……24th May…..2006 IDG TECHNOLOGY VENTURE INVESTMENT, INC. and TRADE MEDIA HOLDINGS LIMITED and INTERNATIONAL DATA GROUP, INC. AGREEMENT for the sale and purchase of 10% of the shares in HC INTERNATIONAL, INC. Herbert Smith LLP
Exhibit
4.31
▇▇▇▇▇▇▇
▇▇▇▇▇
Execution
Copy
……24th
May…..2006
IDG
TECHNOLOGY VENTURE INVESTMENT, INC.
and
TRADE
MEDIA HOLDINGS LIMITED
and
INTERNATIONAL
DATA GROUP, INC.
_________________________________
AGREEMENT
for
the
sale and purchase of 10% of the shares in
HC
INTERNATIONAL, INC.
__________________________________
▇▇▇▇▇▇▇
▇▇▇▇▇ LLP
TABLE
OF CONTENTS
|
1.
|
INTERPRETATION
|
1
|
|
2.
|
CONDITIONS
|
5
|
|
3.
|
SALE
AND PURCHASE
|
6
|
|
4.
|
Acquisition
price
|
7
|
|
5.
|
Adjustment
to acquisition price
|
7
|
|
6.
|
COMPLETION
|
8
|
|
7.
|
WARRANTIES
and indemnities by the Vendor
|
10
|
|
8.
|
undertakings
and indemnities by the Vendor
|
13
|
|
9.
|
undertaking
by the purchaser
|
13
|
|
10.
|
GUARANTEE
AND INDEMNITY
|
13
|
|
11.
|
GENERAL
|
17
|
|
12.
|
NOTICES
|
19
|
|
13.
|
GOVERNING
LAW
|
20
|
THIS
AGREEMENT
is made
on 24th May 2006
BETWEEN:
|
1.
|
IDG
TECHNOLOGY VENTURE INVESTMENT, INC.,
a
company incorporated under the General Laws of the Commonwealth of
Massachusetts and having its correspondence address at ▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇ Jianguomenwei Dajie, Beijing, 100005 PRC (“IDG
or the Vendor”);
|
|
2.
|
TRADE
MEDIA HOLDINGS LIMITED,
a
company incorporated in the Cayman Islands and having its registered
address at ▇.▇. ▇▇▇ ▇▇▇ GT, Strathvale House, North Church Street,
▇▇▇▇▇▇
Town, Grand Cayman, Cayman Islands (the “Purchaser”);
and
|
|
3.
|
INTERNATIONAL
DATA GROUP, INC.,
a
company incorporated under the General Laws of the Commonwealth of
Massachusetts and having its correspondence address at ▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇ Jianguomenwei Dajie, Beijing, 100005 PRC (the “Guarantor”).
|
RECITALS:
|
(A)
|
HC
International, Inc. (the “Company”)
was incorporated in the Cayman Islands as an exempted company with
limited
liability on 3rd March, 2000 and its shares are listed on the Growth
Enterprise Market of the Stock Exchange. Further details of the Company
are set out in Part I of Schedule
1.
|
|
(B)
|
The
Vendor holds a total of 73,331,954 Shares of the Company (representing
approximately 15.32% of the total issued share capital of the Company),
as
at the date of this Agreement, out of which the Vendor has agreed
to sell
and the Purchaser has agreed to purchase the Sale Shares on the terms
and
conditions set out in this
Agreement.
|
|
(C)
|
The
Guarantor is the sole limited partner of IDG. The Guarantor has agreed
to
guarantee the obligations of the
Vendor.
