EXHIBIT 10.32
DATED THE 22ND DAY OF SEPTEMBER 2006
[NAME]
(the "SUBSCRIBER")
AND
XINHUA FINANCE MEDIA LIMITED
(the "COMPANY")
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SHARE SUBSCRIPTION AGREEMENT
IN RESPECT OF SHARES IN THE CAPITAL OF
XINHUA FINANCE MEDIA LIMITED
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(PRESTON|GATES|▇▇▇▇▇ LOGO)
SOLICITORS
35th Floor, Two International Finance Centre
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Our ref: 55762-00001/CSMN/EWCM
TABLE OF CONTENTS
Page
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1. Definitions........................................................... 3
1.1 Definitions...................................................... 3
2. Subscription and Sale of Subscription Shares.......................... 5
2.1 Subscription and Sale............................................ 5
2.2 Closing.......................................................... 5
2.3 Closing Deliveries by the Company................................ 5
2.4 Closing Deliveries by the Subscriber............................. 5
3. Representations, Warranties and Covenants of the Company.............. 5
3.1 Organisation..................................................... 5
3.2 Authorisation.................................................... 5
3.3 No Conflict...................................................... 5
3.4 Governmental Consents and Approvals.............................. 6
3.5 Issuance of Subscription Shares.................................. 6
3.6 Offering......................................................... 6
3.7 Share Rights .................................................... 6
3.8 Litigation....................................................... 6
3.9 Winding Up, etc.................................................. 6
3.10 Registration Rights.............................................. 6
3.11 Brokerage or Commissions......................................... 6
4. Representations, Warranties and Covenants of the Subscriber........... 6
4.1 Capacity and Qualification....................................... 6
4.2 Authorisation.................................................... 6
4.3 Power and Authority.............................................. 7
4.4 Purchase Entirely for Own Account................................ 7
4.5 Accredited or Non-U.S. Investor.................................. 7
4.6 Investment Experience............................................ 7
4.7 Disclosure of Information........................................ 7
4.8 Compliance with Laws............................................. 7
4.9 The Non-compete Agreement........................................ 7
5. Conditions of Subscriber's Obligations at the Closing................. 8
5.1 Representations and Warranties................................... 8
5.2 Performance...................................................... 8
6. Conditions of the Company's Obligations at the Closing................ 8
6.1 Representations and Warranties................................... 8
6.2 Closing Deliveries............................................... 8
7. Termination........................................................... 8
7.1 Termination...................................................... 8
7.2 Effect of Termination............................................ 9
8. Miscellaneous......................................................... 9
8.1 Survival of Warranties........................................... 9
8.2 Successors and Assigns........................................... 9
8.3 Governing Law and Jurisdiction................................... 9
8.4 Counterparts..................................................... 9
8.5 Titles and Subtitles............................................. 9
8.6 Notices.......................................................... 9
8.7 Finder's Fee..................................................... 9
8.8 Expenses......................................................... 10
8.9 Severability..................................................... 10
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8.10 Entire Agreement................................................. 10
Execution................................................................ 11
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SHARE SUBSCRIPTION AGREEMENT
THIS SHARE SUBSCRIPTION AGREEMENT (this "AGREEMENT") is made on 22nd day of
September 2006 by and between
1. [NAME], holder of People's Republic of China identity card number [ID card
number] (the "SUBSCRIBER"); and
2. XINHUA FINANCE MEDIA LIMITED, a company incorporated under the laws of the
Cayman Islands with registration number 157511 and a registered address at
Century Yard, Cricket Square, ▇▇▇▇▇▇▇▇ Drive, P.O. Box 2681GT, ▇▇▇▇▇▇ Town,
Grand Cayman, Cayman Islands, British West Indies (the "COMPANY").
RECITALS
WHEREAS
A. All of the outstanding interest in [the PRC entity] has been or will be
beneficially acquired by the Company (the "TRANSACTION").
B. It is a condition of the closing of the Transaction that the parties enter
into this Subscription Agreement and the Non-compete Agreement.
