Equity Transfer Agreement between Wei Gao and Junming Wu For Beijing Novel- Super Digital TV Technology Co., Ltd. Dated on June 20, 2008
Exhibit
4.13
[Translation
of Chinese Original]
between
▇▇▇
▇▇▇
and
▇▇▇▇▇▇▇
▇▇
For
Beijing
Novel-Super Digital TV Technology Co., Ltd.
Dated on
June 20, 2008
Recitals
Whereas,
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(1)
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Beijing
Novel-Super Digital TV Technology Co., Ltd. (hereinafter referred to as
“the Target Company”) is a liability limited company registered,
incorporated and legally existed under Chinese laws, with registered
capitals of RMB33,058,400, with its address at ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇-▇,
▇▇▇▇-▇▇▇▇ Hi-Tech Mansion, Shangdi East Road, Haidian District, Beijing,
of which the legal representative is ▇▇▇▇▇▇▇
▇▇▇;
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(2)
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▇▇▇
▇▇▇ (hereinafter referred to as “Party A”) is a Chinese citizen, whose
identification card number is ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, legally holding 25%
shares of the Target Company as of the execution date of this
Agreement;
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(3)
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▇▇▇▇▇▇▇
▇▇ (hereinafter referred to as “Party B”) is a Chinese citizen, whose
identification card number is ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇;
and
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(4)
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As
a shareholder of the Target Company, Party A intends to transfer all of
his shares in the Target Company to Party B, and the Target Company will
go through relevant registration formalities in accordance with Chinese
laws and regulations;
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Through
friendly consultation, Party A and Party B (hereinafter collectively referred to
as “the Parties”) reached agreement on the relevant issues of the equity
transfer of the Target Company as below:
Article
1 Definition and Interpretation
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1.1
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Definition
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Unless
otherwise provided for in this Agreement, the following terms shall have the
following meanings:
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(1)
“Force
Majeure”
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Refers
to any event provided for in Article 8 hereof.
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(2) “Registration Administration Authority”
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Refers
to the State Administration for Industry and Commerce or its authorized
local administration for industry and commerce.
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(3)
“Articles of
Association”
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Refers
to the Articles of Association of the Target Company.
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(4)
“License”
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Refers
to any registration, filing, permission, consent, notarization,
certificate, franchise, approval and license.
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(5) “Renminbi” or “RMB”
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Refers
to the statuary currency in China.
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(6)
“Effective
Date”
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Refers
to the effective date specified in Article 11.1
hereof.
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1
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(7)
“Completion
Date”
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Refers
to the third business day upon the achievement of the last effective
condition set forth in Attachment 1 hereto, or the even later date
determined by Party B and informed to Party A in
writing.
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(8)
“Conditions for
Effectiveness”
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Refers
to the conditions contained in Attachment 1 hereto for the completion of
this transaction.
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(9)
“Business
Day”
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Refers
to the dates other than Saturdays, Sundays, and statutory holidays in
China.
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(10)
“Business
License”
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Refers
to the corporate business license issued by the Registration
Administration Authority to the Target Company.
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(11)
“China”
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For
the purpose of this Agreement, refers to the People’s Republic of China,
excluding the Hong Kong Special Administration Region, the Macao Special
Administration Region, and Taiwan Region.
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(12)
“Chinese
Law”
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For
the purpose of this Agreement, refers to the laws, regulations, rules, and
judicial interpretations promulgated by Chinese legislatures,
administrative authorities, and judicial authorities at all levels, and
known to the public, excluding the laws, regulations, rules, judicial
interpretations or legal precedents of the Hong Kong Special
Administration Region, the Macao Special Administration Region, and Taiwan
Region.
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1.2
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Interpretation
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(1)
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The
terms of “in this Agreement”, “within this Agreement”, and “under this
Agreement” or the similar reference terms referred to in this Agreement
shall refer the entire Agreement other than any special clause under this
Agreement. Unless otherwise expressly defined in this Agreement, the term
of “including”, with “but not limited to” or not, shall be regarded as
“including but limited to”.
