Beijing Novel-Super Digital TV Technology Co., Ltd. Equity Transfer Agreement Between Novel-Tongfang Information Engineering Co., Ltd. and Lei Zhang Dated on November 24, 2008
Exhibit
4.15
[Translation
of Chinese Original]
Beijing
Novel-Super Digital TV Technology Co., Ltd.
Between
Novel-Tongfang
Information Engineering Co., Ltd.
and
▇▇▇
▇▇▇▇▇
Dated on
November 24, 2008
Preface
Whereas:
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(1)
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Beijing
Novel-Super Digital TV Technology Co., Ltd. (hereinafter referred to as
“target company”)
is a limited liability company duly incorporated and validly existing in
accordance with Chinese laws, with a registered capital of RMB33.0584
million, domicile at ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇-▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇ as the
legal representative;
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(2)
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Novel-Tongfang
Information Engineering Co., Ltd. (hereinafter refereed to as “Party A”), a limited
liability company registered in China, has its registered address at ▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
Party A legally holds 75% equity in the target company on the date of
execution of this Agreement;
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(3)
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▇▇▇
▇▇▇▇▇ (hereinafter referred to as “Party B”) is a citizen
of the People’s Republic of China, with ID card number of
11010219690528111;
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(4)
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As
a shareholder of the target company, Party A intends to transfer part of
its equities in the target company (accounting for 37.5% of all equities
of the target company) to Party B, and the target company will perform
relevant registration procedures in accordance with the Chinese laws and
regulations;
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Party A
and Party B (collectively referred to as “both parties”) hereby reach
the following agreement as to the transfer of the target company’s equity
through amicable negotiations:
Article
1 Definitions and Interpretations
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1.1
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Definitions
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Unless
otherwise specified herein, the following terms shall have meanings as
follows:
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(1)
“Force
Majeure”
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Any
event specified in Article 8 hereof.
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(2)
“Registration Administration
Organ”
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The
State Administration for Industry & Commerce or local administrations
for industry & commerce authorized by it.
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(3)
“Articles of
Association”
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Articles
of Association of the target company.
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(4)
“Permit”
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Any
registration, filing, permission, consent, notarization, certificate and
license, concession, approval and
permit.
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1
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(5)
“Renminbi” or
“RMB”
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Statutory
currency in China.
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(6)
“Effective
Date”
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Effective
date specified in Article 11.1 hereof.
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(7)
“Completion
Date”
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The
third business day following the satisfaction of the last condition for
effectiveness in Attachment 1 hereof, or the date confirmed in writing by
Party B to Party A, whichever is the later.
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(8)
“Conditions for
Effectiveness”
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Preconditions
to complete the transaction specified in Attachment 1
hereof.
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(9)
“Business
Days”
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Days
excluding Saturdays, Sundays and statutory holidays in
China.
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(10)
“Business
License”
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Corporate
Business License issued by the registration administration organ to the
target company.
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(11)
“China”
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People’s
Republic of China: not including Hong Kong Special Administration Region,
Macao Special Administration Region and Taiwan Region for the purpose of
this Agreement.
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(12)
“Chinese
laws”
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Publicly-known
laws, regulations, rules and judicial interpretations formally issued by
legislative organs, administrative organs and judicial organs at various
levels in China; not including laws, regulations, rules, judicial
interpretations or judicial practices in Hong Kong Special Administration
Region, Macao Special Administration Region and Taiwan Region for the
purpose of this
Agreement.
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1.2
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Interpretations
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(1)
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Words
such as “hereof, herein, hereunder, hereto” and similar wordings shall
refer to the whole content of this Agreement rather than any special
article of this Agreement. Unless otherwise expressly specified herein,
the term “including”, whether followed by “but not limited to” or not,
shall be deemed as “including but not limited
to”.
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2
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(2)
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This
Agreement, when referred to, shall include this Agreement itself and
attachments modified, altered, supplemented, substituted and/or reiterated
in any form from time to time. The attachments to this Agreement shall be
an integral part hereof, with effectiveness as if fully stated in the main
body of this Agreement. Unless otherwise specified herein, any reference
to articles, paragraphs, terms and attachments shall refer to the
articles, paragraphs, terms and attachments of this Agreement. In case of
any discrepancy between the attachments and other parts hereof, such other
parts hereof shall prevail.