|
IT
IS AGREED
as
follows:
| 1. |
INTERPRETATION
|
| 1.1 |
In
this Agreement, and in the Schedules, the following definitions are
used:
|
“Associate”
means
(i) any entity in which any member of the Group owns or is entitled to control
more than 20% of the shares, stock, voting rights and/or other participating
interest (carrying the right to vote or to the distribution of profits) in
or of
that entity; and (ii) China Search Inc.;
“Accounts”
has
the
meaning given to that term in Schedule 2;
“Acquisition
Price”
means,
subject to adjustment in accordance with clause 5, HK$1.6095 per Sale Share
totalling HK$77,027,451 for the 47,858,000 Sale Shares as at the date of this
Agreement;
“Business
Day”
means
a
day (not being a Saturday) on which banks are open for general banking business
in Hong Kong;
“CCASS”
means
the Central Clearing and Settlement System operated by Hong Kong Securities
Clearing Company Limited;
“Companies
Ordinance”
means
the Companies Ordinance, Chapter 32 of the Laws of Hong Kong;
“Completion”
means
completion of the sale and purchase of the Sale Shares in accordance with clause
6;
“Disclosure
Letter”
means
the letter from the Vendor to the Purchaser dated the date of this Agreement
and
delivered immediately prior to the execution of this Agreement;
[*
Material omitted and filed separately with the Securities and Exchange
Commission pursuant to a request for confidential treatment under Rule 14-b2
of
the Securities Exchange Act of 1934, as amended.];
“Executive”
means
the Executive Director of the Corporate Finance Division of the
SFC;
“Group”
means
the Company and the Subsidiaries;
“HC
Construction”
means
HC Construction Co., Ltd., a company incorporated in the PRC;
“HC
Construction Option”
means
the option to be granted by HC Construction to the Purchaser under the HC
Construction Option Deed in relation to HC Construction’s equity interests
(“Beijing
Huicong Option Shares”)
in
Beijing Huicong International Information Co., Ltd. (“Beijing
Huicong”),
under
which inter alia (a) HC Construction undertakes not to sell, transfer, charge
or
otherwise dispose of any of HC Construction’s equity interests in Beijing
Huicong to third parties within the Option Period (as defined in the HC
Construction Option Deed) and (b) the Purchaser shall have the right (but not
the obligation) to purchase the Beijing Huicong Option Shares at any time within
the Option Period;
“HC
Construction Option Deed”
means
the option deed to be entered into by HC Construction and the Purchaser on
the
same date as this Agreement in relation to the HC Construction
Option;
“Listing
Rules”
means
The Rules Governing the Listing of Securities on the Growth Enterprise Market
of
the Stock Exchange;
-2-
“Options”
means
the options to be granted by the Vendor and the Option Grantors to the Purchaser
under the Option Deed in relation to the Shares held by the Vendor and the
Option Grantors (“Option
Shares”)
under
which (a) the Vendor and the Option Grantors shall undertake not to sell,
transfer, charge, or otherwise dispose of, any of the Vendor’s and Option
Grantors’ interests in the Option Shares at any time within one year from the
date of Completion (the “Option
Period”);
and
(b) the Purchaser shall have the right (but not the obligation) either (i)
to
purchase from the Vendor and the Option Grantors the Option Shares or (ii)
to
require the Vendor and the Option Grantors to accept in respect of such Option
Shares a general offer made by or on behalf of the Purchaser for the Shares
at
any time during the Option Period;
“Option
Deed”
means
the option deed to be entered into by the Vendor, the Option Grantors and the
Purchaser on the same date as this Agreement in relation to the
Options;
“Option
Grantors”
means
IDG Technology Venture Investment, Inc., [*
Material omitted and filed separately with the Securities and Exchange
Commission pursuant to a request for confidential treatment under Rule 14-b2
of
the Securities Exchange Act of 1934, as amended.],
Guo
Fansheng, [*
Material omitted and filed separately with the Securities and Exchange
Commission pursuant to a request for confidential treatment under Rule 14-b2
of
the Securities Exchange Act of 1934, as amended.];
“PRC”
means
the People’s Republic of China;
“Purchaser’s
Solicitors”
means
▇▇▇▇▇▇▇ ▇▇▇▇▇ of 23rd Floor, Gloucester Tower, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇;
“Purchaser
Shareholding”
means
the proportion that the number of Shares held by the Purchaser bears to the
aggregate number of outstanding issued Shares, which was equivalent to 10%
of
the entire issued capital of the Company as at the date of Completion;
“RMB”
means
the lawful currency of the PRC;
“Sale
Shares”
means
the 47,858,000 Shares (or if such number of Shares does not represent 10% of
the
Shares in issue as at the date of Completion, then such other number of Shares
as represents 10% of the Shares in issue as at the date of Completion) to be
sold by the Vendor to the Purchaser;
“SFC”
means
the Securities and Futures Commission of Hong Kong;
“Shares”
means
ordinary shares of HK$0.10 each in the share capital of the
Company;
“Stock
Exchange”
means
The Stock Exchange of Hong Kong Limited;
“Subsidiaries”
means
all the subsidiaries and jointly controlled entities of the Company as at the
date of this Agreement including without limitation to those companies named
in
Part II of Schedule 1;
-3-
“Takeovers
Code”
means
The Codes or Takeovers and Mergers and Share Repurchases;
“Tax”
and
“Taxation”
have
the meanings given to those terms in Schedule 2;
“Vendor’s
Solicitors”
means
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Master of 16th - 19th Floors, Prince’s Building, ▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇;
“Warranties”
means
the warranties set out in Schedule 2; and
“HK$”
means
Hong Kong dollars.