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(2)
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The
reference to this Agreement includes the amendments, alterations,
supplements, substitutions to and/or repetition of this Agreement and its
attachments by any means from time to time. The attachments to this
Agreement are integral parts hereof, as is fully expressed in the text
hereof. Unless otherwise required by the context hereof, the reference to
a specified section, paragraph, clause and attachment shall be deemed as
the reference to that specified part hereof. In case of any conflict
between the attachment hereto and other parts hereof, the later shall
prevail.
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2
Article
2 Representation, Warranty and Undertaking
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2.1
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Representations
and Warranties of the Parties
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Each
party represents and warranties to the other party that the following
descriptions are authentic and accurate in all substantial respects as of the
execution date of this Agreement, do not result in any significant misleading in
any respect, and will remain their authenticity and accuracy from the effective
date and completion date:
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(1)
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The
Parties are Chinese citizens;
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(2)
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The
Parties have, or have obtained, all and any right, license, and necessary
consent from third party for the execution of this Agreement, and will
perform their obligations under this Agreement upon the resolution of the
general meetings of shareholders of the Target Company for the approval of
the performance of this Agreement;
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(3)
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The
performance of this Agreement does not violate the provisions of any law,
regulation, rule, organizational document, contract, or normative document
binding upon the Parties and their assets after the execution, submission,
and the resolution of the general meeting of shareholders of the Target
Company approving the performance, of this
Agreement;
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(4)
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When
this Agreement is becoming effective, the obligations of the Parties under
this Agreement shall be legally valid and binding obligations;
and
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(5)
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The
Parties are free from any ongoing legal proceeding, arbitration, or other
legal, administrative proceedings or governmental investigation
(hereinafter collectively referred to as “Proceeding”) against them, and
those reasonably regarded as having significant adverse influence on the
performance of this Agreement solely or entirely if they are unfavorable
to the Parties; and the Parties, to their best knowledge, are free from
any threatened Proceeding (hereinafter collectively referred to as
“Threat”), which might affect the execution of this Agreement in any
aspect or their capabilities to fulfill the obligations under this
Agreement.
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2.2
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Party
A further represents and warrants as
follows:
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In
addition to the information disclosed in writing to Party B, Party A represents
and warrants to Party B that the following statements are true and accurate in
all material aspects and contain no materially misleading statements in any
aspect on the date of execution of this Agreement, and will remain true and
accurate in all material aspects on the effective date and completion
date.
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(1)
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On
the date of execution hereof, registered capital of the Target Company is
RMB33,058,400, of which Party A holds 25%
equity;
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(2)
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“Whereas”
statements are true, complete and accurate in all aspects, and do not
constitute materially misleading statements in any
aspect;
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(3)
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The
Target Company has kept accounts, accounting records and financial and
other records (including all accounts, accounting records and records
legally required to be kept) which are true, accurate, updated, complete
and consistent for its operating assets and activities. The data recorded
or reflected in the accounts, accounting records and financial and other
records are free from material mistakes or conflicts, and the Target
Company has not received any notice or accusation as to any mistake or
necessity of modification to such
data;
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(4)
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Execution,
performance or compliance with this Agreement by Party A will not be in
violation, breach or constitute non-performance of the
following:
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3
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(i)
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Articles
of Association;
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(ii)
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Laws,
rules, regulations or other normative documents of China;
or
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(iii)
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Any
agreement already signed by Party
A.
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(5)
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On
the dates of execution, effectiveness, and completion of this Agreement,
the Target Company has already obtained all necessary permission to carry
out its businesses normally, possess and use all its assets. Such
permission is still effective for the time being, and the Target Company
has not violated any conditions required for such
permission.
