the Company, or the operation of its business in such jurisdiction, requires
the
Company to qualify to do business as a foreign corporation as applicable, in
each case dated not more than thirty (30) days before the Closing
Date.
(h) No
Material Adverse Effect.
No
event or events shall have occurred, or be reasonably likely to occur, which,
individually or in the aggregate, have, or could have, a Material Adverse
Effect.
(i) Employment
Agreements.
The
Buyer shall have received the duly executed original of the employment agreement
between ▇▇▇▇▇ ▇▇ and Shanghai Century Acquisition Corporation substantially
in
the form of Exhibit A and an executed employment agreement between ▇▇▇▇▇▇▇
▇▇▇▇
and Shanghai Century Acquisition Corporation.
(j) Option
to Purchase. The
Buyer
shall have received the duly executed original of the Company’s notice to RAD
dated on or before the Closing Date to exercise its option to purchase all
of
RAD’s shares of the Joint Venture.
(k) Resolutions.
The
Buyer shall have received a true and complete copy, certified by a director
of
the Seller, of the resolutions duly and validly adopted by the Board of
Directors of the Seller evidencing its authorization of the execution, delivery,
and performance of this Agreement.
(l) Opinion.
The
Buyer shall have received from Hong Kong counsel to the Seller a legal opinion
addressed to the Buyer with respect to Hong Kong legal matters in form and
substance reasonably satisfactory to the Buyer and its counsel dated the Closing
Date.
12
ARTICLE
VII
INDEMNIFICATION
SECTION
7.01 Indemnification. The
Seller will indemnify and hold the Buyer and its directors, officers, employees
and consultants harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments,
amounts paid in settlements, court costs and reasonable attorneys’ fees and
costs of investigation that any such party may suffer or incur as a result
of or
relating to any breach of any of the representations, warranties, covenants
or
agreements made by him in this Agreement. Notwithstanding the foregoing, the
maximum and sole liability of the Seller under this Section 7.02 and this
Agreement shall be a full refund to the Buyer of the Purchase Price of
US$300,000.
ARTICLE
VIII
TERMINATION
AND WAIVER
SECTION
8.01 Termination.
Without
limiting any other remedy available to any party, this Agreement may be
terminated at any time prior to the Closing:
(a) by
the
Buyer, if there shall be or have been any breach of any representation,
warranty, or covenant made in this Agreement by the Seller or any condition
in
Section 6.02 shall not have been satisfied as of the Closing;
(b) by
the
Seller if there shall be or have been any breach of any representation,
warranty, or covenant made in this Agreement by the Buyer or any condition
in
Section 6.01 shall not have been satisfied as of the Closing;
(c) by
either
party not at fault, if the Closing shall not have occurred by April 28,
2008.
SECTION
8.02 Effect
of Termination.
If this
Agreement is terminated, no party will have any liability or further obligation
to any other party to the Agreement, except for any liability arising out of
any
knowing, willful or fraudulent breach of this Agreement prior to such
termination.
ARTICLE
IX
GENERAL
PROVISIONS
SECTION
9.01 Expenses.
Except
as otherwise specified in this Agreement, all costs and expenses, including,
without limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the Buyer, whether or not the Closing
shall
have occurred. In addition, in the event the Seller is obligated under terms
and
conditions of the Joint Venture Agreement to pay a non-performance fee to RAD
pursuant to Section 10.6 of the Joint Venture Agreement due to the failure
of
the cash capital contribution of the Company set forth in Section 3.1.1 to
be
made prior to April 30, 2008 and regardless of whether the Closing shall have
place in respect of this Agreement or this Agreement shall have been terminated
pursuant to Section 8.01, then Buyer shall be directly responsible for the
payment of such non-performance fee to RAD.
Buyer’s
obligation in the preceding sentence relating to the fee payable to RAD is
subject to the factual basis for the payment having become due being unrelated
to the failure of Seller to observe his obligations hereunder or the Company
under the Joint Venture Agreement. This Section 9.01 shall survive termination
of this Agreement.
