EXHIBIT 4.6
Execution Copy
DATED 9 NOVEMBER 2004
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(1) DONG DEFU
(2) HUO BAOZHUANG
(3) HE CHANGKE
(4) LIU CANGSONG
(5) ▇▇▇ ▇▇▇▇▇▇▇▇
(6) WU KEBO
(7) SO ▇▇▇▇▇ ▇▇▇▇▇
(8) NGAN IEK
(9) CAPITAL GROUP RESOURCES LIMITED
(10) ▇▇▇▇ ▇▇▇ HONG
(11) MODERN RAY LIMITED
(12) FINANCIERE NATEXIS SINGAPORE 2 PTE LTD.
(13) ▇▇▇▇▇▇ ▇▇▇
(14) SHEN DEMIN
AND
(15) CHINA TECHFAITH WIRELESS COMMUNICATION
TECHNOLOGY LIMITED
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SALE AND PURCHASE AGREEMENT
IN RELATION TO THE ENTIRE ISSUED SHARE CAPITAL OF
TECHFAITH WIRELESS COMMUNICATION TECHNOLOGY LIMITED
-----------------------------------------
▇▇▇▇ & NG
In association with:
King & Wood, PRC Lawyers
Goodmans
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇
Tel.: ▇▇▇▇ ▇▇▇▇
Fax.: ▇▇▇▇ ▇▇▇▇
(212772/ST/JC)
INDEX
1. INTERPRETATION....................................................... 2
2. SALE AND PURCHASE OF THE SALE SHARES................................. 4
3. CONSIDERATION........................................................ 6
4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF THE VENDORS
AND THE WARRANTORS.....................6
5. COMPLETION........................................................... 7
6. POST COMPLETION EFFECT............................................... 8
7. FURTHER ASSURANCE AND ASSISTANCE..................................... 8
8. DOCUMENTS CONSTITUTING AGREEMENT..................................... 8
9. CONFIDENTIALITY...................................................... 9
10. NOTICES AND OTHER COMMUNICATIONS .................................... 9
11. COSTS AND EXPENSES .................................................. 9
12. COUNTERPARTS ........................................................ 9
13. GOVERNING LAW AND JURISDICTION....................................... 9
SCHEDULE 1 - SUBSIDIARIES.................................................... 10
SCHEDULE 2 - PARTICULARS OF THE BVI COMPANY.................................. 11
SCHEDULE 3 - THE WARRANTIES.................................................. 13
SCHEDULE 4 - FORM OF SHAREHOLDERS' RESOLUTIONS............................... 14
SCHEDULE 5 - FORM OF BOARD RESOLUTIONS....................................... 15
2
THIS AGREEMENT IS MADE THIS 9th DAY OF November 2004
AMONG
(1) DONG DEFU of 309-03-04A, Da Xi ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, Chaoyang
District, Beijing, The PRC ("▇▇. ▇▇▇▇");
(2) HUO BAOZHUANG of Room 13-602, ▇▇▇▇▇▇▇▇ ▇▇, ▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ District, Beijing, The PRC ("▇▇. ▇▇▇");
(3) HE CHANGKE of No. 1161, Xiao ▇▇▇ ▇▇▇▇▇▇ 38, Haidian District, Beijing,
The PRC ("MR. HE");
(4) LIU CANGSONG of 5/F M7 East, No. 1 Jiu Xian ▇▇▇▇ ▇▇▇▇ Road, ▇▇▇▇ ▇▇▇▇
Disctrict, Beijing, The PRC ("▇▇. ▇▇▇");
(5) ▇▇▇ ▇▇▇▇▇▇▇▇ of 5/F M7 East, No. 1 Jiu Xian ▇▇▇▇ ▇▇▇▇ Road, Chaoyang
District, Beijing,The PRC ("▇▇. ▇▇▇");
(6) WU KEBO of ▇▇▇▇ ▇▇▇▇, ▇▇/▇., ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ("▇▇. ▇▇"No. 51);
(7) SO ▇▇▇▇▇ ▇▇▇▇▇ of ▇▇▇▇ ▇▇▇▇, ▇▇/▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ Convention
and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ("MR. SO");
(8) NGAN IEK of ▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇, ▇▇▇▇. San ▇▇▇ ▇▇▇ Centro Commercial,
17 andar, Macau ("▇▇. ▇▇▇▇");
(9) CAPITAL GROUP RESOURCES LIMITED, a company incorporated in the British
Virgin Islands whose principal place of business is situated at 39th
Floor, Two International Finance Centre, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
("CGRL");
(10) ▇▇▇▇ ▇▇▇ HONG of ▇▇▇▇ ▇▇▇▇, ▇▇/▇., ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ("▇▇. ▇▇▇▇");
(11) MODERN RAY LIMITED, a company incorporated in the British Virgin
Islands whose registered office is situated at Sea Meadow House,
Blackburne Highway, P.O. Box 116, Road Town, Tortola, British Virgin
Islands ("MRL");
(12) FINANCIERE NATEXIS SINGAPORE 2 PTE LTD., a company incorporated in
Singapore whose registered office is situated at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
#▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("FNS 2");
(▇▇. ▇▇▇▇, ▇▇. ▇▇▇, Mr. He, ▇▇. ▇▇▇, ▇▇. ▇▇▇, ▇▇. ▇▇, Mr. So, ▇▇. ▇▇▇▇,
CGRL, ▇▇. ▇▇▇▇, MRL and FNS 2 together known as the "VENDORS" or
individually the "VENDOR")
(13) ▇▇▇▇▇▇ ▇▇▇ of 39th Floor, Two International ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ("▇▇. ▇▇▇▇▇▇ ▇▇▇");
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(14) SHEN DEMIN of 1806, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇.▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ District, Beijing 100738, The
PRC ("▇▇. ▇▇▇▇");
(▇▇. ▇▇▇▇▇▇ ▇▇▇ and ▇▇. ▇▇▇▇ together known as the "WARRANTORS" or
individually the "WARRANTOR") and
(15) CHINA TECHFAITH WIRELESS COMMUNICATION TECHNOLOGY LIMITED, a company
incorporated in the Cayman Islands whose registered office is situated
at Century Yard, Cricket Square, ▇▇▇▇▇▇▇▇ Drive, P.O. Box 2681GT,
▇▇▇▇▇▇ Town, Grand Cayman, British West Indies (the "PURCHASER").