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(6)
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The
Target Company is operating business in an ordinary, proper and usual way
or ways which are the same as or similar to its past practice (in nature
and scope), and has not signed any contract for any business beyond the
normal scope;
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(7)
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On
the date of execution hereof, there are no potential or material legal,
arbitration, administrative proceedings or other proceedings against the
Target Company; or to the knowledge of Party A, on the same date, there
are no threatening or influential material legal, arbitration,
administrative proceedings or other proceedings against the Target
Company. On the date of execution hereof, there are no pending dispute or
investigation, inquiry, proceedings, notice, judgment, order, arbitration
award or penalty imposed by the court, arbitration court or government
department against the Target Company and with materially negative
influences, and there are no facts or situations to lead to the
above-mentioned facts or
situations;
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(8)
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In
addition to the contents disclosed to Party B in writing as of the date of
execution hereof, the Target Company’s operating activities comply with
the governing Chinese laws in all materials aspects, including but not
limited to provisions concerning tax, intellectual property rights, social
insurance, labor and protection of consumers’ rights and
interests.
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2.3
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Undertakings
of Party A
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2.3.1
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From
the date of execution to the completion date hereof, Party A promises to
Party B that before obtaining written consent from Party
B:
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(1)
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Party
B will be informed of the Target Company’s operation, assets and prospect
in a reasonable range;
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(2)
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No
major contract will be signed beyond the Target Company’s normal business
scope.
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2.3.2
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Without
prejudice to Article 2.3.1, Party A promises to Party B that before
obtaining written consent from Party B, Party A will adopt all measures to
guarantee that the Target Company will not take any of the following
actions or pass any Board resolution or shareholders’ meeting resolution
before the completion date:
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(1)
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Any
creditor of the Target Company converts its right in the Target Company
into equities in the Target
Company;
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(2)
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The
Target Company repurchases its
equities;
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(3)
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The
Target Company issues new shares, grants share options or issues any bonds
or securities convertible into
equities;
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(4)
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Causing
the Target Company to dissolve, go bankrupt or
liquidate;
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(5)
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Modifying
the Articles of Association or pass any resolution inconsistent with this
Agreement;
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4
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(6)
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Allowing
the Target Company to purchase or sell any property or assets other than
for the normal and reasonable purpose of
business;
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(7)
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Acquisition
of other companies by the Target Company, which involves payment of
consideration;
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(8)
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Obtaining
any loan by the Target
Company;
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(9)
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Providing
guarantee by the Target Company for any
loan;
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(10)
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Change
of Board members of the Target
Company;
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(11)
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The
Target Company announces to distribute dividends or others to
shareholders; and
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(12)
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External
investment by the Target
Company.
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2.4
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Representations
and Warranties of Party B
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(1)
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Party
B has made necessary arrangement so as to have adequate funds to pay the
equity transfer price at the amount and within the period specified
herein; and
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(2)
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Party
B has the corresponding capability to operate and manage the Target
Company.
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2.5
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General
Provisions
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(1)
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Each
representation and warranty under this Agreement is independent from any
other representations and
warranties.
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(2)
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The
Parties agree that the Parties shall be liable for the wrong provision,
false provision, or violation, of any representation or warranty as set
forth in this Agreement, and shall defend and fully indemnify the affected
party.
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Article
3 Equity Transfer Price and Its Payment
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3.1
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Equity
Transfer
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Party A
intends to transfer 25% equities (i.e. a contribution of RMB8,264,600 of the
Target Company held by Party A) to Party B.
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3.2
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Payment
of the Transfer Price
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The
transfer price is RMB10, and Party B shall pay at one-time the total transfer
price to Party A within 5 days upon the Target Company’s obtaining the altered
corporate business license.
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3.3
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Upon
the equity transfer to Party B and his payment as specified in Article
3.2, Party B will share the profit, risk, and loss (including the profits,
creditor’s rights, and liabilities of the Target Company to be enjoyed or
shared by the shares held by Party B after this Agreement becomes
effective) of the Target Company according to Party B’s share-holding
ratio in the same.
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Article
4 Effective Condition
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4.1
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The
Premise for Party B to Fulfill His
Obligations
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The
premise for Party B to pay the equity transfer price is the completion of the
amendment to the Articles of Association in accordance with this
Agreement.