| 1.2 |
In
this Agreement, words and expressions defined in the Companies Ordinance
shall bear the same meaning as in that Ordinance unless expressly
stated
otherwise.
|
| 1.3 |
In
this Agreement, save where the context otherwise
requires:
|
| 1.3.1 |
a
reference to a statute or statutory provision shall include a reference
to
that statute or provision as from time to time consolidated, modified,
re-enacted or replaced by any statute or statutory provision; to
any
repealed statute or statutory provision which it re-enacts (with
or
without modification); and any subordinate legislation made under
the
relevant statute;
|
| 1.3.2 |
words
in the singular shall include the plural, and vice
versa;
|
| 1.3.3 |
the
masculine gender shall include the feminine and neutral and vice
versa;
|
| 1.3.4 |
a
reference to a person shall include a reference to a firm, a body
corporate, an unincorporated association or to a person’s executors or
administrators;
|
| 1.3.5 |
a
reference to a clause, paragraph or Schedule (other than to a schedule
to
a statutory provision) shall be a reference to a clause, paragraph
or
Schedule (as the case may be) of or to this
Agreement;
|
| 1.3.6 |
if
a period of time is specified and commences from a given day or the
day of
an act or event, it shall be calculated exclusive of that
day;
|
| 1.3.7 |
references
to any legal term for any action, remedy, method or judicial proceeding,
legal document, legal status, court, official or any legal concept
or
thing shall in respect of any jurisdiction other than Hong Kong be
deemed
to include what most nearly approximates in that jurisdiction to
the Hong
Kong legal term;
|
| 1.3.8 |
references
to writing shall include any modes of reproducing words in a legible
and
non-transitory form;
|
| 1.3.9 |
a
reference to a balance sheet or profit and loss account shall include
a
reference to any note forming part of
it;
|
-4-
| 1.3.10 |
where
any of the Warranties is qualified by the expression “to the best of the
knowledge of the Vendor” or any similar expression, that expression shall
be taken to mean “to the best knowledge of the Vendor acting reasonably
and in good faith, after making due, diligent and careful enquiries” and
that the Vendor has used its best endeavours to ensure that all
information given in the Warranty is true, complete and accurate
in all
material respects;
|
| 1.3.11 |
a
reference to “includes” or “including” shall mean “includes without
limitation” or “including without
limitation”;
|
| 1.3.12 |
references
to documents “in the agreed terms” shall be to documents agreed between
the parties, annexed to this Agreement and initialled for identification
by the Vendor’s Solicitors and the Purchaser’s
Solicitors;
|
| 1.3.13 |
the
headings in this Agreement are for convenience only and shall not
affect
the interpretation of any provision of this Agreement;
and
|
| 1.3.14 |
references
to this Agreement include this Agreement as amended or supplemented
in
accordance with its terms.
|
| 1.4 |
The
designations adopted in the recitals and introductory statements
preceding
this clause apply throughout this Agreement and the
Schedules.
|
| 1.5 |
Where
any obligation in this Agreement is expressed to be made, undertaken
or
given by two or more parties, they shall be jointly and severally
liable
in respect of it.
