TOP INTEREST INTERNATIONAL LIMITED. AND SHENZHEN DINGYI INVESTMENT CONSULTING COMPANY CO., LTD Agreement on Transfer of Shares of SHENZHEN XIN KAI YUAN INFO CONSULT CO.,LTD. SEPTEMBER 22, 2008
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TOP
INTEREST INTERNATIONAL LIMITED.
AND
SHENZHEN
DINGYI INVESTMENT CONSULTING COMPANY CO., LTD
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Agreement
on Transfer of Shares of SHENZHEN XIN KAI YUAN INFO CONSULT
CO.,LTD.
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SEPTEMBER
22, 2008
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Party A:
TOP INTEREST INTERNATIONAL LIMITED.
Registration
Number: 535643
Registration
address: 16th FL,
Xxxxxx Xxxxx, Xxxxxxxxxx Xxxxx, 0 Xxxxxxx Xx, Xxxx Xxxx
(Here in
after the "Transferor")
Party B:
SHENZHEN DINGYI INVESTMENT CONSULTING COMPANY CO., LTD
Registration
Number: 440301103034433
Registered
address: Xxxx X00-0, 00xx XX, An
Lian Tower, 4018 Xxx Xxxx Rd, Shenzhen, China
(Here in after
the "Transferee")
WHEREAS:
1.
SHENZHEN XIN KAI YUAN INFO CONSULT CO., LTD (hereinafter "Xin Kai Yuan") is
an information search platform that is engaged in the business of providing
information search engine, online web application and image designing service.
It is legally established on February 24th, 2004
and validly existing under Chinese laws. Its registered capital is RMB
$1,000,000. The transferor Top Interest International Limited owns 70% of Xin
Kai Yuan’s total equity interest; Lian Haibin owns 20% of Xin Kai Yuan’s total
equity interest; Xxx Xx Ming owns 10% of its total equity interest.
2.
The Transferee is a legal entity legally established and validly existing
under the laws of PRC. It desires to accept all shares of Xin Kai Yuan held by
the Transferor.
In
consideration of the foregoing share transfer, the parties hereby agree as
follows through friendly consultation in accordance with relevant laws
and regulations and in the spirit of mutual benefit, honesty and good
faith:
I. Share
Transfer
1.
The Transferor agrees to transfer all of its shares of Xin Kai Yuan
to the Transferee on the Transfer Effective Date (as defined
hereinafter) provided under Article III of this Agreement according to
terms and conditions of this Agreement. The Transferee agrees to
accept such shares according to terms and conditions of this Agreement
(hereinafter "Share Transfer Agreement").
2.
Unless otherwise provided under this Agreement, the Transferee shall become
the legal owner of the shares contemplated to be transferred under
this Agreement and have all rights and obligations in respect of Share
Transfer (such rights including all rights, interests and duties in respect
of its contribution), and the Transferor shall not have any right,
obligation or responsibility in respect of Share Transfer, as of the
Transfer Effective Date provided under Article III of this
Agreement.
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3.
The parties hereto agree to effect all procedures in respect of
Share Transfer according to the terms and time provided under this
Agreement, including without limitation securing approval documents for
Share Transfer/acceptance according to the laws of their respective
incorporation place.
4.
The Transferor shall transfer to the Transferee any and all materials held
by the Transferor necessary for appropriate exercise of shareholder
rights by the Transferee as of the Share Transfer Effective Date of this
Agreement, including without limitation board resolutions and minutes of
Xin Kai Yuan, all seals of Xin Kai Yuan (including without limitation
corporate seal, finance seal and contract seal), approval documents of Xin
Kai Yuan, approval documents from PRC governmental authorities, business license
(originals and copies), certificates, checkbooks, materials relating to
bank account and changes
Thereto
property title documents and approvals.
II. Share
Transfer Price and Payment
1.
The parties hereto agree that the price of Share Transfer is RMB $1.00
(hereinafter "Share Transfer Price") and the transferee agrees to take all the
obligations and debt of Xin Kai Yuan in respect of the ownership of equity
interest as of the Share Transfer Effective date.
2.
