EXCLUSIVE EQUITY INTEREST PURCHASE AGREEMENT
This
Exclusive Equity Interest Purchase Agreement (the
“Agreement”)
is
entered into by and among the following parties effective as of November 14,
2007.
Party
A:
|
Sino-Global
Shipping America, Ltd., a
limited liability company duly established and validly existing under
the
laws of the Commonwealth of Virginia, with its registered address
at 00-00
Xxxx Xxxxxx, Xxxxx 0X-0, Xxxxxxxx, Xxx Xxxx, 00000,
XXX.
|
Party B-1: |
CAO
Lei, a
citizen of the People’s Republic of China (the “PRC”).
|
ID
No. 000000000000000000
Address:
Room 0-X-000, Xxxxxxxxxxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx.
Party B-2: |
XXXXX
Xxxxxxx,
a citizen of the PRC.
|
ID
No. 120106195311010016
Address:
Room
21-304,707 Suo, the Third Avenue, Dingzigu, Hongqiao District,
Tianjin.
Party C: |
Sino-Global
Shipping Agency Ltd.,
a limited liability company duly established and valid existing under
the
PRC laws, with its registered address at Xxxxxxxx 0 Xx.0000,
Xxxxxxxxxxxxx, Xxxxxxxx Xxxxxxxx,
Xxxxxxx.
|
WHEREAS,
Party B-1 and Party B-2 collectively hold a 100% equity interest in Party C
(collectively, the “Equity
Interest”);
WHEREAS,
Party C and Trans
Pacific Shipping Ltd., a
foreign invested company wholly-owned by Party A (“WFOE”),
have entered into exclusive consulting, service and other
agreements.
NOW
THEREFORE, through
mutual negotiations, the Parties hereto agree as follows:
ARTICLE
I
TRANSFER
OF EQUITY INTEREST
(a)
Grant
of Purchase Right
Each
of
Party
B-1
and
Party
B-2
hereby
irrevocably grants Party A the exclusive right to purchase or designate one
or
more persons (the “Specified
Person”)
to
purchase all or any portion of the Equity Interest from Party
B-1
and
Party
B-2,
subject
to compliance with legal restriction under applicable PRC laws (the “Purchase
Right”).
Neither Party
B-1
nor
Party
B-2
shall
sell all or any portion of the Equity Interest to any party other than Party
A
and/or the Specified Person. Party
C
hereby
acknowledges that Party
B-1
and
Party
B-2
may
grant the Purchase Right to Party A. As used in this Agreement, the term
“person”
refers
to an individual, corporation, joint enterprise, partnership, enterprise, trust
or non-corporation organization.
(b)
Steps
for Exercise of the Purchase Right
Compliance
with PRC laws and regulations are conditions precedent to exercise of the
Purchase Right by Party A. To the extent Party A wishes to exercise the Purchase
Right, it shall issue a written notice (the “Purchase
Notice”)
to
Party
B-1
and
Party
B-2,
which
such Purchase Notice shall state: (A) that Party A intends to exercise the
Purchase Right; (B) the percentage of the equity interest to be purchased
therewith; and (C) the effective date or transfer date.
(c) Consideration
of the Equity Interest
The
transfer fee (“Transfer
Fee”)
payable
by Party A shall be negotiated by and between Party A, Party
B-1
and
Party
B-2
through
negotiation according to the evaluation of the equity interest by a qualified
investment banking firm, and such amount shall be the lowest price allowable
by
PRC law and regulations.
(d) Transfer
of the Equity Interest
Each
time
Party A exercises the Purchase Right:
(i) Party
B-1
and
Party
B-2
shall
ensure that (A) Party
C
timely
convenes a shareholders’ meeting and (B) the shareholders of Party
C
shall
pass resolutions providing that Party
B-1
and
Party
B-2
may
transfer the Equity Interest to Party A or the Specified Person.
(ii) Each
of
Party
B-1
and
Party
B-2
shall
enter into equity transfer contract relating to the Equity Interest pursuant
to
this Agreement and the Purchase Notice (an “Equity
Transfer Contract”).