PRELIMINARY
(A) The Vendors together are the registered and beneficial owners of the
entire issued share capital of the BVI Company. ▇▇. ▇▇▇▇▇▇ ▇▇▇ is the
registered and beneficial owner of the entire issued share capital of
CGRL. ▇▇. ▇▇▇▇ is the registered and beneficial owner of the entire
issued share capital of MRL.
(B) The Vendors and the Purchaser have agreed to a sale and purchase of the
Sale Shares on the following terms and conditions.
IT IS AGREED AS FOLLOWS :-
1. INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, the following
expressions shall have the respective meanings set opposite thereto:-
"BVI COMPANY" means Techfaith Wireless Communication Technology
Limited, brief particulars of which are set out in Part A of Schedule
2;
"COMPLETION" means the completion of the sale and purchase of the Sale
Shares in accordance with the provisions of this Agreement;
"COMPLETION DATE" means the date on which Completion takes place;
"CONSIDERATION" means the consideration for the acquisition of the Sale
Shares as decribed in Clause 3;
"CONSIDERATION SHARES" means an aggregate of 9,999 fully paid up shares
of US$1.00 each in the capital of the Purchaser of which 4,114 shares,
1,670 shares, 335 shares, 1,665 shares, 815 shares, 300 shares, 170
shares, 226 shares, 254 shares, 200 shares, 100 shares and 150 shares
are to be issued and allotted to ▇▇. ▇▇▇▇, ▇▇. ▇▇▇, Mr. He, ▇▇. ▇▇▇,
▇▇. ▇▇▇, ▇▇. ▇▇, Mr. So, ▇▇. ▇▇▇▇, CGRL, ▇▇. ▇▇▇▇, MRL and FNS 2
respectively;
"GROUP" means the BVI Company and the Subsidiaries and "GROUP COMPANY"
and "MEMBER OF THE GROUP" shall be construed accordingly;
"HONG KONG" means the Hong Kong Special Administrative Region of the
PRC;
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"PRC" means the People's Republic of China;
"SALE SHARES" means 10,000 shares of US$1.00 each in the capital of the
BVI Company representing the entire issued share capital of the BVI
Company, of which 4,115 shares are held by ▇▇. ▇▇▇▇, 1,670 shares are
held by ▇▇. ▇▇▇, 335 shares are held by Mr. He, 1,665 shares are held
by ▇▇. ▇▇▇ , 815 shares are held by ▇▇. ▇▇▇, 300 shares are held by ▇▇.
▇▇, 170 shares are held by Mr. So, 226 shares are held by ▇▇. ▇▇▇▇, 254
shares are held by CGRL, 200 shares are held by ▇▇. ▇▇▇▇, 100 shares
are held by MRL and 150 shares are held by FNS 2;
"SECURITIES AND EXCHANGE COMMISSION" means the United States Securities
and Exchange Commision;
"SUBSIDIARIES" means the companies whose name and registered office
addresses are set out in Schedule 1;
"US$" means the United States dollars; and
"WARRANTIES" means the warranties representations and undertakings set
out in Schedule 3 and referred to in Clause 4.1.
1.2 Any reference to a Clause, sub-clause or Schedule (other than to a
Schedule to a statutory provision) is a reference to a Clause or a
sub-clause or Schedule to this Agreement and the Schedules form part of
and are deemed to be incorporated into this Agreement.
1.3 Words denoting the singular number or the masculine shall include the
plural or the feminine or neuter and vice versa.
1.4 Any reference to "SUBSIDIARIES" has the meaning ascribed to it in the
Companies Ordinance (Cap 32) of the Laws of Hong Kong. Any reference to
an ordinance, statute, legislation or enactment shall be construed as a
reference to such ordinance, statute, legislation or enactment as may
be amended or re-enacted from time to time and for the time being in
force.
1.5 The headings to the Clauses of this Agreement are for ease of reference
only and shall be ignored in interpreting this Agreement.