|
| 2. |
CONDITIONS
|
| 2.1 |
The
provisions of this Agreement, other than clauses 1, 2, 7, 10, 12
and 13,
are subject to each of the following conditions being
satisfied:
|
| 2.1.1 |
the
obtaining in a form satisfactory to the Purchaser of any consent
to the
sale and purchase of the Sale Shares under this Agreement, if
required;
|
| 2.1.2 |
the
full and effective release of all charges, mortgages, pledges, liens,
encumbrances and other security of whatever nature over or in respect
of
all of the Sale Shares, if any; and
|
| 2.1.3 |
the
receipt of all PRC regulatory approvals in respect of companies operating
in advertising, internet and broadcasting industries as may be required
to
complete this Agreement;
|
| 2.1.4 |
the
Vendor, the Option Grantors and the Purchaser entering into the Option
Deed;
|
| 2.1.5 |
HC
Construction and the Purchaser entering into the HC Construction
Option
Deed;
|
-5-
| 2.1.6 |
all
relevant governmental and regulatory approvals (if any) relating
to the
execution of this Agreement, the Option Deed and the HC Construction
Option Deed, having been obtained, and for the avoidance of doubt
does not
relate to completion of the Option Deed and the HC Construction
Deed;
|
| 2.1.7 |
the
Executive having confirmed that (i) no mandatory offer obligation
under
Rule 26 of the Takeovers Code will be triggered as a result of the
transactions contemplated under this Agreement and the execution
of the
Option Deed and the HC Construction Option Deed and (ii) the Purchaser
is
not acting in concert with any of the Vendor, Option Grantors or
HC
Construction within the meaning of the Takeovers Code;
and
|
| 2.1.8 |
save
as specifically disclosed or otherwise provided in this Agreement
(including but not limited to the matters referred to in clause 8.1
hereof) there has been no event, change or occurrence which, individually
or together with any other event, change or occurrence has, or would,
or
could reasonably be expected to have, a material adverse effect on
or
cause a material adverse change to the financial or trading position
or
prospects of the Company,
|
and
if
those conditions have not been fulfilled (or in the case of the conditions
in
clauses 2.1.1, 2.1.2, 2.1.4, 2.1.5 and 2.1.8 waived by the Purchaser) by 21
June, 2006, the provisions of this Agreement (other than clauses 1, 7, 10,
12
and 13) shall from such date have no effect and no party shall have any
liability under them (without prejudice to the rights of any of the parties
in
respect of antecedent breaches).
| 2.2 |
The
Vendor shall procure that the conditions in clause 2.1 (relating
to itself
including clauses 2.1.1 to 2.1.3 and clause 2.1.6) are satisfied
(unless
validly waived) as soon as practicable but in any event prior to
21 June
2006. No party is entitled to withdraw from this Agreement before
21 June
2006 unless any of the conditions in clause 2.1 becomes incapable
of
fulfilment.
|
| 2.3 |
Each
party shall immediately notify the other parties as soon as it becomes
aware that a condition in clause 2.1 has been satisfied or that any
such
condition is incapable of
fulfilment.
|
| 3. |
SALE
AND PURCHASE
|
| 3.1 |
The
Vendor, as beneficial owner, shall sell or procure to be sold and
the
Purchaser shall purchase the Sale
Shares.
|
| 3.2 |
The
Sale Shares shall be sold at Completion free from any claim, option,
charge, lien, equity, encumbrance, rights of pre-emption or any other
third party rights and together with all rights attached to them
at the
date of this Agreement or subsequently becoming attached to them
(including but not limited to the rights to receive all dividends
and
other distributions, if any, declared made or paid on or after the
date of
this Agreement, but excluding any voting rights which shall only
accrue to
the Purchaser after Completion).
|
-6-
| 3.3 |
The
Vendor waives and agrees to procure the waiver of any restrictions
on
transfer (including pre-emption rights) which may exist in relation
to the
Sale Shares under the constitutional documents of the Company or
any
contract or otherwise.
|
| 3.4 |
The
Vendor shall use its best endeavours to procure that prior to Completion
the businesses of the Group shall be operated in the ordinary course
of
business in compliance with all laws and regulations and in substantially
the same manner as such businesses have been carried on before the
date of
this Agreement, so as to maintain each such business as a going concern.