(iii) The
Parties shall execute all other necessary agreements or documents, obtain all
necessary government approvals and consents, and take all necessary actions
to
(A) legally transfer the ownership of the Equity Interest to Party A or the
Specified Person and (B) ensure that Party A or the Specified Person will be
the
registered owner of the Equity Interest. The Equity Interest shall be free
from
any security interest. For the purpose of this Agreement, the term “security
interest”
shall
include any guarantee, mortgage, third party right or interest, purchase right,
preemption right, offset right, ownership withholding right or other security
arrangement. A security interest shall not include any security interest
incurred pursuant to this Agreement or the Equity Interest Pledge Agreement.
The
term “Equity
Interest Pledge Agreement”
shall
refer to the agreement entered into by and between Party
B-1,
Party
B-2
and
WFOE
effective as of November 14, 2007. Pursuant
to the Equity Interest
Pledge
Agreement, Party
B-1
and
Party
B-2
pledged
the Equity Interest to WFOE
as
security payment of fees pursuant to the Exclusive Technical Consulting and
Service Agreement which is entered into by and between Party
C
and
WFOE
effective as of November 14, 2007 (the “Service
Agreement”).
2
(e) Payment
for the Equity Interest
Party
A
shall pay the Transfer Fee to Party
B-1
and
Party
B-2
in
accordance with the provision of Article 1(c).
ARTICLE
II
COVENANTS
RELATING TO THE EQUITY INTEREST
(a)
Covenants
of Party C
(i) Without
the written consent of Party A or WFOE,
Party C
will not supplement, amend or modify any provisions of the constitutional
documents of Party
C,
and
will not increase or reduce its registered capital or change to equity structure
in any way.
(ii) Party
C
shall
remain in good standing, and prudently and efficiently operate its business
and
corporate affairs in accordance with commercial standards and
practice.
(iii) Without
the prior written consent of Party A or WFOE,
Party
C
shall
not sell, transfer, mortgage or dispose of any of its assets, business or
beneficial rights, or allow the creation of any security interest upon its
assets.
(iv) Without
the prior written consent of Party A or WFOE,
Party
C
shall
not incur or guaranty any debt, or permit the existence of any debt, other
than
(A) debt that is incurred during the course of normal business operations
(excluding business loans) and (B) debt that has been previously disclosed
to
Party A and to which Party A has provided prior written consent.
(v) Party
C
shall
operate in the normal course of business and maintain the value of its assets,
shall not take any action which adversely influences its business operations
or
the value of its assets.
(vi) Without
the prior written consent of Party A or WFOE,
Party
C
shall
not enter into any material agreement except in the normal course of business.
(For the purpose of this subsection, an agreement representing an amount in
excess of RMB100,000 shall be deemed as a material agreement).
(vii) Without
the prior written consent of Party A or WFOE,
Party
C
shall
not provide any loans or credit to any third party.
(viii) At
the
request of Party A, Party
C
shall
provide Party A with any and all materials relating to the business operation
and financial status of Party
C.
3
(ix) Party
C
shall
purchase business insurance from an insurance company acceptable to Party A
and
shall maintain such insurance. The amount and kind of such insurance shall
be
similar to insurance carried by other companies which operate similar businesses
and possess similar assets.
(x) Without
the prior written consent of Party A or WFOE,
Party
C
shall
not merge with, make an investment in, combine with or purchase the equity
or
substantially all the assets of any other entity.
(xi) Party
C
shall
inform Party A of actual or threatened litigation, arbitration, or
administrative procedures relating to the assets, business and beneficial rights
of Party
C.
(xii) Party
C
shall
execute all necessary or proper documents, take all necessary or proper actions,
substitute all necessary or proper claims, and make all necessary or proper
answer to all compensation claims.
(xiii) Without
the prior written consent of Party A, Party
C
shall
not grant any dividend to its shareholders.
(b) Covenants
of Party B-1 and Party B-2
(i) Without
the prior written consent of Party A or WFOE,
neither
Party
B-1
nor
Party
B-2
shall
sell, transfer, mortgage or dispose of any rights or interest relating to the
Equity Interest, or allow any creation of other security interest on the Equity
Interest (excluding the security interest under this Agreement and the Equity
Interest Pledge Agreement).