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Article
2 Representations, Warranties and Undertakings
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2.1
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Representation
and warranties of both parties
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Both
parties represent and warrant to each other 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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The
party has or has already obtained all rights, permit and consent from the
third party as required to execute this Agreement, and will perform its
obligations hereunder after the shareholders’ meeting of the target
company passes the resolution to perform this
Agreement;
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(2)
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Execution,
delivery, and performance of this Agreement after shareholders’ meeting of
the target company passes the resolution to perform this Agreement are in
no violation of any law, regulation, rule, organizational document,
contract or normative document binding on the party and its
assets;
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(3)
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After
this Agreement takes effect, the obligations of the party hereunder shall
constitute legally effective and binding
obligations;
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(4)
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There
is no ongoing legal proceeding, arbitration or other legal, administrative
or government investigation (collectively referred to as “proceedings”) against
the party, the unfavorable result of which is reasonably deemed to
constitute material adverse impact on the party’s performance of this
Agreement in part or in whole, and to the knowledge of the party, there is
also no situation with threatened proceedings (collectively referred to as
“threats”) which
will affect the party’s execution of this Agreement in any aspect or
influence the party’s ability to perform its obligations
hereunder.
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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
RMB33.0584 million, of which Party A holds 75%
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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(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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(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 adopt any of the following
actions or pass any Board resolution or shareholders’ meeting resolution
before the completion date:
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4
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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 issue 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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(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 of any loan by the target company for any
borrowing;
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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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Party B
has made necessary arrangements of sufficient funds to pay the equity transfer
price according to the amount and time schedule herein.
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2.5
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General
provisions
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(1)
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Each
representation and warrant made herein shall be independent from other
representations and warranties.
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(2)
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Both
parties agree to undertake responsibility for mistaken, falsified
information provided or violation of any representation or warrant herein,
and assume responsibility to plead for and fully compensate the affected
party.
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Article
3 Equity Transfer Price and Payment
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3.1
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Equity
transfer price
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Party A
shall transfer its 37.5% equity in the target company to Party B for a price of
RMB6,178,006.07.
5
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3.2
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Payment
of equity transfer price
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Party B
will pay the transfer price of RMB6,178,006.07 in lump
sum to the account designated by Party A in writing, within three months after
the target company receives the changed Corporate Business License.
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3.3
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After
the equity is vested in Party B and Party B has paid the transfer price
according to the above Article 3.2, Party B shall share profits, risks and
losses (including profits, claims and debts to be shared from the
effective date) of the target company according to its holding proportion
in the company.
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Article
4 Conditions for Effectiveness
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4.1
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Precondition
for Party B to perform its
obligations
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The
precondition for Party B to pay equity transfer price is as follows: completion
of the amendment to the Articles of Association according to this
Agreement.
Article
5 Succession of Existing Contracts of the Target Company and Other
Obligations
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5.1
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From
the date of issuance of the Business License, the target company shall
continue to assume all claims and obligations of the target company and
rights and obligations in contracts signed by the target company with
other parties.
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Article
6 Obligations of Both Parties
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6.1
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Both
parties shall submit the signed agreement and other necessary documents to
the registration administration organ for registration within 60 days from
the effective date of this
Agreement.
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6.2
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In
the event that this Agreement has not been registered with the
registration administration organ within three months from the effective
date, unless otherwise mutually agreed by both parties, this Agreement
shall be deemed to have automatically
invalidated.
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Article
7 Liabilities for Breach of Contract
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7.1
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In
case either party has failed to perform any obligation hereunder or proves
to have provided representation or warrant which is untrue, inaccurate or
incomplete in any material aspect, the party shall be deemed to have
breached this Agreement. The defaulting party shall remedy within three
business days from receipt of the observant party’s notice. In case of
failure to remedy within the specified period, then unless otherwise
provided herein, the defaulting party shall compensate for all direct
damages and losses incurred by the observant party, including but not
limited to any compensation, lawsuit, responsibility, cost or expenses in
connection with the above delinquent
behaviors.
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6
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7.2
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Without
prejudice to the rights of Party B under Article 7.1 hereof, in case
either party has breached this Agreement in any material aspect, and the
defaulting party has not remedied within ten business days from receipt of
the observant party’s notice, the observant party shall be entitled to
terminate the project documents.
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Article
8 Force Majeure Events
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8.1
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Definitions
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“Force Majeure events”
mentioned herein refer to all events which prevent one party from performing
this Agreement in whole or in part after the date of execution hereof. The
events can not be reasonably controlled or predicted, or reasonably avoided or
overcome even predictable (including but not limited to earthquake, typhoon,
flood, fire, strike, war or riot etc.)
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8.2
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Exemption
and burden of proof
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In case
either party fails to perform or fails to adequately, fully and properly perform
any obligation hereunder due to force majeure, the party shall be exempted from
breach liabilities for improper performance of obligations. However, the
affected party must provide details of force majeure and explanation as to its
failure to perform or failure to adequately, timely and properly perform the
obligations hereunder to other party via fax or express delivery within three
days from occurrence of force majeure or recovery of communications. Should the
affected party fail to perform its obligations to notify and provide documentary
evidence, the party shall not claim for exemption from breach liabilities
pursuant to this Article.