13
SECTION
9.02 Notices.
All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by courier service, by cable,
by telecopy, by telegram, by telex or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 9.02) :
(a) if
to the
Seller:
▇▇▇▇▇▇▇
▇▇
Shunyi
Qu, Tianzhu, Liyuan Street
Rits
Garden 2012, Beijing 101312
Fax:
(▇▇▇) ▇▇▇▇ ▇▇▇▇
(b) if
to the
Buyer:
23rd
Floor,
Shun Ho Tower
▇▇-▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Fax:
(▇▇▇) ▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇, Co-Chief Executive Officer
SECTION
9.03 Public
Announcements.
Subject
to Section 5.03, no party to this Agreement shall make, or cause to be made,
any
press release or public announcement in respect of this Agreement or the
transactions contemplated hereby or otherwise communicate with any news media
without the prior written consent of the other party.
SECTION
9.04 Headings.
The
descriptive headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or interpretation
of
this Agreement.
SECTION
9.05 Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any Law or public policy, all other terms and provisions
of
this Agreement shall nevertheless remain in full force and effect so long as
the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto 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
hereby are consummated as originally contemplated to the greatest extent
possible.
14
SECTION
9.06 Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties hereto with respect
to
the subject matter hereof and thereof and supersede all prior agreements and
undertakings, both written and oral, between the Seller and the Buyer with
respect to the subject matter hereof and thereof.
SECTION
9.07 Assignment.
This
Agreement may not be assigned by operation of law or otherwise without the
express written consent of the Seller and the Buyer (which consent may be
granted or withheld in the sole discretion of the Seller or the Buyer);
provided, however, that the Buyer may assign this Agreement to an Affiliate
of
the Buyer without the consent of the Seller provided that any such assignee
shall become a party to this Agreement and make the representations of the
Buyer
contained herein on or prior to the effective date of such
assignment.
SECTION
9.08 No
Third Party Beneficiaries.
This
Agreement shall be binding upon and inure solely to the benefit of the parties
hereto and their permitted assigns and nothing herein, express or implied,
is
intended to or shall confer upon any other Person any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION
9.09 Amendment.
This
Agreement may not be amended or modified except by an instrument in writing
signed by, or on behalf of the parties hereto.
SECTION
9.10 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York without giving effect to any principles of conflicts
of
laws that would result in the application of the law of any other
jurisdiction.
SECTION
9.11 Dispute
Resolution.
Any
dispute arising out of or in connection with this Agreement shall be finally
settled by arbitration under the Rules of the Hong Kong International
Arbitration Centre (the “Arbitration Centre”) by three (3) arbitrators appointed
as follows: one (1) arbitrator shall be appointed by the Seller, one (1)
arbitrator shall be appointed by the Buyer and the third arbitrator shall be
appointed jointly by the two arbitrators appointed by the Seller and the Buyer.
If such two arbitrators fail to appoint the third arbitrator within thirty
(30)
days, then such third arbitrator shall be appointed by the chairman of the
Arbitration Centre. The place of arbitration shall be in Hong Kong. The
arbitration shall be conducted in English. The arbitration awards shall be
final
and binding upon the parties. The costs of the arbitration proceeding and any
proceeding in court to confirm or to vacate any arbitration award, as applicable
(including each party’s attorneys’ fees and costs), shall be borne by the
unsuccessful party or, at the discretion of the arbitrators, may be prorated
between the parties in such proportion as the arbitrators determine to be
equitable and shall be awarded as part of the arbitrators’ award.
15
SECTION
9.12 Counterparts.
This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall
be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
SECTION
9.13 Specific
Performance.
The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or equity.
16
IN
WITNESS WHEREOF, the Seller and the Buyer have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
| /s/ ▇▇▇▇▇▇▇ ▇▇ | ||
|
▇▇▇▇▇▇▇
▇▇
|
||
| SHANGHAI CENTURY ACQUISITION CORPORATION | ||
| |
|
|
| By |
/s/
▇▇▇▇▇▇▇▇ ▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇▇ ▇▇▇ | |
| Title: |
Co-Chief
Executive Officer
|
|
17
EXHIBIT
A
FORM
OF EMPLOYMENT AGREEMENT BETWEEN ▇▇▇▇▇ ▇▇
AND
SHANGHAI CENTURY ACQUISITION CORPORATION
18