The parties hereto agree that the Transferee shall pay to the Transferor RMB
$1.00 by cash upon the Share Transfer Effective date. If Share Transfer fails
to be effective within 90 days after execution of this Agreement by reasons
other than those on the part of the Transferee after the Transferee
effected the payment
to the Transferor, the Transferor shall refund to the Transferee full amount of
the payment at the earlier of: (1) within five working days after the
Transferor is expressly informed that Share Transfer fails to be effective
as scheduled, or (2) 90 days after execution of
this Agreement.
III.
Effective Date of this Agreement and of Share Transfer
1.
This Agreement shall be effective upon execution by the parties hereto or
their respective authorized representatives and affixture of seals.
2.
Share Transfer contemplated under this Agreement shall be effective
upon realization of all conditions precedent set out below, and the date
of realization shall be Share Transfer Effective Date:
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(1) This
Agreement is legally executed by the parties hereto or
their respective authorized
representatives;
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(2) This
Agreement and the Share Transfer contemplated hereunder are approved
for transfer/acceptance by the respective authorities
of Transferor and Transferee;
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(3) This
Agreement and the Share Transfer contemplated hereunder are approved
by the original approval authority, all the filing and
registration process with the Chinese Administration of Industry and
Commerce have been completed in accordance with the relevant PRC rules and
regulations, and approval documents by are
secured;
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(4) Other
legal documents required for the Share Transfer have been appropriately
secured and relating procedures or formalities have been validly
effected.
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3.
The parties hereto shall, in good faith, complete any activities necessary
for effecting the Share Transfer provided hereunder within 90 days after this
Agreement is effective or any time otherwise agreed upon by both parties,
including without limitation executing or causing third party to execute
any document or application, or securing any relevant approval, consent or
permit to effect performance of this Agreement.
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4.
The Transferor agrees that the Share Transfer shall not be effective until
all conditions precedent set out in Section 2 of this Article are
realized within agreed-upon time, and the Transferee bears no liability
therefore unless the failure of such realization is caused by the error of
the Transferee. If such condition precedent fails to be realized according
to the terms or within the time provided hereunder due to the error of the
Transferor, the Transferor shall be liable to any losses or expenses thus
incurred by the Transferee; if such condition precedent fails to be
realized according to the terms or within the time provided hereunder due to the
error of the Transferee, the Transferee shall be liable to any losses or
expenses thus incurred by the Transferor.
IV.
Representations, Covenants and Warranties of the Transferor
1.
Xin Kai Yuan is a limited liability company legally established and validly
existing under Chinese laws. The Transferor has duly paid up its subscribed
capital in light of capital percentage and secured corresponding share
rights according to laws. The Transferor has performed all of
its obligations as shareholder in strict compliance with articles of
association of Xin Kai Yuan.
2.
The Transferor has all rights, powers and authorities to enter into
and perform all duties and responsibilities under this Agreement. This
Agreement is legally binding upon the Transferor upon
execution.
3.
The Transferor legally and actually owns the shares intended to
be transferred under this Agreement, and is capable in right and action to
transfer such shares, and has secured all necessary approvals
therefore.
4.
Execution or performance of this Agreement by the Transferor does
not breach laws, articles of association, contracts, agreements or any
other legal documents which the Transferor is subject to.
5.
The shares intended for transfer are complete and have not been
pledged subject to any preferential right or any third party interest, or
have any right defect.
6.
The balance sheet of Xin Kai Yuan and other financial materials
and information provided by the Transferor to the Transferee are complete,
true and accurate. Except for the liabilities (including actual liabilities
and contingent liabilities) disclosed by the Transferor to the
Transferee, Xin Kai Yuan has no other liabilities ("Undisclosed
Liabilities"). If any Undisclosed Liabilities exist, the Transferor shall
be liable for its full repayment. If the Transferee or Xin Kai Yuan suffers any
loss due to Undisclosed Liabilities, the Transferor shall be liable to all
damages therefore.
7.
There exists no breach of law, proceedings or potential proceedings
in respect of tax, accounting, employment, insurance and property of Xin
Kai Yuan.
V.
Representations, Covenants and Warranties of the Transferee
1.
The Transferee is the legal person legally established and validly existing
under the laws of PRC.
2.
The Transferee has full rights to conduct the matters in respect
of accepting shares from the Transferor as provided under this Agreement,
and has secured all approvals and/or authorizations in respect of execution
and performance of this Agreement.
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3.
Execution or performance of this Agreement by the Transferee is in
no breach of the laws, articles of association, contracts, agreements or
other legal documents which the Transferee is subject to.