Pending Completion, the Vendor shall use its best endeavours to procure
that each member of the Group:
|
| 3.4.1 |
shall
not do or omit to do (or allow to be done or to be omitted to be
done) any
act or thing (in either case whether or not in the ordinary course
of
day-to-day operations) which may breach any of the Warranties;
and
|
| 3.4.2 |
shall
take all reasonable steps to preserve and protect its business and
assets
and the Vendor shall notify the Purchaser in writing promptly of
any
material adverse change in such business or assets or of any breach
or
potential breach of the undertakings in this clause
3.4.
|
| 4. |
ACQUISITION
PRICE
|
| 4.1 |
Subject
to the adjustment in accordance with clause 5, the total consideration
for
the sale of the Sale Shares shall be the payment at Completion to
the
Vendor of the Acquisition Price.
|
| 5. |
ADJUSTMENT
TO ACQUISITION PRICE
|
| 5.1 |
Subject
to Clause 5.2 below, the Acquisition Price shall be adjusted such
that an
additional sum of HK$31,093,343 representing HK$0.6497 per Sale Share
(“Adjusted
Acquisition Price”)
shall be payable to the Vendor if
either:
|
| 5.1.1 |
[*
Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule 14-b2
of the
Securities Exchange Act of 1934, as amended.];
or
|
| 5.1.2 |
upon
completion of the sale and purchase of the Option Shares (whether
under
clause 2.1.1 or under clause 2.1.2 of the Option
Deed).
|
| 5.2 |
In
the event that the Adjusted Acquisition Price is payable, the Adjusted
Acquisition Price shall be paid by electronic funds transfer to the
bank
account of the Vendor (as notified by the Vendor prior to such payment)
within 5 Business Days from the earlier
of:
|
| 5.2.1 |
the
date on which the audited consolidated accounts for the financial
year
ending 31 December 2006 is published;
or
|
| 5.2.2 |
the
completion of the sale and purchase of the Option Shares (whether
under
clause 2.1.1 or under clause 2.1.2 of the Option
Deed).
|
-7-
| 6. |
COMPLETION
|
| 6.1 |
Subject
to Clause 2.1, Completion shall take place at the offices of the
Vendor’s
Solicitors on the fifth (5th) Business Day following the satisfaction
(or
waiver, as appropriate) of all conditions set out in clause 2.1 (or
at
such other place or time as the parties shall
agree).
|
| 6.2 |
At
Completion, the Vendor shall deliver or cause to be delivered to
the
Purchaser or the Purchaser’s
Solicitors:
|
| 6.2.1 |
duly
executed instruments of transfer and sold notes in favour of the
Purchaser
or its nominee in respect of the Sale Shares together with definitive
share certificates for them in the names of the relevant
transferors;
|
| 6.2.2 |
any
power of attorney under which any document required to be delivered
pursuant to this clause 6.2 is executed on behalf of a transferor
or other
person and, in the case of a body corporate, evidence to the satisfaction
of the Purchaser as to the authority of the person executing such
documents on behalf of the body
corporate;
|
| 6.2.3 |
in
the case of a transferor who is not registered as the holder of any
of the
Sale Shares sold by him, evidence to the Purchaser’s satisfaction of his
title or right to sell those Sale
Shares;
|
| 6.2.4 |
any
waivers, consents or other documents required to vest in the Purchaser
the
full beneficial ownership of the Sale Shares and enable the Purchaser
to
procure them to be registered in the name of the Purchaser or its
nominee;
|
| 6.2.5 |
evidence
(or failing which, written confirmation from the Vendor) to the
satisfaction of the Purchaser of the fulfilment of the conditions
(unless
validly waived by the Purchaser) specified in clauses 2.1.1 to
2.1.6;
|
| 6.2.6 |
a
cheque drawn in favour of “the Government of the Hong Kong Special
Administrative Region” for HK$77,027.45 representing the estimated stamp
duty, SFC transaction levy and Stock Exchange trading fee payable
by the
Vendor on the instruments of transfer and the sold notes in respect
of the
Sale Shares. The Vendor hereby undertake to immediately pay to the
Purchaser any additional stamp duty which may be assessable on the
Sale
Shares (excluding any penalty duty assessable due to a failure to
present
the relevant documents for stamping within the relevant time period
by the
Purchaser);
|
| 6.2.7 |
certified
copy of the resignation letters of the director of the Company who
is
referred to in clause 6.2.8(D), such registration to take effect
as at
Completion; and
|
| 6.2.8 |
certified
copy resolutions of the directors of the Company approving the following
matters:
|
-8-
| (A) |
the
transfer of the Sale Shares for registration and the entry of the
transferee in the register of members of the Company, in each case
subject
only to the transfer being subsequently presented duly stamped (if
required);
|
| (B) |
the
appointment of ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (i) as a non-executive director
of
the Company and (ii) as a member of the audit committee and remuneration
committee of the Company with effect from the date of
Completion;
|
| (C) |
the
appointment of ▇▇. ▇▇ Jianguang as a non-executive director of the
Company
with effect from the date of Completion;
and
|
| (D) |
the
resignations of two (2) existing directors of the Company, ▇▇. ▇▇▇▇
▇▇▇▇▇
and ▇▇. ▇▇▇▇ Fei, who are to be replaced by the persons referred
to in
sub-clauses (B) and (C) above, with effect from the date of
Completion.