C. In consideration of the Subscriber entering into the Non-compete Agreement,
the Company agrees to issue to the Subscriber, the Subscription Shares for the
Subscription Consideration.
NOW, THEREFORE, in consideration of the premises and the mutual covenants set
forth herein, the Subscriber and the Company do hereby agree as follows:
1. DEFINITIONS
1.1 Definitions. The following terms, as used herein, have the following
meanings:
"AGREED FORM" means, in relation to any document, the form of
that document which has been agreed upon by
each of the parties hereto or their legal
advisors before Closing;
"AFFILIATES" of a specified Person means 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 or, in the case of a natural
Person, such Person's spouse, parents and
descendants (whether by blood or adoption and
including stepchildren);
"BOARD" means the Board of Directors of the Company;
"BUSINESS DAY" means any Monday, Tuesday, Wednesday, Thursday
and Friday on which banks in Hong Kong are not
required or permitted by laws to be closed;
"CLOSING" shall have the meaning provided in Clause 2.2;
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"CLOSING DATE" shall have the meaning provided in Clause 2.2;
"CLOSING DELIVERABLE shall have the meaning provided in Clause 2.3;
AGREEMENTS"
"CONTROL", "CONTROLLED" means the possession, directly or indirectly,
(or any correlative term) of the power to direct or cause the direction
of the management policies of a Person, whether
through the ownership of voting securities, by
contract, credit arrangement or proxy, as
trustee, executor, agent or otherwise. For the
purpose of this definition, a Person shall be
deemed to Control another Person if such first
Person, directly or indirectly, owns or holds
more than 50% of the voting equity interests in
such another Person;
"DIRECTORS" means the members from time to time of the
Board;
"HK$" means the lawful currency of Hong Kong;
"HONG KONG" means the Hong Kong Special Administrative
Region of the People's Republic of China;
"MATERIAL ADVERSE CHANGE" means any event or circumstance occurs which
might reasonably be expected to have a material
adverse effect on the prospects, business,
operations or financial condition of the
Company or that would materially affect the
ability of the Company
"NON-COMPETE AGREEMENT" means the deed of non-competition undertaking
and release to be entered into between the
Subscriber and the Company and in the form as
set out in Appendix 1 hereto;
"PERSON" or "PERSONS" means any natural person, corporation, company,
association, partnership, organization,
business, firm, joint venture, trust,
unincorporated organization or any other entity
or organization, and shall include any
governmental authority;
"PRC" means the People's Republic of China;
"SHARES" means the common shares of US$0.001 each in the
capital of the Company;
"SUBSCRIPTION means the execution, delivery and performance
CONSIDERATION" of the obligations under the Non-compete
Agreement by [Name of the Subscriber];
"SUBSCRIPTION SHARES" means the [Number of shares] Class A Common
Shares subscribed for by the Subscriber under
this Agreement;
"$" and "US DOLLARS" means the lawful currency of the United States
of America; and
"US SECURITIES ACT" means the United States Securities Act of 1933,
as amended.
2. SUBSCRIPTION AND SALE OF SUBSCRIPTION SHARES
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2.1 Subscription and Sale. Subject to the terms and conditions set out in this
Agreement, the Subscriber agrees with the Company to subscribe for and
purchase at the Closing, and the Company agrees to issue and sell to the
Subscriber at the Closing, the Subscription Shares for the Subscription
Consideration.
2.2 Closing. As promptly as practicable following the satisfaction or, if
permissible, waiver of the conditions set forth in Clauses 5 and 6 hereof
(or such other date as may be agreed by the Company and the Subscriber),
the subscription and sale of the Subscription Shares (the "CLOSING") shall
take place at the office of the Company at ▇▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ Special Administrative Region, the People's
Republic of China, or at such other time and place as the Company and the
Subscriber mutually agree in writing. The date and time of the Closing are
herein referred to as the "CLOSING DATE".
