BUSINESSES AND RELATED ASSETS TRANSFER AGREEMENT
Between
SHANGHAI SIFANG INFORMATION TECHNOLOGY CO., LTD.
and
SHANGHAI TCH DATA TECHNOLOGY CO., LTD.
BUSINESSES AND RELATED ASSETS TRANSFER AGREEMENT
Between
SHANGHAI SIFANG INFORMATION TECHNOLOGY CO., LTD.
and
SHANGHAI TCH DATA TECHNOLOGY CO., LTD.
THIS AGREEMENT is made in Shanghai Municipality, People's Republic of China
("PRC") on this 26th day of May, 2004 by and between
(1) SHANGHAI SIFANG INFORMATION TECHNOLOGY CO., LTD., with its legal address at
▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇; (the
"Transferor")
and
(2) SHANGHAI TCH DATA TECHNOLOGY CO., LTD., with its legal address at ▇▇. ▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ New District, Shanghai, PRC. (the "Transferee")
WHEREAS:
(A) The Transferor is a domestic limited liability company by shares primarily
engaged in the operation of telecom value-added service and related
Businesses, including but not limited to pager paging service, pager stock
information providing service, mobile phone message providing service and
sales of pagers and mobile phones;
(B) The Transferee is a wholly foreign-owned company;
(C) The Transferor agrees to transfer the Businesses and their related assets,
equities and corresponding liabilities listed in Appendix I to the
Transferee, and the Transferee agrees to accept the aforesaid transfer of
Businesses and their related assets, equities and corresponding
liabilities.
THEREFORE, THE PARTIES HEREBY AGREE as follows:
1. DEFINITIONS
Unless the context requires otherwise, the following terms shall have the
meanings given to them below when used in this Agreement:
"Businesses" means the businesses listed in Section (1) of Appendix I, which are
operated by the Transferor on the signing day of This Agreement and shall be
transferred to the Transferee by the Transferor according to This Agreement.
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"Assets" means all the listed assets, equities and corresponding liabilities
related to the Businesses in Section (2) of Appendix I, which are owned by the
Transferor on the signing day of This Agreement and shall be transferred to the
Transferor according to this agreement.
"Parties" means both the Transferor and the Transferee, and a "Party" means
either one of them.
2. TRANSFER OF BUSINESSES AND RELATED ASSETS
2.1 The Transferor hereby agrees to transfer to the Transferee, and the
Transferee hereby agrees to acquire the Businesses in accordance with the
provisions of This Agreement.
2.2 The Transferor hereby agrees to transfer to the Transferee, and the
Transferee hereby agrees to acquire the Assets that related to the Businesses in
accordance with the provisions of this Agreement. The Assets listed in Section
(2) of Appendix I shall be determined by the principle of necessity to the
Businesses or the principle of financial matching.
2.3 The Parties agree that the Assets to be transferred by the Transferor
to the Transferee under This Agreement shall include all intangible assets
besides those listed in Section 2 of Annex 1 which are owned by the Transferor
and related to the Business, including but not limited to, the client data,
contract relationship, business information and trade secrets etc. of various
types.
2.4 The Parties agree that the transferring price for the Businesses and
Assets under this Agreement shall be determined by the net book value of the
aforesaid Assets, which is 55,433,284.00 RMB equivalence of 6,678,709.00 US
dollars.
2.5 The Transferee shall have the right of pre-emption to purchase the
Transferee's remaining business and related assets if the law permits. Once the
law permits, the Transferor shall, upon Transferee's request, transfer them to
the Transferee, with the price determined by the net book value or appraisal
value.
3. DELIVERY OF BUSINESSES AND ASSETS AND PAYMENT OF TRANSFERRING PRICE
3.1 The Businesses shall be delivered to the Transferee from the Transferor
at the signing date of this Agreement.
The delivery of the Assets related to the Businesses shall be handled by
the parties in accordance with Section 3.3 of this Agreement. Before the Assets
being delivered, the Transferor shall operate the Businesses continuously and
the profits, loses and risks as well shall be during this period shall be taken
or burdened by the Transferee.
3.2 After the delivery of the aforesaid Businesses, the Transferor commits
that it shall not operate businesses competitive or potentially competitive with
aforesaid Businesses.
After the delivery of the aforesaid Businesses, under the circumstances
that services within the scale of Businesses are to be provided by the third
parties to the Transferor for its own business operation, these services should
be provided by the Transferee. And the parties shall therefore enter into
agreements concerning the providing of the above services.
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3.3 The Transferor shall be responsible for completing all procedures
relating to ownership transfer, registration or confirmation for the transfer of
the Businesses and the related Assets. within Sixty (60) days after the signing
date of this Agreement, the Transferor shall close the delivery of all relevant
Assets hereunder with the Transferee, and thereafter, the Parties shall sign the
Closing Acknowledgement Letter as attached in Appendix II hereof evidencing the
completion of the assets delivery.
The Transferor shall hand over all the financial, businesses operational
and related technical materials concerning the Assets to the Transferee. Under
the circumstances that any material, for its nature, cannot be delivered, the
Transferor shall take good care of these items and keep them in a place
convenient for the Transferee to look up, photocopy and use otherwise for free.
3.4 The Transferee shall pay to the Transferor 33,259,970.40 RMB, namely,
60% of the transferring price within six (6) months after the execution of This
Agreement and delivery of the Business and Related Assets to the Transferee. The
rest amount of the transferring price, namely, 22,173,313.60 RMB shall be paid
within one year from the above date.
4. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR
The Transferor represents and warrants to the Transferee that, on the signing
date of this Agreement:
a. It is a company duly organized and existing under the PRC laws and has
good title, use right and/or other rights to the Businesses and the
Assets, and all the Businesses and Related Assets are free of any
lease, lien, mortgage, pledge or other encumbrances;
b. It has all corporate powers and authorizations and has taken all
corporate actions necessary for the transfer of the Businesses and the
Assets hereunder;
c. The Businesses and the Assets to be transferred from the Transferor to
the Transferee are transferable under PRC laws.
d. The Transferor has not committed any acts that violate any laws or
regulations and may cause any significant damage to the Transferee.
e. The Transferor has not committed any acts that infringe third party's
patent, copyright, know-how, design, trademarks, goodwill or other
intellectual property protected by law and may cause any significant
damage to the Transferor.
f. The Transferor is not involved as claimant or defendant or other party
in any material or primary lawsuit, arbitration, claim or other legal
procedures, ongoing, pending or threatening as such, concerning the
Businesses and Assets, which have significant and/or primary negative
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influence to the Business and the Assets of the Transferee. Nor is
there any claims with significant negative influence to the Businesses
and/or the Assets of the Transferee or any other facts which will
cause the aforesaid claim.
The Transferor further undertakes to the Transferee that:
a. Between the date of This Agreement and the completing date of the
delivery of the Assets, it shall operate, manage, use and maintain the
Assets in a normal manner in the ordinary course of the Businesses.
b. Between the date of This Agreement and the completing date of the
delivery of the Assets, it shall not lease, mortgage, pledge or
otherwise encumber any of the Businesses or the Assets;
c. Between the date of This Agreement and the completing date of the
delivery of the Assets, it will not make any commitments concerning
the Businesses and/or the Assets, whether contractual or otherwise,
other than those necessary for the Transferor to operate the Assets in
the ordinary course of its Businesses.
d. Without the Transferee's consent, the Transferor shall not transfer to
any third party any of the remaining Assets which are not transferred
from the Transferor to the Transferee under this Agreement.
5. INDEMNIFICATION
The Transferor agrees that, if it is found to be in breach of any of the
representations and warranties set forth in Article 4 hereof, it will indemnify
the Transferee in full for and against all losses, liabilities, costs, charges
and expenses incurred by the Transferee due to such breach.
6. WAIVER
A Party's failure to insist on strict and timely performance of any provision
hereunder shall not constitute a waiver of such right, nor shall a Party's
waiver of such right constitute a waiver with respect to subsequent breaches,
similar or otherwise.
7. SEVERABILITY
If for any reason any provision of This Agreement becomes invalid or
unenforceable in full or in part, or is in violation of any applicable laws,
such provision shall be deemed to have been deleted herefrom, and to the extent
permitted under the law and considered by the Parties at the time of executing
the Agreement, replaced by an appropriate provision that is closest to what the
Parties would have desired according to the meaning and purpose of the
Agreement. The remaining provisions of this Agreement shall be valid and
binding.
8. NOTICE
Notices and other communications between the Parties shall be prepared in
Chinese in writing, and sent to the following addresses:
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Shanghai Sifang Information Technology Co., Ltd.
Address: ▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ New District, Shanghai,
PRC.
Attention: ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇-▇▇▇▇▇▇▇▇
Shanghai TCH Data Technology Co., Ltd.
Address: ▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ New District, Shanghai,
PRC.
Attention: Fu Sixing
Fax:
9. LANGUAGE
This Agreement is executed in Chinese. This Agreement and any amendment hereto
may be executed by both Parties in separate counterparts, each and all of which
shall be original and all of which together shall constitute one and the same
instrument.
10. GOVERNING LAW AND SETTLEMENT OF DISPUTES
10.1 This Agreement shall be governed by and construed in accordance with
the published laws of the mainland area of PRC.
10.2 All disputes arising from the execution of, or in connection with this
Agreement shall be settled through friendly consultation between the Parties. If
no settlement can be reached through consultation, the dispute shall be
submitted to the China International Economic and Trade Arbitration Commission
(CIETAC) Shanghai Commission for arbitration in accordance with its arbitration
rules then in effect. There shall be three arbitrators. The arbitration shall be
held in Shanghai. The language of the arbitration shall be Chinese. The arbitral
award shall be final and binding on both Parties. The costs of the arbitration
shall be borne by the losing Party, unless the arbitration award stipulates
otherwise.
11. PREVIOUS AGREEMENTS
This Agreement shall supercede all memorandums, agreements and arrangements
previously entered into between the Parties on the subject matter hereof and all
such memorandums, agreements and arrangements shall become void from the date of
the execution of this Agreement.
12. COUNTERPARTS AND EFFECTIVENESS
12.1 This Agreement may be executed by the Parties separately in one or any
number of counterparts, each of which will be an original, but all of which
together shall constitute one and the same agreement. All counterparts shall be
identical.
12.2 This Agreement shall become effective after it is duly executed by
authorized representatives of the Parties.
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13. AMENDMENTS
13.1 Any amendment to this Agreement shall be made in writing and signed by
the authorized representatives of both Parties. When necessary, an amendment to
this Agreement shall become effective upon approval of the relevant examination
and approval authority.
13.2 Matters not covered in this Agreement shall be handled in accordance
with the laws of the PRC.
IN WITNESS WHEREOF, the Parties, acting through their duly authorized
representatives, have executed this Agreement in Shanghai, the PRC, as of the
date first written above.
TRANSFEROR: Shanghai Sifang Information Technology Co., Ltd.
[Executed pursuant to corporate seal]
-------------------------------------
Authorized representative
TRANSFEREE: Shanghai TCH Technology Co., Ltd.
[Executed pursuant to corporate seal]
-------------------------------------
Authorized representative