|
| 6.3 |
At
Completion,
|
| 6.3.1 |
the
Vendor shall procure that its designated CCASS Participant gives
an
irrevocable delivery instruction to effect a book-entry settlement
of the
Sale Shares in accordance with this Agreement and the General Rules
and
the Operational Procedures to the credit of the stock accounts of
the
CCASS Participant of the Purchaser in accordance with the instructions
and
details provided to the Vendor by the Purchaser prior to
Completion;
|
| 6.3.2 |
the
Purchaser shall deliver a copy of the confirmation obtained from
the SFC
for the purpose of Clause 2.1.7;
and
|
| 6.3.3 |
the
Purchaser shall pay by electronic funds transfer for same day value
to the
bank accounts of the Vendor (as notified by the Vendor prior to
Completion) the Acquisition Price. Receipt of the same by the Vendor
shall
be a valid discharge of the Purchaser’s obligations under clause
4.1.
|
| 6.4 |
No
party shall be obliged to complete this Agreement unless the other
party
complies fully with all its obligations under clauses 6.2 and
6.3.
|
| 6.5 |
If
the Vendor shall be unable to comply with any of its obligations
under
clauses 6.2 and 6.3 on or before the date fixed for Completion the
Purchaser may:
|
| 6.5.1 |
defer
Completion with respect to the Sale Shares to a date selected by
the
Purchaser not more than 28 days after that date (in which case this
clause
shall apply to Completion as so deferred);
or
|
| 6.5.2 |
rescind
this Agreement without liability to the Vendor whereupon and from
such
date the provisions of this Agreement (other than clauses 1, 7, 10,
12 and
13)
|
-9-
shall
have no effect and no party shall have any liability under them (without
prejudice to the rights of any of the parties in respect of antecedent
breaches).
| 6.6 |
For
so long after Completion as the Vendor (or their nominee(s)) remains
the
registered holder of any of the Sale Shares, the Vendor shall hold
(or
procure the holding of) the Sale Shares and any dividend, distributions,
property and rights deriving from them in trust for the Purchaser
and
shall deal (or procure the dealing) with the Sale Shares and any
dividend,
distributions, property and rights deriving from them as the Purchaser
directs; in particular, the Vendor shall exercise (or procure the
exercise
of) all voting rights attached to the Sale Shares as the Purchaser
directs
or shall execute (or procure the execution of) an instrument of proxy
or
other document which enables the Purchaser or its representative
to attend
and vote at any meeting of the
Company.
|
| 7. |
WARRANTIES
AND INDEMNITIES BY THE
VENDOR
|
| 7.1 |
The
Vendor warrants and represents to the Purchaser in the terms of the
Warranties. The Guarantor separately warrants and represents to the
Purchaser in the terms of the Warranties on the basis that each reference
to the Vendor in the Warranties shall be deemed to be a reference
to the
Guarantor.
|
| 7.2 |
The
Vendor acknowledges that, in entering into this Agreement, the Purchaser
has relied upon prior representations by the Vendor in the terms
of the
Warranties.
|
| 7.3 |
The
Vendor shall not (in the event of any claim being made against the
Vendor
in connection with the sale of the Sale Shares to the Purchaser)
make any
claim against any member of the Group (or any Associate) or against
any
director or employee of any member of the Group (or any Associate)
on whom
the Vendor may have relied before agreeing to any term of this
Agreement.
|
| 7.4 |
Each
of the Warranties shall be construed as a separate warranty and except
where this Agreement expressly provides otherwise, each Warranty
is not
limited or restricted by reference to or inference from the terms
of any
other Warranty or any other term of this
Agreement.