2. SALE AND PURCHASE OF THE SALE SHARES
2.1 ▇▇. ▇▇▇▇ shall, as beneficial owner sell to the Purchaser and the
Purchaser, relying on the representations, warranties, undertakings and
indemnities made or given by the Vendors and the Warrantors and subject
to the terms and conditions contained in this Agreement, shall purchase
from ▇▇. ▇▇▇▇ 4,115 Sale Shares free from all claims, charges, liens,
encumbrances, equities and third party rights and together with all
rights attached thereto and all dividends and distributions declared,
paid or made in respect thereof after the Completion Date.
2.2 ▇▇. ▇▇▇ shall, as beneficial owner sell to the Purchaser and the
Purchaser, relying on the representations, warranties, undertakings and
indemnities made or given by the Vendors and the Warrantors and subject
to the terms and conditions contained in this Agreement,
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shall purchase from ▇▇. ▇▇▇ 1,670 Sale Shares free from all claims,
charges, liens, encumbrances, equities and third party rights and
together with all rights attached thereto and all dividends and
distributions declared, paid or made in respect thereof after the
Completion Date.
2.3 Mr. He shall, as beneficial owner sell to the Purchaser and the
Purchaser, relying on the representations, warranties, undertakings and
indemnities made or given by the Vendors and the Warrantors and subject
to the terms and conditions contained in this Agreement, shall purchase
from Mr. He 335 Sale Shares free from all claims, charges, liens,
encumbrances, equities and third party rights and together with all
rights attached thereto and all dividends and distributions declared,
paid or made in respect thereof after the Completion Date.
2.4 ▇▇. ▇▇▇ shall, as beneficial owner sell to the Purchaser and the
Purchaser, relying on the representations, warranties, undertakings and
indemnities made or given by the Vendors and the Warrantors and subject
to the terms and conditions contained in this Agreement, shall purchase
from ▇▇. ▇▇▇ 1,665 Sale Shares free from all claims, charges, liens,
encumbrances, equities and third party rights and together with all
rights attached thereto and all dividends and distributions declared,
paid or made in respect thereof after the Completion Date.
2.5 ▇▇. ▇▇▇ shall, as beneficial owner sell to the Purchaser and the
Purchaser, relying on the representations, warranties, undertakings and
indemnities made or given by the Vendors and the Warrantors and subject
to the terms and conditions contained in this Agreement, shall purchase
from ▇▇. ▇▇▇ 815 Sale Shares free from all claims, charges, liens,
encumbrances, equities and third party rights and together with all
rights attached thereto and all dividends and distributions declared,
paid or made in respect thereof after the Completion Date.
2.6 ▇▇. ▇▇ shall, as beneficial owner sell to the Purchaser and the
Purchaser, relying on the representations, warranties, undertakings and
indemnities made or given by the Vendors and the Warrantors and subject
to the terms and conditions contained in this Agreement, shall purchase
from ▇▇. ▇▇ 300 Sale Shares free from all claims, charges, liens,
encumbrances, equities and third party rights and together with all
rights attached thereto and all dividends and distributions declared,
paid or made in respect thereof after the Completion Date.
2.7 Mr. So shall, as beneficial owner sell to the Purchaser and the
Purchaser, relying on the representations, warranties, undertakings and
indemnities made or given by the Vendors and the Warrantors and subject
to the terms and conditions contained in this Agreement, shall purchase
from Mr. So 170 Sale Shares free from all claims, charges, liens,
encumbrances, equities and third party rights and together with all
rights attached thereto and all dividends and distributions declared,
paid or made in respect thereof after the Completion Date.
2.8 ▇▇. ▇▇▇▇ shall, as beneficial owner sell to the Purchaser and the
Purchaser, relying on the representations, warranties, undertakings and
indemnities made or given by the Vendors and the Warrantors and subject
to the terms and conditions contained in this Agreement, shall purchase
from ▇▇. ▇▇▇▇ 226 Sale Shares free from all claims, charges, liens,
encumbrances, equities and third party rights and together with all
rights attached thereto
4
and all dividends and distributions declared, paid or made in respect
thereof after the Completion Date.
2.9 CGRL shall, as beneficial owner sell to the Purchaser and the
Purchaser, relying on the representations, warranties, undertakings and
indemnities made or given by the Vendors and the Warrantors and subject
to the terms and conditions contained in this Agreement, shall purchase
from CGRL 254 Sale Shares free from all claims, charges, liens,
encumbrances, equities and third party rights and together with all
rights attached thereto and all dividends and distributions declared,
paid or made in respect thereof after the Completion Date.
2.10 ▇▇. ▇▇▇▇ shall, as beneficial owner sell to the Purchaser and the
Purchaser, relying on the representations, warranties, undertakings and
indemnities made or given by the Vendors and the Warrantors and subject
to the terms and conditions contained in this Agreement, shall purchase
from ▇▇. ▇▇▇▇ 200 Sale Shares free from all claims, charges, liens,
encumbrances, equities and third party rights and together with all
rights attached thereto and all dividends and distributions declared,
paid or made in respect thereof after the Completion Date.
2.11 MRL shall, as beneficial owner sell to the Purchaser and the Purchaser,
relying on the representations, warranties, undertakings and
indemnities made or given by the Vendors and the Warrantors and subject
to the terms and conditions contained in this Agreement, shall purchase
from MRL 100 Sale Shares free from all claims, charges, liens,
encumbrances, equities and third party rights and together with all
rights attached thereto and all dividends and distributions declared,
paid or made in respect thereof after the Completion Date.