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8.3
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Obligation
for mitigating the influence
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The party
affected by force majeure shall immediately adopt all reasonable and possible
measures to eliminate or mitigate the influence of force majeure and continue to
perform relevant obligations subsequent to elimination or mitigation of the
influence. Otherwise, the affected party shall assume responsibilities for
default, compensation for the enlarged loss or failure to continue to perform
obligations hereunder subsequent to elimination or mitigation of the
influence.
Article
9 Dispute Resolution
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9.1
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Principles
for dispute resolution
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Any
dispute, controversy or claim (collectively referred to as “disputes”) arising out of or
relating to interpretation, performance of this Agreement, or breach,
termination or validity thereof, shall be resolved through friendly
negotiations. Should the dispute fail to be resolved through friendly
negotiations with ten days from occurrence of the dispute, either party may
submit the dispute for arbitration according to Article 9.2
hereof.
7
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9.2
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Arbitration
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Disputes
failing to be resolved through friendly consultations according to Article 9.1
hereof shall be resolved through arbitration by the China international Economic
and Trade Arbitration Commission in accordance with the arbitration rules in
force then. The place of arbitration is Beijing. The arbitration award shall be
final and binding upon both parties.
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9.3
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Responsibilities
to continue to perform
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In case
of any dispute under arbitration proceedings according to Article 9.2 hereof,
excluding obligations as arbitration subject matter and other disputed matters,
both parties shall continue to perform other obligations hereunder.
Article
10 Applicable Laws
The
conclusion, effectiveness, interpretation, performance, and dispute resolution
of this Agreement shall all be governed by the Chinese laws.
Article
11 Miscellaneous
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11.1
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Effectiveness
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This
Agreement shall take effect after all preconditions for effectiveness listed in
Attachment 1 hereto are satisfied.
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11.2
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Respective
assumption of expenses
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Party A
shall assume all expenses and costs arising out of negotiations on this project
and this Agreement.
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11.3
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Entire
agreement
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The
project files and other documents signed on the execution date of this Agreement
shall constitute the entire agreement of both parties concerning the transfer of
the target company’s equity, and shall substitute 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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Invalidity
of any provision hereof shall not compromise the validity of the other
provisions hereof.
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11.5
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Language
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This
Agreement shall be written and signed in Chinese.
8
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11.6
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Headings
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The
headings used herein are for convenience of reading only and shall not be deemed
as interpretations for the provisions hereof, nor otherwise affect the meaning
of the provisions hereof.
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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 in accordance with this Agreement or relating to
this Agreement shall be written in Chinese and delivered by hand, mailed,
or faxed to the address or fax number specified in Article 11.7(3)
hereof.
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(2)
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In
case of lack of proof as to receipt, any notice or communication shall be
deemed to have arrived as scheduled in any of the following
conditions:
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(a)
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In
case of personal delivery, it shall be deemed to have arrived on the date
of delivery to the address specified in Article 11.7(3)
hereof;
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(b)
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In
case of express delivery, it shall be deemed to have arrived five business
days after mailing;
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(c)
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In
case of facsimile, it shall be deemed to have arrived on the time recorded
and confirmed by the fax machine of the sending
party.
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(3)
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All
notices shall be delivered to the following addresses of parties, unless
the addresses have been altered in accordance with Article 11.7(4)
hereof.
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Party A:
Novel-Tongfang Information Engineering Co., Ltd.
Address:
F1, Seat A, Shishan Software Technology Park, Nanhai District, Foshan,
Guangdong
Fax:
▇▇▇▇-▇▇▇▇▇▇▇▇
Recipient:
▇▇▇▇▇ ▇▇▇▇
Party B:
▇▇▇ ▇▇▇▇▇
Address:
101, ▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Fax:
Recipient:
▇▇▇ ▇▇▇▇▇
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(4)
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The
notice of changing the address or fax number issued by one party to the
other party shall be deemed to have arrived on the stated date of arrival
or seven (7) days later if there is no stated date of
arrival.
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11.8
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Attachments
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All
attachments hereto shall constitute integral parts of this
Agreement.
(The
remaining part is intentionally left blank)
9
In
witness whereof, both parties or their authorized representatives have signed
this Agreement on the date written above.
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Party
A: /s/ Wangzhi Chen
Novel-Tongfang
Information Engineering Co., Ltd.
Party
B: /s/ ▇▇▇ ▇▇▇▇▇
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10
Attachment
1 Conditions for the Achievement of Completion Date
Party B
receives all the following documents, which meet Party B’s requirements in both
format and material aspects:
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(1)
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This
Agreement signed by the Parties
hereto;
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(2)
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An
authentic Board resolution of the target company to approve Party B to
accept equity of the target
company;
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(3)
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The
amendment to the Articles of Association have been filed with the
registration administrative organ, and the Articles of Association show
that Party B has accepted equity of the target
company.
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11