5
Article
5 Inheritance of the Target Company’s Existing Contracts and
Other
Obligations
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5.1
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As
of the date the business license is issued, the Target Company shall
continue to perform or fulfill its all and any creditor’s right and
liability, as well as the rights and obligations contained in relevant
contracts concluded with other
parties.
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Article
6 Obligations of the Parties
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6.1
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The
Parties shall within 60 days after this Agreement becomes effective submit
the executed Agreement and other necessary documents to the Registration
Administration Authority for
registration.
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6.2
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If
the Parties fail to obtain the registration with the Registration
Administration Authority within three months after this Agreement becomes
effective, this Agreement shall be deemed as automatically invalid, unless
otherwise agreed by the Parties.
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Article
7 Liability for Breach of Contract
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7.1
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If
a party hereto fails to fulfill any of his or her obligations hereunder,
or a party’s representation or warranty hereunder is proved as
inauthentic, incorrect, or incomplete in any substantial aspect, such
party shall be deemed as breach of this Agreement. The breaching party
shall rectify such breach within three business days upon the receipt from
the non-breaching party of the notice stating the specific breach. If such
breach fails to be rectified, the breaching party shall indemnify the
non-breaching party of all and any direct damage and losses resulted from
its breach, including but not limited to any claim, lawsuit, liability,
cost, or expenditure related to the foregoing breach, unless otherwise
expressly specified by this Agreement to the
contrary.
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7.2
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Without
prejudice to the rights of Party B specified in Article 7.1 hereof, the
non-breaching party shall have the right to terminate the project
documents, if the breaching party fails to rectify his breach within ten
business days upon the receipt from the non-breaching party of the notice
specifically stating the breach when breaches this Agreement in any
substantial aspect.
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Article
8 Force Majeure
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8.1
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Definition
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For the
purpose of this Agreement, “Force Majeure” refers to all and any event occurred
after the execution of this Agreement, and encumbered a party to perform or
partially perform this Agreement, and such event (including but not limited to
earthquake, typhoon, flood, fire, strike, war, or riot) cannot be reasonably
controlled or predicted by such party, or cannot be reasonably avoided or
overcome even it can be predicted.
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8.2
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Exemption
and Burden of Proof
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Any party
hereto who is unable to fulfill, or completely fulfill, any obligation hereunder
in time and duly due to the influence of force majeure may be exempted from
assuming the breaching liability caused by unduly fulfillment of obligation
specified hereunder. The affected party, however, shall, after the occurrence of
such force majeure or within three days after the recovery of communication,
provide the other party hereto of the detailed information of such force majeure
and the detailed explanation of his inability to perform, or inadequate,
untimely, and unduly fulfillment of, the obligations hereunder due to such force
majeure by facsimile and express courier. The affected party who fails to inform
the other party and provide proof as prescribed in the foregoing provisions may
not claim for the exemption from breaching liability under this
Clause.
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8.3
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Obligation
to Mitigate Influence
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The
affected party shall forthwith take all and any reasonable and feasible measures
to eliminate or mitigate the influence of such force majeure, and shall continue
to fulfill the relevant obligations upon the elimination or mitigation of the
influence of the same. The affected party who fails to fulfill the foregoing
obligations shall be assume the breaching and indemnifying liabilities for the
expanded losses or his discontinuation of the fulfillment of his obligations
hereunder upon the elimination or mitigation of such force majeure.
Article
9 Settlement of Dispute
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9.1
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Principle
of the Settlement of Dispute
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In the
event of any contestation, dispute, or claim (hereinafter collectively referred
to as “Dispute”) arising from, or in connection with, the interpretation or
performance, or the breach, termination, or validity of this Agreement, the
Parties shall first settle such Dispute through friend consultation. If such
Dispute remains unsettled within ten business days upon the commencement of the
said consultation, either party may submit the Dispute for arbitration under
Article 9.2 hereof.