2.12 FNS 2 shall, as beneficial owner sell to the Purchaser and the
Purchaser, relying on the representations, warranties, undertakings and
indemnities made or given by the Vendors and the Warrantors and subject
to the terms and conditions contained in this Agreement, shall purchase
from FNS 2 150 Sale Shares free from all claims, charges, liens,
encumbrances, equities and third party rights and together with all
rights attached thereto and all dividends and distributions declared,
paid or made in respect thereof after the Completion Date.
3. CONSIDERATION
3.1 The total consideration for the sale by the Vendors of the Sale Shares
shall be (i) the allotment and issue by the Purchaser on the terms of
Clause 3.2 to each of the Vendors (or their respective nominees) of
such number of Consideration Shares as are set out by the name of the
respective Vendor in Column 2 of Part B of Schedule 2; and (ii) the
Company applying its reserves to pay up in full the one existing share
of US$1.00 each in the capital of the Purchaser which as at the date
hereof has been issued to ▇▇. ▇▇▇▇ nil paid.
3.2 The Consideration Shares shall be allotted and issued as fully paid and
shall rank pari passu in all respects with the existing ordinary shares
issued in the capital of the Purchaser.
4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF THE VENDORS AND THE
WARRANTORS
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4.1 Each of the Vendors and the Warrantors hereby severally represents,
warrants and undertakes to the Purchaser (for itself and as trustee for
each Group Company) that each of the matters set out in Schedule 3
(each of the Warranties being hereinafter referred to as a "WARRANTY"
and together as the "WARRANTIES") (insofar as it relates to the
respective Vendor or the Warrantor or a company controlled by the
Warrantor) is true and correct in all respects as at the date of this
Agreement and at Completion and acknowledges that the Purchaser is
entering into this Agreement in reliance upon the Warranties and that
the Purchaser shall be entitled to treat the Warranties as conditions
of this Agreement.
4.2 Each of the Warranties set out in each sub-paragraph of Schedule 3
hereto shall be separate and independent and save as expressly provided
shall not be limited by reference to any other sub-paragraph or
anything in this Agreement or the Schedules hereto.
4.3 The Purchaser's rights in respect of each of the Warranties shall
survive Completion and continue in full force and effect
notwithstanding Completion.
4.4 Each of the Vendors and the Warrantors undertakes (insofar as the
Warranty relates to the respective Vendor or the Warrantor or a company
controlled by the Warrantor) to indemnify the Purchaser against all
costs (including legal costs on an indemnity basis), expenses or other
liabilities which the Purchaser may properly incur either before or
after the commencement of any action in connection with:-
4.4.1 the settlement of any claim that any of the Warranties is
untrue or misleading or has been breached;
4.4.2 any legal proceedings in which the Purchaser claims that any
of the Warranties is untrue or misleading or has been breached
and in which judgment is given for the Purchaser; or
4.4.3 the enforcement of any such settlement or judgment.
5. COMPLETION
5.1 Completion shall take place at the offices of ▇▇▇▇ & Ng at ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ or such other place as
the parties may agree forthwith upon the execution of this Agreement,
when all the following business will be simultaneously transacted:-
5.1.1 each of the Vendors shall deliver to the Purchaser or as it
may direct the following:-
(a) instruments of transfer in favour of the Purchaser in
respect of the Sale Shares duly executed by the
registered holders thereof;
(b) original share certificates in respect of the Sale
Shares (if any);
(c) such other documents as may be required to give a
good and effective transfer of title of the Sale
Shares to the Purchaser and/or its nominee(s) and to
enable it/them to become the registered holders
thereof; and
6
(d) the statutory books (which shall be written up to and
including the Completion Date), the certificate of
incorporation, business registration certificate and
common seal of each of the BVI Company and the
Subsidiaries and such other statutory records of the
BVI Company and the Subsidiaries as are in his
possession or control.
5.1.2 each of the Vendors and the Warrantors shall cause a meeting
of the board of directors of the BVI Company to be held at
which resolutions shall be passed to approve the transfer of
the Sale Shares referred to; and
5.1.3 the Purchaser shall:-
(a) procure the passing of the shareholder's resolution
in the form set out in Schedule 4 and the board
resolutions in Schedule 5 to authorise the allotment
and issue of the Consideration Shares to the Vendors
(or as the Vendors may otherwise direct) and the
payment of the capital of the nil-paid shares on the
terms of Clause 3.1;
(b) deliver to the Vendors original share certificates
for the Consideration Shares issued by the Purchaser
(if requested by the Vendors); and
(c) arrange to present the instruments of transfer
together with the share certificates received from
the Vendors in respect of the Sale Shares to the BVI
Company for registration of such transfer.
5.2 The transactions described in Clause 5.1 shall take place at the same
time, so that in default of the performance of any such transactions by
either party, the other party shall not be obliged to complete this
Agreement or perform any obligations hereunder (without prejudice to
any further legal remedies).