4.
The Transferee shall perform the obligation of paying transfer price to the
Transferor in strict compliance with terms of this Agreement, and
warrant not to withdraw contribution after such payment obligation is
fulfilled and the registration of the company is changed.
VI.
Confidentiality
Unless
expressly required by relevant Chinese laws and regulations, relevant articles
of association, or other applicable laws and regulations, no party shall
disclose the terms of this Agreement to any third party other than the parties
hereto without the prior written consent of the other party before completion of
the transaction.
VII. Fees
and Expenses
1.
The parties hereto agree to bear their respective fees incurred
for engagement of lawyers, accountants, appraisers, financial advisors and
other professionals.
2.
Any taxable liability incurred under the Share Transfer shall be paid by the
Transferor and the Transferee respectively according to PRC laws.
3.
Any other expenses occurred in connection with the Share
Transfer (including without limitation the expenses relating to change
registration at I Chinese Administration of Industry and Commerce bureau) shall
be equally paid by the Transferor and the Transferee.
VIII.
Other Matters relating and Amendment to this Agreement
1.
The parties hereto agree to further negotiate other matters in respect of
this Agreement after execution of this Agreement and enter into
supplemental agreement in writing. Such supplemental agreement constitutes
an integral part of this Agreement.
2.
Any amendment to this Agreement shall be in writing and signed by
both parties. Any amendment or addition shall constitute an integral part
of this Agreement.
IX.
Breach Liability
1.
Any party hereto shall be deemed in breach of this Agreement if
such party:
(1) fails
to perform any obligation under this Agreement;
(2) breaches
any of its representation, covenant or warranty made under this Agreement;
or
(3) its
representation or warranty made under this Agreement is inconsistent with
facts or misleading (in good faith or in
bad faith).
2.
Under occurrence of such breach, the non-breaching party has the right to
require the breaching party to correct within 10 days; if the breaching
party fails to correct within the specified time, the non-breaching
party has the right to terminate this Agreement and claim damages from the
breaching party.
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3.
The parties hereto covenants to each other that without prejudice to
the right to claim damages by the non-breaching party against the breach
of covenant, warranty or obligation by the breaching party under this
Agreement, the breaching party shall be liable to the following damages as
required by the non-breaching party:
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(1) A certain sum of damages which is sufficient to restore
both parties to the status as if the Agreement is not
breached;
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(2) Expenses
or costs directly or indirectly incurred by the non-breaching party
arising out of the breach of the Agreements (including without limitation
litigation, arbitration and/or lawyer fees reasonably incurred by the
non-breaching party).
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X.
Dispute Resolution
1.
Any dispute arising out of or relating to this Agreement shall be settled
by the parties hereto through friendly consultation.
2.
If any dispute is not settled through friendly consultation by the parties
hereto within thirty days after its occurrence, such dispute shall
be submitted to the Chinese Court for arbitration according to its rules
then in effect. The award of arbitration is final and binding upon both
parties. The seat of the arbitration is in Shenzhen, China.
3.
If any provision of this Agreement shall be determined to be
invalid according to relevant laws, the remaining of this Agreement shall
continue to be valid and enforceable.
XI.
Applicable Laws
The
execution, validity, interpretation and performance of this Agreement, and
dispute resolution thereof shall be governed by relevant laws of
China.
XII.
Agreement Right
No
party shall assign its rights under this Agreement without prior
written consent of the other party. Respective successors and permitted
assigns of the parties hereto are subject to provisions of this
Agreement.
XIII.
Entire Agreement
This
Agreement constitutes all representations and agreements between the parties
hereto and supersedes all prior oral and written representations, warranties,
understandings and agreements between the parties relating to the subject matter
of this Agreement. The parties hereto agree and acknowledge that any
representation or covenant that is not provided under this Agreement shall not
constitute basis of this Agreement and, therefore, shall not be the basis to
determine respective rights and obligations of the parties or to interpret terms
and conditions of this Agreement.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first written above.
By: /s/
Party A:
TOP INTEREST INTERNATIONAL LIMITED.
Legal
Representative/Authorized Representative:
Date:
September 22, 2008
By: /s/
Party B:
SHENZHEN DINGYI INVESTMENT CONSULTING COMPANY CO., LTD
Authorized
Representative:
Date:
September 22, 2008