(ii) Without
the prior written consent of Party A or WFOE,
each of
Party
B-1
and
Party
B-2
shall
use his best efforts to prevent the shareholders of Party
C
from
adopting resolutions relating to the sale, transfer, mortgage, disposal of
any
rights or interests relating to the Equity Interest, or allowing any creation
of
other security interest on the Equity Interest (excluding the security interest
under this Agreement and the Equity Interest Pledge Agreement).
(iii) Without
the prior written consent from Party A or WFOE,
each of
Party
B-1
and
Party
B-2
shall
use his best efforts to prevent the other shareholders of Party
C,
if any,
from approving resolutions relating to (A) Party
C’s
merger
with, combination with or purchase of any person or (B) Party
C’s
investment in any person.
(iv) Each
of
Party
B-1
and
Party
B-2
shall
inform Party A of any actual or threatened litigation, arbitration, or
administrative procedure.
(v) Each
of
Party
B-1
and
Party
B-2
shall
take all reasonable efforts to ensure that the other shareholders of
Party
C,
if any,
approve the transfer of the Equity Interest as set out in this
Agreement.
(vi) In
order
to keep the ownership of the Equity Interest, each of Party
B-1
and
Party
B-2
shall
execute all necessary or proper documents, take all necessary or proper actions,
substitute all necessary or proper claims, and make all necessary or proper
responses to all compensation claims.
4
(vii) Upon
the
request of Party A from time to time, each of Party
B-1
and
Party
B-2
shall
immediately transfer the Equity Interest to Party A or the Specified Person
pursuant to the terms of this Agreement.
(viii) Each
of
Party
B-1
and
Party
B-2
shall
strictly comply with this Agreement and any other agreements which may be
entered into by and among Party
B-1,
Party
B-2,
Party
C,
Party A
and WFOE
collectively or separately, and shall perform his obligations under this
Agreement, and shall not make any actions which shall affect the validity and
enforceability of this Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
(a) Each
of
Party B-1, Party B-2 and Party C, severally and not jointly, make the following
representations on the date of this Agreement and the date of each of Equity
Transfer Contract:
(i) Such
party has the power to enter into and deliver this Agreement and/or the Equity
Transfer Contract which will be executed by it for each transfer of the Equity
Interest, and such Party has the power and capacity to perform its obligations
under this Agreement and/or the Equity Transfer Contract. Upon the execution
of
this Agreement and/or the Equity Transfer Contract, such documents shall
constitute valid and legally binding documents and may be enforceable in
accordance therewith.
(ii) Neither
the execution and delivery of this Agreement or any Equity Transfer Contract,
nor performance of the obligations under this Agreement or any Equity Transfer
Contract will: (A) violate applicable law; (B) conflict with such Party’s
Articles of Association or other organizational documents; (C) breach any
contract or document which such Party is a party or which is binding upon such
Party; (D) violate any acquired permit, approval or any valid qualification;
or
(E) result in the termination or revocation or additional conditions to the
acquired permit or approval.
(iii) Party
C
has no outstanding debt except for (A) debts, which were incurred in the normal
business operations; and (B) debt that has been previously disclosed to Party
A
and to which Party A has provided written consent.
(iv) Party
C
is in compliance with all applicable laws and regulations.
(v) There
is
no actual, pending or potential litigation, arbitration, or administrative
procedures relating to the Equity Interest, the assets of Party C or any other
matters of Party C.
(b) Each
of
Party B-1 and Party B-2, severally and not jointly, make the following
representation on the dates of this Agreement and on the date of each Equity
Transfer Contract:
5
Each
of
Party B-1 and Party B-2 maintains full and transferable ownership on all of
its
assets and facilities. Except for the pledge incurred by this Agreement and
the
pledge of the Equity Interest incurred by the Equity Interests Pledge Agreement,
there is no other pledge and/or mortgage on the Equity Interest.