6. POST COMPLETION EFFECT
This Agreement shall remain in full force and effect after and
notwithstanding Completion in respect of all obligations, agreements,
covenants, undertakings, conditions, representations, warranties or
indemnities which have not been done, observed or performed at or prior
to Completion and that the parties may take action for any breach or
non-fulfilment of any of such obligations, agreement, covenants,
undertakings, conditions, representations, warranties or indemnities
either before or after Completion (whether or not such breach or
non-fulfilment may have been known to or discoverable by the Purchaser
prior to Completion) it being agreed that Completion shall not be
deemed to constitute a waiver of or operate as an estoppel against any
right to take any such action.
7. FURTHER ASSURANCE AND ASSISTANCE
The Vendors shall, and the Warrantors shall procure that the Vendors
shall, do, execute and perform and shall procure to be done, executed
and performed all such further acts, deeds, documents and things as the
Purchaser may require from time to time effectively to vest the
beneficial ownership of the Sale Shares in the Purchaser or as it
directs free from all liens, charges, options, encumbrances or adverse
rights or interest of any kind and otherwise to give to the Purchaser
the full benefit of this Agreement.
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8. DOCUMENTS CONSTITUTING AGREEMENT
This Agreement and all agreements entered or to be entered into
pursuant to the terms of this Agreement together constitute the entire
agreement and understanding between the parties in connection with the
subject-matter of this Agreement and supersedes all previous proposals,
representations, warranties, agreements or undertakings relating
thereto whether oral, written or otherwise and neither party has relied
on any such proposals, representations, warranties, agreements or
undertakings.
9. CONFIDENTIALITY
Other than such disclosure as may be required by the Securities and
Exchange Commission or applicable securities law or regulations of the
United States of America, none of the parties hereto shall make any
announcement or release or disclose any information concerning this
Agreement or the transactions herein referred to or disclose the
identity of any of the other parties (save disclosure to their
respective professional advisers who are under a duty of
confidentiality) without the prior written consent of the other
parties.
10. NOTICES AND OTHER COMMUNICATIONS
Any notice or other communications to be given under this Agreement
shall be in writing and may be delivered by hand or given by facsimile,
telex, telegram or cable to the respective addresses of the parties set
out in this Agreement. Any such notice or communication shall be sent
to the party to whom it is addressed and must contain sufficient
reference and/or particulars to render it readily identifiable with the
subject matter of this Agreement. If so delivered by hand or given by
facsimile, telex, telegram or cable such notice or communication shall
be deemed received on the date of despatch and if so sent by post (or,
if sent to an address outside of Hong Kong, so sent by first class
air-mail) shall be deemed received 2 business days after the date of
despatch.
11. COSTS AND EXPENSES
The parties hereto bear their respective legal and professional fees,
costs and expenses incurred in the negotiation, preparation and
execution of this Agreement and all documents contemplated hereby.
12. COUNTERPARTS
This Agreement may be executed in counterparts and all counterparts
together shall constitute one document.
13. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed and take effect in
all respects in accordance with the laws of Hong Kong and the parties
hereto agree to submit to the non-exclusive jurisdiction of the courts
of Hong Kong.
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SCHEDULE 1
SUBSIDIARIES
Name Address
---- -------
Great ▇▇▇▇▇▇▇ Technology Limited P.O. Box 957, Offshore Incorporations Centre,
Road Town, Tortola, British Virgin Islands.
▇▇▇ Technology Limited P.O. Box 957, Offshore Incorporations Centre,
Road Town, Tortola, British Virgin Islands.
Finest Technology Limited P.O. Box 957, Offshore Incorporations Centre,
Road Town, Tortola, British Virgin Islands.
Beijing Centel Technology R&D Co., Ltd. No. 1 Jiu Xian Qiao East Road, ▇▇▇▇ ▇▇▇▇ District,
Beijing 100016, the PRC.
STEP Technologies (Beijing) Co., Ltd. ▇▇. ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇-▇, ▇▇.▇ Jiu Xian Qiao East
Road, ▇▇▇▇ ▇▇▇▇ District, Beijing 100016, the PRC.
Leadtech Communication Technology 6F/8#, Riverfront, Harbor, ▇▇.▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇▇▇▇▇▇) Limited Pudong, Shanghai, the PRC.
First Achieve Technology Limited Room 1909, 19/F., ▇▇▇▇▇▇▇▇▇ House, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇.
Beijing Techfaith Technology R&D Co., Ltd. ▇▇. ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the PRC.