2.3 Closing Deliveries by the Company. At the Closing, the Company shall issue
the Subscription Shares to the Subscriber as fully-paid shares and shall
enter the name of the Subscriber in the register of members of the Company
as the holders of the Subscription Shares and shall deliver to the
Subscriber (unless delivered prior to the Closing) a duly issued share
certificate of the Company issued in the name of the Subscriber in respect
of the Subscription Shares (the "CLOSING DELIVERABLE AGREEMENTS").
2.4 Closing Deliveries by the Subscriber. At the Closing, the Subscriber shall
deliver to the Company two (2) counterparts of the Non-compete Agreement
duly executed by it.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
hereby represents, warrants and covenants to the Subscriber that:
3.1 Organisation. The Company is a limited liability company duly incorporated
and validly existing under the laws of its jurisdiction of incorporation
and has all requisite corporate power and authority to own its assets and
to carry on its business as now conducted.
3.2 Authorisation. All corporate action on the part of the Company required for
the authorisation, execution and delivery of this Agreement will be taken
prior to Closing and the performance of all obligations of the Company
under each of these and the authorisation, issuance (or reservation for
issuance), sale and delivery of the Subscription Shares has been taken or
will be taken prior to the Closing, and this Agreement constitutes the
valid and legally binding obligations of the Company, enforceable in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganisation, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally and (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable principles.
3.3 No Conflict. The execution, delivery and performance of this Agreement by
the Company do not and will not (a) violate, conflict with or result in the
breach of any provision of the Amended and Restated Memorandum and Articles
of Association (or similar organizational documents) of the Company, or (b)
conflict with or violate any law or governmental order applicable to the
Company or any of the assets, properties or businesses of the Company, or
(c) 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 rights of
termination, amendment, acceleration, suspension, revocation or
cancellation of, or result in the creation of any encumbrance on any of the
assets pursuant to any note, bond, mortgage, contract, agreement, lease,
sublease, license, permit, franchise or
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other instrument or arrangement to which the Company is a party or by which
any of such assets or properties is bound or affected.
3.4 Governmental Consents and Approvals. The execution, delivery and
performance of this Agreement by the Company do not and will not require
any consent, approval, authorization or other order of, action by, filing
with or notification to, any governmental authority in Hong Kong.
3.5 Issuance of Subscription Shares. The Subscription Shares, when issued,
delivered and paid for in accordance with this Agreement, will be duly and
validly issued, fully paid and non-assessable and free of any lien or
encumbrance. The Articles of Association and the laws and regulations of
any jurisdiction that may apply to any holder of shares in the Company, the
Subscription Shares are not subject to any restrictions on transfer.
3.6 Offering. Subject to the truth and accuracy of the Subscriber's
representations set forth in Clause 4 of this Agreement, the offer, sale
and issuance of the Subscription Shares as contemplated by this Agreement
are exempt from the registration requirements of the US Securities Act, and
neither the Company nor any authorised agent acting on its behalf will take
any action hereafter that would cause the loss of such exemption.
3.7 Share Rights. The Subscription Shares shall have the rights as set out in
the Articles of Association.
3.8 Litigation. There is no litigation, arbitration, prosecution or other legal
proceedings in progress or pending or threatened against the Company nor is
there any claim or, to the best of the knowledge and belief of the Company
after having made due enquiries, any fact which may give rise to a claim
against the Company which, individually or in aggregate, may have or have
had a material effect on the financial or business conditions or prospects
(whether or not arising in the ordinary course of business) of the Company
or which is material in the context of the subscription for Subscription
Shares.
3.9 Winding up, etc. There are no bankruptcy, winding-up, receivership,
administration or other similar proceedings in progress or pending in
respect of the Company.
3.10 Registration Rights. The Company is not under any obligation, and has not
granted any rights to register any of its shares or other securities under
or pursuant to the US Securities Act.