ARTICLE
IV
EFFECTIVE
DATE
(a) This
Agreement shall be executed and come into effect as of the date first set forth
above. This Agreement shall expire on the date that is twenty-five (25) years
following the date hereof unless earlier terminated as set forth in this
Agreement or upon mutual agreement of the Parties hereto.
(b) This
Agreement may be extended prior to termination for one or more twenty-five
(25)
year terms upon written notice by Party A, provided such extension is permitted
by law and subject to the approval of the registration administration for the
extension of Party C’s business duration. The parties will cooperate to renew
this Agreement if such renewal is legally permitted at the time.
ARTICLE
V
GOVERNING
LAW AND DISPUTE SETTLEMENT
(a)
Governing
Law
This
Agreement shall be governed by and interpreted according to the laws of the
PRC.
(b)
Dispute
Settlement
The
Parties shall negotiate in good faith to settle any dispute relating to the
interpretation or implementation of this Agreement. To the extent such dispute
cannot be settled within thirty (30) days from the first date a Party issues
written notice requesting settlement of dispute through negotiation, each Party
may submit the dispute to the China International Economic and Trade Arbitration
Committee for arbitration according to the requisite arbitration rules. The
arbitration shall be held in Beijing. The
arbitration proceedings shall be conducted in Chinese. The
arbitration award is final and binding on each party.
ARTICLE
VI
TAX
AND EXPENSES
Each
Party shall bear any and all of its own tax, costs and expenses relating to
preparing for and executing this Agreement and each Equity Transfer Contract.
6
ARTICLE
VII
NOTICE
Any
notice or other communication under this Agreement shall be in Chinese and
be
sent to the address listed below or other address as may be designated from
time
to time by hand delivery or mail or facsimile. Any notice required or given
hereunder shall be deemed to have been served: (a) on the same date if sent
by
hand delivery; (b) on the tenth day if sent by air-mail, (c) on the fourth
day
if sent by the professional hand delivery which is acknowledged worldwide;
and
(d) the receipt date displayed on the transmission confirmation notice if sent
by facsimile.
Party
A:
|
00-00
Xxxx Xxxxxx, Xxxxx 0X-0, Xxxxxxxx, Xxx Xxxx, 00000,
XXX.
|
Party B-1: |
CAO
Lei
|
Room
5-A-602, Fangchengyuanyiqu, Fengtai District, Beijing.
Party B-2: |
XXXXX
Xxxxxxx
|
Room
21-304,707 Suo, Third Avenue, Dingzigu, Hongqiao District, Tianjin.
Party C: |
Sino-Global
Shipping Agency Ltd.
|
Xxxxxxxx
0 Xx.0000, Xxxxxxxxxxxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx.
ARTICLE
VIII
CONFIDENTIALITY
The
Parties acknowledge and confirm that any oral or written information relating
to
this Agreement communicated among the Parties shall be deemed to be confidential
information (“Confidential
Information”).
The
Parties shall keep such Confidential Information confidential and shall not
disclose it to any third party without written consent from the other Party.
The
provisions of this Section 8 shall not apply in the following situations: (a)
such information is publicly available or will become publicly available (it
is
not disclosed by the Party receiving such Confidential Information); (b) such
information is disclosed in accordance with applicable laws or regulations;
or
(c) a Party discloses Confidential Information to its attorney or financial
advisor so long as such attorney or legal advisor needs to access such
information and agrees to keep such information confidential. The disclosure
by
an employee or agent of a Party shall be deemed to be disclosed by the Party
itself, and the Party shall undertake liability therefor. The Parties agree
that
the provisions of this Article shall survive notwithstanding the termination
of
this Agreement.
ARTICLE
IX
FURTHER
ASSURANCE
The
Parties agree that they will execute any and all necessary documents required
for the purpose of performing or objective of this Agreement. The Parties will
take all necessary actions for the purpose of performing or objective of this
Agreement or take actions which are benefit for the purpose of this Agreement.
7
ARTICLE
X
MISCELLANEOUS
(a) Amendment
and supplementation
Any
revision to, amendment of or supplement to this Agreement must be in writing
and
be executed by each Party hereto.