9
SCHEDULE 2
PART A
PARTICULARS OF THE BVI COMPANY
Name : Techfaith Wireless Communication Technology
Limited (formerly known as "Techfaith
Holdings Limited")
Company number : 551631
Place of incorporation : British Virgin Islands
Date of incorporation : 8th July 2003
Registered office : ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ Incorporations Centre,
Road Town, Tortola, British Virgin Islands
Authorised share capital : US$50,000 divided into 50,000 shares of
US$1.00 each
Issued share capital : US$10,000 divided into 10,000 shares of
US$1.00
Registered and beneficial : No. of
Owners of the Sale Shares Sale Shares Registered Owner Beneficial Owner
----------- ---------------- ----------------
4,115 ▇▇. ▇▇▇▇ ▇▇. ▇▇▇▇
1,670 ▇▇. ▇▇▇ ▇▇. ▇▇▇
335 Mr. He Mr. He
1,665 ▇▇. ▇▇▇ ▇▇. ▇▇▇
815 ▇▇. ▇▇▇ ▇▇. ▇▇▇
300 ▇▇. ▇▇ ▇▇. ▇▇
170 Mr. So Mr. So
226 ▇▇. ▇▇▇▇ ▇▇. ▇▇▇▇
254 CGRL CGRL
200 ▇▇. ▇▇▇▇ ▇▇. ▇▇▇▇
100 MRL MRL
150 FNS 2 FNS 2
Directors : ▇▇. ▇▇▇▇, ▇▇. ▇▇▇, Mr. He and Mr. ▇▇▇ ▇▇▇
Principal activity : Investment holding
10
PART B
Name
No. of Consideration Shares to be issued and
alloted by the Purchaser
1. ▇▇. ▇▇▇▇ 4,114
2. ▇▇. ▇▇▇ 1,670
3. Mr. He 335
4. ▇▇. ▇▇▇ 1,665
5. ▇▇. ▇▇▇ 815
6. ▇▇. ▇▇ 300
7. Mr. So 170
8. ▇▇. ▇▇▇▇ 226
9. CGRL 254
10. ▇▇. ▇▇▇▇ 200
11. MRL 100
12. FNS 2 150
11
SCHEDULE 3
THE WARRANTIES
1. Each of the Vendors and the Warrantors is solvent, has full power and
authority, and has obtained all necessary consents and approvals, to
enter into this Agreement and to exercise its rights and perform its
obligations hereunder and all corporate and other actions required to
authorise its execution of this Agreement and its performance of its
obligations hereunder have been duly taken.
2. This Agreement is a legal, valid and binding agreement on the each of
the Vendors and the Warrantors, enforceable in accordance with its
terms.
3. The execution, delivery and performance of this Agreement by the
Vendors and the Warrantors does not and shall not violate in any
respect any provision of:
(a) any law or regulation or any order or decree of any
governmental authority, agency or court of Hong Kong;
(b) the laws and documents incorporating and constituting each of
the Vendors or the Warrantors; or
(c) any agreement or other undertaking to which any of the Vendors
or the Warrantors is a party or which is binding upon it or
any of its assets, and does not and shall not result in the
creation or imposition of any encumbrance on any of its assets
pursuant to the provisions of any such agreement or other
undertaking.
4. Each Vendor is the beneficial owner of the respective Sale Shares and
there is no option, right to acquire, mortgage, charge, pledge, lien or
other form of security or encumbrance on, over or affecting any of such
Sale Shares and there is no agreement or commitment to give or create
any of the foregoing. The BVI Company has not exercised any lien
against any of such Sale Shares.
5. There are no statutory or contractual restrictions on the Vendor's
ability to transfer its Sale Shares pursuant ot this Agreement.
6. The Sale Shares were allotted and issued fully paid, or credited as
fully paid, in accordance with and subject to the constitutional
documents of the BVI Company and in compliance with all relevant laws
of the place of incorporation of the Company and rank pari passu in all
respects inter se and with all other shares in the issued share capital
of the Company.
12
SCHEDULE 4
FORM OF SHAREHOLDER'S RESOLUTIONS
CHINA TECHFAITH WIRELESS COMMUNICATION
TECHNOLOGY LIMITED
Written Resolutions of the Shareholders
Pursuant to Article 43 of the
Articles of Association of the Company
We, being all of the shareholders of the Company entitled to receive notices of
and attend and vote at general meetings of the Company, DO HEREBY ADOPT the
following resolutions with immediate effect :-
RESOLVED THAT :-
1. SALE AND PURCHASE AGREEMENT
The sale and purchase agreement (the "SALE AND PURCHASE AGREEMENT") to
be entered into between ▇▇. ▇▇▇▇ Defu, ▇▇. ▇▇▇ Baozhuang, Mr. He
Changke, Mr, Liu Cangsong, Mr. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇ Kebo, Mr. So ▇▇▇▇▇
▇▇▇▇▇, ▇▇. ▇▇▇▇ Iek, Capital Group Resources Limited, ▇▇. ▇▇▇▇ ▇▇▇
▇▇▇▇, Modern Ray Limited, Financiere Natexis Singapore 2 Pte Ltd. as
vendors (the "VENDORS"), ▇▇. ▇▇▇▇▇▇ ▇▇▇ and ▇▇. ▇▇▇▇ Demin as
warrantors and the Company as purchaser, relating to the purchase by
the Company of the entire issued share capital in Techfaith Wireless
Communication Technology Limited (the "SALE SHARES"), be and is hereby
approved.
2. CONSIDERATION
In consideration of the sale by the Vendors of the Sale Shares, the
Directors are hereby authorised to (i) allot and issue as fully paid an
aggregate of 9,999 shares of US$1 each in the capital of the Company
(the "CONSIDERATION SHARES") to the Vendors in the proportions as set
out in Part B of Schedule 2 of the Sale and Purchase Agreement and (ii)
to apply the reserves arising from the acquisition of the Sale Shares
and allotment of the Consideration Shares in paying up in full the one
existing share of US$1.00 each in the capital of the Company which as
at the date of the Sale and Purchase Agreement has been issued nil paid
to ▇▇. ▇▇▇▇ Defu.