3.11 Brokerage or Commissions. No Person is entitled to receive from the Company
any finder's fee brokerage or commission in connection with this Agreement
or anything contained in it.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SUBSCRIBER. The Subscriber
hereby represents, warrants and covenants to the Company that each of the
following statements is true:
4.1 Capacity and Qualification. It is a person or a legal entity duly organised
and validly existing under the laws of its legal registration jurisdiction
and, if an individual, he has the relevant capacity to enter into this
Agreement.
4.2 Authorisation. It has taken all corporate or other action required to
authorise, and has duly authorised, the execution, delivery and performance
of this Agreement and upon due execution and delivery the same will
constitute legal, valid and binding obligations of the Subscriber,
enforceable in accordance with their respective terms.
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4.3 Power and Authority. It has full power and authority to make the covenants
and representations referred to herein and to subscribe for and purchase
the Subscription Shares and to execute, deliver and perform this Agreement.
4.4 Purchase Entirely for Own Account. This Agreement is made with the
Subscriber in reliance upon the Subscriber's representation to the Company,
which by the Subscriber's execution of this Agreement the Subscriber hereby
confirms, that the Subscription Shares to be received by the Subscriber
will be acquired for investment and not with a view to the resale or
distribution of any part thereof, and that the Subscriber has no present
intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, the Subscriber further
represents that the Subscriber does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any
of the Subscription Shares.
4.5 Accredited or Non-U.S. Investor. It is either (i) an "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the United States Securities Act of 1933, as amended (the "US Securities
Act") or (ii) (A) not a U.S. person within the meaning of Regulation S
under the US Securities Act, (B) its principal business address is located
outside the United States, and (C) as far as the Subscriber is aware, the
transaction is not part of a plan or scheme to evade the registration
requirements of the US Securities Act; and the Subscriber was not organised
for the specific purpose of acquiring the Subscription Shares.
4.6 Investment Experience. It is an investor in securities of companies in the
development stage and acknowledges that it is able to bear the economic
risk of its investment and has such knowledge and experience in financial
or business matters that it is capable of evaluating the merits and risks
of the investment in the Subscription Shares.
4.7 Disclosure of Information. It and its advisors, if any, have been furnished
with all materials relating to the business, finances and operations of the
Company and materials relating to the Subscription Shares which have been
requested by it or its advisors. It and its advisors, if any, have been
afforded the opportunity to ask questions of representatives of the Company
and have received answers to such questions, as it deems necessary in
connection with its decision to subscribe for the Subscription Shares.
4.8 Compliance with Laws. It has complied with all applicable laws of its
jurisdiction in connection with the subscription of the Subscription Shares
and this Agreement, including (i) the legal requirements within its
jurisdiction for the purchase of Subscription Shares, (ii) any foreign
exchange restrictions applicable to such purchase, (iii) any governmental
or other consents that may need to be obtained and (iv) the income tax and
other consequences, if any, that may be relevant to the purchase, holding,
redemption, sale or transfer of the Subscription Shares. The Subscriber's
subscription and payment for and its beneficial ownership of the
Subscription Shares, will not violate any applicable securities or other
laws of the Subscriber's jurisdiction.
4.9 The Non-compete Agreement. On or before Closing, the Non-compete Agreement
will have been duly executed and, as at Closing, will be in full force and
effect and will constitute the valid and legally binding obligations of the
parties thereto, enforceable in accordance with its terms at Closing.
5. CONDITIONS OF SUBSCRIBER'S OBLIGATIONS AT THE CLOSING. The obligations of
the Subscriber under Clause 2 of this Agreement are subject to the
satisfaction or waiver, on or before the Closing Date of each of the
following:
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5.1 Representations and Warranties. The representations and warranties of the
Company contained in Clause 3 shall be true on and as of the Closing Date
with the same effect as though such representations and warranties had been
made on and as of the Closing Date.
5.2 Performance. The Company shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
6. Conditions of the Company's Obligations at the Closing. The obligations of
the Company to the Subscriber under this Agreement are subject to the
satisfaction or waiver on or before the Closing of each of the following
conditions:
6.1 Representations and Warranties. The representations and warranties of the
Subscriber contained in Clause 4 shall be true on and as of the Closing
Date with the same effect as though such representations and warranties had
been made on and as of the Closing Date.