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9.2
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Arbitration
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All and
any Dispute unable to be settled through friend consultation under Article 9.1
hereunder shall be settled through arbitration in accordance with effective
arbitration rules by then of China International Economic and Trade Arbitration
Commission. The arbitration place shall be Beijing, and the decision of the said
Commission shall be final, having binding force upon the Parties.
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9.3
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Responsibility
of the Continuation of Fulfillment
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In the
course of the arbitration under Article 9.2 hereof, the Parties shall continue
to fulfill their other obligations hereunder respectively, except the relevant
obligations and other disputes as the subject matters of
arbitration.
Article
10 Applicable Laws
The
execution, validity, interpretation, performance of, and the settlement of
dispute arising from, this Agreement shall be governed by Chinese
laws.
Article
11 Miscellaneous
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11.1
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Commencement
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This
Agreement shall become effective upon the completion of all conditions contained
in Attachment 1 hereto.
7
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11.2
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Expenses
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Each
party shall assume all and any expense and expenditure arising from this Project
and the negotiation of this Agreement.
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11.3
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Entire
Agreement
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The
project documents and other documents executed on the even day of this Agreement
shall consist of the entire agreement between the Parties on the equity transfer
of the Target Company, and shall supersede all previous relevant
representations, understandings, and agreements of the Parties.
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11.4
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Severability
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The
validity of any clause hereof shall not affect that of any other clauses
hereof.
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11.5
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Language
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This
Agreement is written and executed in Chinese.
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11.6
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Headline
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The
headlines used in this Agreement are for the convenience of reading, shall not
be construed as the interpretation of the clauses hereof, and shall not affect
the meaning of any clause hereof by whatsoever ways.
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11.7
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Written
Notice
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(1)
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Any
notice or communication under or in connection with this Agreement shall
be written in Chinese, and shall be delivered or sent to the addresses or
facsimile number described in Article 11.7 (3) hereof by dedicated
courier, mail, or facsimile.
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(2)
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In
absence of the proof of the receipt, such notice or communication shall be
deemed as duly served in any of the following
cases:
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(a)
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if
delivered by dedicated courier, on the day such notice or communication is
delivered to the addresses described in Article 11.7 (3)
hereof;
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(b)
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if
delivered by express courier, on the fifth business day after sending such
notice or communication; or
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(c)
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if
sent by facsimile, the time recorded and confirmed by the facsimile of the
sending party.
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(3)
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All
and any notice shall be sent to the following addresses of the Parties,
unless such addresses are changed in accordance with Article 11.7(4)
hereof:
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Party A:
▇▇▇ ▇▇▇
Address:
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇, ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, Haidian District, Beijing
Attention:
▇▇▇ ▇▇▇
Party B:
▇▇▇▇▇▇▇ ▇▇
Address:
2-8-804, Quarters of Chinese Academy of Social Sciences, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇
Attention:
▇▇▇▇▇▇▇ ▇▇
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(4)
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For
the purpose of this Clause, the date for the notice for changing the
relevant addresses or facsimile number sent by a party to another shall be
the date stated in such notice; if not stated, shall be the seventh (7th)
day after such notice is
sent.
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11.8
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Attachment
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All
attachments hereto consist of an integral part of this Agreement.
(The
remainder of this page intentionally left blank.)
9
IN
WITNESS WHEREOF, this Agreement is executed by the Parties or the duly
authorized representative on the date first written above.
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Party
A: /s/ ▇▇▇ ▇▇▇
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Party
B: /s/ ▇▇▇▇▇▇▇ ▇▇
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10
Attachment
1 Conditions for Achievement of the Completion Date
Party B
receives all of the following documents, in conformity with his requirements in
form and by virtue:
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(1)
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this
Agreement executed by the Parties;
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(2)
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an
authentic resolution of the general meeting of shareholders of the Target
Company approving Party B to acquire the shares of the same;
and
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(3)
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the
amended Articles of Association filed with the Registration Administration
Authority reflecting the equities in the Target Company acquired by Party
B.
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11