DATE: 2004
[SHAREHOLDER'S SIGNATURE]
13
SCHEDULE 5
FORM OF BOARD RESOLUTIONS
CHINA TECHFAITH WIRELESS COMMUNICATION
TECHNOLOGY LIMITED
Minutes of a Meeting of the Board of Directors of the Company held at [ ]
on [ ] 2004 at a.m/p.m.
--------------------------------------------------------------------
PRESENT : [ ] - Chairman of the Meeting and Director
[ ] - Director
[ ] - Director
[ ] - Director
1 CHAIRMAN OF THE MEETING
[▇▇. ▇▇▇▇] acted as Chairman of the Meeting. The Chairman declared that
the Meeting was quorate, validly convened and duly constituted.
2 DECLARATION OF INTERESTS
Each director declared his interests (if any) in the transactions which
were considered at the Meeting.
It was noted that each of the Directors who had a personal interest,
direct or indirect, in any of the transactions to be discussed at the
Meeting, which he was required by the Articles of Association of the
Company (the "ARTICLES OF ASSOCIATION") or by relevant legislation or
otherwise to disclose, had disclosed his or her interest and that, such
disclosure having been made, he was entitled by the terms of the
Articles of Association to constitute part of the quorum of the Meeting
and that his vote could be counted.
3 SALE AND PURCHASE AGREEMENT
3.1 The Chairman reported that it was proposed that the Company should
acquire the entire issued share capital (the "SALE SHARES") in
Techfaith Wireless Communication Technology Limited subject to the
terms and conditions of the Sale and Purchase Agreement (as defined
below).
3.2 There were tabled before the Meeting:
(a) a draft sale and purchase agreement (the "SALE AND PURCHASE
AGREEMENT") to be made between ▇▇. ▇▇▇▇ Defu, ▇▇. ▇▇▇
Baozhuang, Mr. He Changke, Mr, Liu Cangsong, Mr. ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇. ▇▇ Kebo, Mr. So ▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇ Iek, Capital Group
Resources Limited, ▇▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇, Modern Ray Limited,
Financiere Natexis Singapore 2 Pte. Ltd. as vendors, ▇▇▇▇▇▇
▇▇▇ and ▇▇▇▇ Demin as warrantors and the Company as purchaser;
14
(b) a share transfer form ("TRANSFER 1") in respect of 4,115
shares of Techfaith Wireless Communication Technology Limited
to be executed by ▇▇. ▇▇▇▇ Defu as the transferor and the
Company as the transferee;
(c) a share transfer form ("TRANSFER 2") in respect of 1,670
shares of Techfaith Wireless Communication Technology Limited
to be executed by ▇▇. ▇▇▇ Baozhuang as the transferor and the
Company as the transferee;
(d) a share transfer form ("TRANSFER 3") in respect of 335 shares
of Techfaith Wireless Communication Technology Limited to be
executed by Mr. He Changke as the transferor and the Company
as the transferee;
(e) a share transfer form ("TRANSFER 4") in respect of 1,665
shares of Techfaith Wireless Communication Technology Limited
to be executed by ▇▇. ▇▇▇ Cangsong as the transferor and the
Company as the transferee;
(f) a share transfer form ("TRANSFER 5") in respect of 815 shares
of Techfaith Wireless Communication Technology Limited to be
executed by Mr. ▇▇▇ ▇▇▇▇▇▇▇▇ as the transferor and the Company
as the transferee;
(g) a share transfer form ("TRANSFER 6") in respect of 300 shares
of Techfaith Wireless Communication Technology Limited to be
executed by ▇▇. ▇▇ Kebo as the transferor and the Company as
the transferee;
(h) a share transfer form ("TRANSFER 7") in respect of 170 shares
of Techfaith Wireless Communication Technology Limited to be
executed by Mr. So ▇▇▇▇▇ ▇▇▇▇▇ as the transferor and the
Company as the transferee;;
(i) a share transfer form ("TRANSFER 8") in respect of 226 shares
of Techfaith Wireless Communication Technology Limited to be
executed by ▇▇. ▇▇▇▇ Iek as the transferor and the Company as
the transferee;
(j) a share transfer form ("TRANSFER 9") in respect of 254 shares
of Techfaith Wireless Communication Technology Limited to be
executed by Capital Group Resources Limited as the transferor
and the Company as the transferee
(k) a share transfer form ("TRANSFER 10") in respect of 200 shares
of Techfaith Wireless Communication Technology Limited to be
executed by ▇▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇ as the transferor and the
Company as the transferee;
(l) a share transfer form ("TRANSFER 11") in respect of 100 shares
of Techfaith Wireless Communication Technology Limited to be
executed by Modern Ray Limited as the transferor and the
Company as the transferee;
(m) a share transfer form ("TRANSFER 12") in respect of 150 shares
of Techfaith Wireless Communication Technology Limited to be
executed by Financiere Natexis Singapore 2 Pte Ltd. as the
transferor and the Company as the transferee;
(n) written resolutions (the "WRITTEN RESOLUTIONS") of the
shareholders of the Company passed earlier today approving,
among other matters, the Sale and Purchase Agreement.