6.2 Closing Deliveries. The obligations under Clause 2.3 have been fulfilled.
7. TERMINATION
7.1 Termination. This Agreement may be terminated at any time prior to the
Closing:
(a) by the Subscriber if, between the date hereof and the Closing: (i)
there is a Material Adverse Change, (ii) any representations and
warranties of the Company contained in this Agreement shall not have
been true and correct when made, or (iii) the Company shall not have
complied in all material respects with the covenants or agreements
contained in this Agreement to be complied with by it;
(b) by the Company but such termination shall be effective if, between the
date hereof and the Closing: (i) any representations and warranties of
the Subscriber contained in this Agreement shall not have been true
and correct when made, (ii) the Subscriber shall not have complied in
all material respects with the covenants or agreements contained in
this Agreement to be complied with by it or (iii) the Subscriber makes
a general assignment for the benefit of creditors, or any proceeding
shall be instituted by or against the Subscriber in question seeking
to adjudicate the Subscriber in question bankrupt or insolvent, or
seeking liquidation, winding up or reorganization, arrangement,
adjustment, protection, relief or composition of its debts under any
law related to bankruptcy, insolvency or reorganization;
(c) by the Subscriber or the Company if the Closing shall not have
occurred by [__, October 2006]; provided, however, that the right to
terminate this Agreement under this Clause 8.1(c) shall not be
available to any Party whose failure to fulfill any obligation under
this Agreement shall have been the cause of, or shall have resulted
in, the failure of the Closing to occur on or prior to such date;
(d) by the Subscriber or the Company in the event that any competent
governmental authority in the PRC shall have issued an order, decree
or ruling or taken any other action restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement
or the proposed business and operation of the Group or the Group
Structure Agreements; or
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(e) by the mutual written consent of the Subscriber and the Company.
7.2 Effect of Termination. In the event of termination of this Agreement as
provided in Clause 7.1 other than as provided in Clause 7.1(b), this
Agreement shall forthwith become void provided that nothing herein shall
relieve any party hereto from liability for any breach of this Agreement.
In the event of termination of this Agreement as provided in Clause 7.1(b),
this Agreement shall forthwith become void and there shall be no liability
on the part of the Company provided that neither the Company nor the
Subscriber shall be relieved from liability for any breach of this
Agreement.
8. MISCELLANEOUS
8.1 Survival of Warranties. The representations, warranties and covenants of
the Company and the Subscriber contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and
the Closing and shall in no way be affected by any investigation of the
subject matter thereof made by or on behalf of the Subscriber or the
Company.
8.2 Successors and Assigns. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
8.3 Governing Law and Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of Hong Kong. The parties hereto
irrevocably agree to submit to the non-exclusive jurisdiction of the courts
of Hong Kong in all matters arising in connection with this Agreement.
8.4 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
8.5 Titles and Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
8.6 Notices. Unless otherwise provided, any notice required or permitted under
this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon postal
service delivery, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated for such
party on the signature page hereof or by facsimile at the facsimile number
set out on the signature page hereof, or at such other address or facsimile
number as such party may designate by ten (10) days' advance written notice
to the other parties.
8.7 Finder's Fee. The Subscriber agrees to indemnify and to hold harmless the
Company from any liability for any commission or compensation in the nature
of a finders' fee (and the costs and expenses of defending against such
liability or asserted liability) for which that Subscriber or any of its
officers, partners, employees, or representatives is responsible.
8.8 Expenses. Each of the parties hereto shall be responsible for its own costs
and expenses incurred in the preparation, negotiation and execution of this
Agreement.
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8.9 Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if
such provision was so excluded and shall be enforceable in accordance with
its terms.
8.10 Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
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THE EXECUTION PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE SUBSCRIBER
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[NAME]
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Address:
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For and on behalf of
XINHUA FINANCE MEDIA LIMITED
By:
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Name:
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Title: Authorized Signatory
Address:
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