(b) Compliance
with laws and regulations
The
Parties shall comply with all applicable laws and regulations which have been
formally issued.
(c) Entire
agreement
Unless
it
is otherwise revised, amended or supplemented, this Agreement and its appendices
constitute the entire agreement among the Parties as to the subject matter,
and
supersede any prior oral or written negotiations, statements or agreement among
the parties relating thereto.
(d)
Headings
Headings
in this Agreement are only used for reading convenience, and shall not be used
to interpret, explain or otherwise influence the meaning of the provisions
of
this Agreement.
(e) Language
This
Agreement is made in Chinese and English in three originals. The Chinese version
will prevail in the event of any inconsistency between the English and any
Chinese translations thereof.
(f) Severability
If
any of
the terms of this Agreement is declared invalid, illegal or unenforceable in
accordance with any applicable laws or regulations, the validity and
enforceability of the other terms hereof shall nevertheless remain unaffected.
The Parties hereto agree to negotiate to restructure such invalid, illegal
or
unenforceable terms so as to maintain economic impact.
(g) Successor
This
Agreement shall bind the permitted transferee or successor of each Party and
shall be interpreted for its benefit.
(h) Continue
to be effective
(i) Any
duties occurred in relation to the Agreement prior to termination or expiration
shall continue to be effective after expiration or termination of the Agreement.
(ii) The
provisions of Articles 5, 7, 8 and 10(h) shall survive the termination of this
Agreement.
(i) Waiver
Each
Party may waive the terms and conditions under this Agreement in writing. Such
waiver must be duly signed. Any waiver relating to the breach of the other
Party
in certain circumstance shall not be deemed as that a waiver for the similar
breach as in other circumstances.
[Remainder
of Page Left Intentionally Blank - Signature Page
Follows]
8
IN
WITNESS WHEREOF,
the
Parties have executed this Agreement on the date first above
written.
Party
A: Sino-Global
Shipping America, Ltd.
|
||
(seal)
|
/s/ Cao Lei | |
Legal
Representative
|
||
Date:
|
November 14, 2007 | |
Party
B-1: CAO Lei
|
||
/s/ Cao Xxx | ||
XXX
Lei
|
||
Date:
|
November 14, 2007 | |
Party B-2: XXXXX Xxxxxxx | ||
/s/ Xxxxx Xxxxxxx | ||
XXXXX
Xxxxxxx
|
||
Date:
|
November 14, 2007 | |
Party Cw: Sino-Global Shipping Agency Ltd. | ||
(seal)
|
/s/ Cao Lei | |
Legal
Representative
|
||
Date:
|
November 14, 2007 |
9
Appendix
Announcement
Letter
Sino-Global
Shipping Agency Ltd. (“Sino-Global”)
is a limited liability company established on June 6, 2001. I, as the
shareholder of Sino-Global,
hold 96.74% equity interest of Sino-Global.
I, together with the other shareholder, XXXXX Xxxxxxx, hold 100% equity interest
of Sino-Global.
I hereby irrevocably waive any pre-emptive right I may have upon the other
3.26%
equity interest held by XXXXX Xxxxxxx, and will not encumber the transfer of
the
equity interest you proposed.
This
Announcement Letter is effective from the date of signature.
/s/ Cao Xxx | |
XXX
Lei
|
Effective
Date: November
14, 2007
10
Announcement
Letter
Sino-Global
Shipping Agency Ltd. (“Sino-Global”)
is a limited liability company established on June 6, 2001. I, as the
shareholder of Sino-Global,
hold 3.26% equity interest of Sino-Global.
I, together with the other shareholder, CAO Lei, hold 100% equity interest
of
Sino-Global.
I hereby irrevocably waive any pre-emptive right I may have upon the other
96.74% equity interest held by CAO Lei, and will not encumber the transfer
of
the equity interest you proposed.
This
Announcement Letter is effective from the date of signature.
/s/ Xxxxx Xxxxxxx | |
XXXXX
Xxxxxxx
|
Effective
Date: November 14, 2007
11