4 RESOLUTIONS
15
4.1 IT WAS RESOLVED THAT :-
(a) the acquisition of the Sale Shares would be in the best
interests and commercial benefit of the Company and such
acquisition be and the same is hereby approved;
(b) the form and substance of the Sale and Purchase Agreement be
and is hereby approved;
(c) any one Director be and is hereby authorised to sign for and
on behalf of the Company the Sale and Purchase Agreement and
Transfers 1, 2, 3 ,4, 5, 6, 7, 8, 9, 10, 11 and 12;
(d) any one Director be and is hereby authorised to sign any
further documents incidental or ancillary to or in connection
with each of the documents referred to in paragraph 3 above,
and any one Director of the Company be and is hereby
authorised to sign under the Common Seal of the Company which
may be affixed to such further documents as he considers
necessary, desirable or incidental to transactions
contemplated by the Sale and Purchase Agreement;
(e) any Director be and is hereby authorised to allot and issue as
fully paid an aggregate of 9,999 shares of US$1.00 each in the
capital of the Company (the "CONSIDERATION SHARES") to the
Vendors in such proportions as set out in Part B of Schedule 2
of the Sale and Purchase Agreement;
(f) any Director be and is hereby authorised to apply the share
premium arising from the acquisition of the Sale Shares and
allotment of the Consideration Shares in paying up in full the
one existing share of US$1.00 each in the capital of the
Company which as at the date of the Sale and Purchase
Agreement has been issued nil paid to ▇▇. ▇▇▇▇ Defu; and
(g) any one Director be and is hereby authorised to approve any
amendments to each of the documents referred to in this
paragraph 4.1, such approval being conclusively evidenced by
his signature on the relevant documents.
5 OTHER BUSINESS
There being no further business, the Chairman declared the Meeting
closed.
-----------------------
Chairman of the Meeting
16
IN WITNESS whereof the parties hereto have executed this Agreement the day and
year first above written.
SIGNED by )
)
DONG DEFU ) /S/
-------------------------
)
in the presence of:- )
/s/
-----------------------------
[CHINESE CHARACTERS]
SIGNED by )
)
HUO BAOZHUANG ) /S/
-------------------------
)
in the presence of:- )
/s/
-----------------------------
[CHINESE CHARACTERS]
SIGNED by )
)
HE CHANGKE ) /S/
-------------------------
)
in the presence of:- )
/s/
-----------------------------
[CHINESE CHARACTERS]
SIGNED by )
)
LIU CANGSONG ) /S/
-------------------------
)
in the presence of:- )
/s/
-----------------------------
[CHINESE CHARACTERS]
SIGNED by )
)
▇▇▇ ▇▇▇▇▇▇▇▇ ) /S/
-------------------------
)
in the presence of:- )
/s/
-----------------------------
[CHINESE CHARACTERS]
SIGNED by )
)
WU KEBO ) /S/
-------------------------
)
in the presence of:- )
/s/
-----------------------------
[CHINESE CHARACTERS]
SIGNED by )
)
SO ▇▇▇▇▇ ▇▇▇▇▇ ) /S/
-------------------------
)
in the presence of:- )
▇▇▇▇▇▇ ▇▇
-------------------------------
40/F., Far East Finance Centre
-------------------------------
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
-------------------------------
SIGNED by )
)
NGAN IEK ) /S/
-------------------------
)
in the presence of:- )
▇▇▇▇ ▇▇▇▇
-------------------------------
40/F., Far East Finance Centre
-------------------------------
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
-------------------------------
SIGNED by ▇▇▇▇▇▇ ▇▇▇ )
)
for and on behalf of CAPITAL GROUP )
)
RESOURCES LIMITED ) /S/
--------------------------
)
in the presence of:- )
▇▇▇▇▇▇ ▇▇ (Witness)
-------------------------------
40/F., Far East Finance Centre
-------------------------------
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
-------------------------------
SIGNED by )
)
▇▇▇▇ ▇▇▇ HONG ) /S/
-------------------------
)
in the presence of:- )
/s/
--------------------------------
[CHINESE CHARACTERS]
SIGNED by SHEN DEMIN )
)
for and on behalf of MODERN RAY )
)
LIMITED ) /S/
-------------------------
)
in the presence of:- )
/s/
--------------------------------
[CHINESE CHARACTERS]
SIGNED by ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ )
)
for and on behalf of FINANCIERE ) /S/
-------------------------
)
NATEXIS SINGAPORE 2 PTE LTD. )
)
in the presence of:- )
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
SIGNED by )
)
▇▇▇▇▇▇ ▇▇▇ ) /S/
-------------------------
)
in the presence of:- )
▇▇▇▇▇▇ ▇▇ (Witness)
------------------------------
40/F., Far East Finance Centre
------------------------------
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
------------------------------
SIGNED by )
)
SHEN DEMIN ) /S/
-------------------------
)
in the presence of:- )
/s/
---------------------------------
[CHINESE ▇▇▇▇▇▇▇▇▇▇]
[▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇
Jiu Xian Qiao ▇▇▇▇ ▇▇
Chaoyang District
Beijing]
SIGNED by DONG DEFU )
)
for and on behalf of CHINA TECHFAITH )
)
WIRELESS COMMUNICATION ) /S/
-----------------------
)
TECHNOLOGY LIMITED )
)
in the presence of:- )
/s/
---------------------------------
[CHINESE ▇▇▇▇▇▇▇▇▇▇]
[▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇
Jiu Xian Qiao ▇▇▇▇ ▇▇
Chaoyang District
Beijing]