|
| 7.5 |
The
Vendor shall procure that the Warranties are true and accurate at
all
times up to and including Completion by reference to the facts and
circumstances then subsisting and, for this purpose, the Warranties
shall
be deemed to be repeated at all times up to and including Completion
as if
any express or implied reference therein to the date of this Agreement
shall be replaced by a reference to the time at which such Warranty
is
deemed to be repeated.
|
| 7.6 |
The
Warranties are and shall be given subject to the matters disclosed
or
referred to in the Disclosure Letter to the intent that the Vendor
shall
not be liable by reason of any of the Warranties being untrue or
misleading or breached to the extent that the same has been disclosed
in
the Disclosure Letter.
|
-10-
| 7.7 |
The
total liability of the Vendor and the Guarantor under Clauses 7 and
8 of
this Agreement shall not exceed the Acquisition Price (as adjusted
in
accordance with Clause 4 above).
|
| 7.8 |
The
Vendor and the Guarantor shall have no liability under this
Agreement:
|
| 7.8.1 |
unless,
in the case of any particular claim, the amount thereof shall exceed
HK$1,000,000; or
|
| 7.8.2 |
until
the aggregate amount of all valid claims which could otherwise be
made
under this Agreement (including all claims which could be made but
for the
operation of Clause 7.8.1) shall exceed HK$3,000,000 at which time
all
such valid claims shall become
payable.
|
| 7.9 |
If
any claim for breach of Warranties is brought under this Agreement
in
relation to any liability of the Purchaser, the Company or any member
of
the Group which is contingent only, the Vendor shall not be liable
to make
any payment in respect thereof until such contingent liability becomes
an
actual liability.
|
| 7.10 |
In
the event of any claim for breach of any of the Warranties, it shall
be
open to the Vendor to reduce the amount of such claim by the amount
by
which at the date of such claim:
|
| 7.10.1 |
any
contingency provided against in the Accounts is certified by the
auditors
of the Company as having been discharged or satisfied below the amount
attributed thereto in the Accounts;
|
| 7.10.2 |
any
contingency provided against in the accounts is certified by the
auditors
of the Company as having been ascertained as over-provided for in
the
Accounts; and/or
|
| 7.10.3 |
the
amount of any taxation credits, reliefs or set off due to or received
by
the Purchaser, the Company or any member of the Group except to the
extent
that the same shall have been taken into account in the
Accounts;
|
and
any
costs incurred in computing and/or certifying the amount of any such reduction
shall be borne by the Vendor.
| 7.11 |
The
Vendor shall not be liable for breach of any Warranty to the extent
that
such liability arises by reason of any act or omission effected by
the
Purchaser after Completion or by reason of any retrospective change
in the
law or practice of relevant tax authorities coming into force after
the
date hereof or to the extent such liability arises or is increased
by an
increase in rates of taxation after the date hereof with retrospective
effect.
|
| 7.12 |
To
the extent that the Purchaser shall have been compensated in respect
of
any facts or circumstances for any breach of any of the Warranties
or
under any terms of this Agreement, the Purchaser shall not be entitled
to
claim under any other of the Warranties or other term of this Agreement
in
respect of the same facts or
circumstances.
|
-11-
| 7.13 |
If
the Vendor pays any amount to the Purchaser by way of damages for
breach
of the Warranties (a “Damages
Payment”)
and the Purchaser subsequently receives any amount (the “Repaid
Amount”)
from any third party otherwise than from the Vendor which payment
would
not have been received but for the circumstances giving rise to the
claim
in respect of which the Damages Payment was made, the Purchaser shall,
once it has received such amount, as soon as reasonably practicable
repay
to the Vendor the Repaid Amount.
|
| 7.14 |
If
the Vendor pays any Damages Payment to the Purchaser and any member
of the
Group subsequently receives the Repaid Amount from any third party
otherwise than from the Vendor which payment would not have been
received
but for the circumstances giving rise to the claim in respect of
which the
Damages Payment was made, the Purchaser shall as soon as reasonably
practicable repay to the Vendor such part of the Repaid Amount which
is
proportionate to its shareholding in the Company as at
Completion.
|
| 7.15 |
The
Purchaser shall be entitled to claim both before and after Completion
that
any of the Warranties is or was untrue or misleading or has or had
been
breached even if the Purchaser could have discovered on or before
entering
into this Agreement or before Completion that the Warranty in question
was
untrue or misleading or had been breached and Completion shall not
in any
way constitute a waiver of any of the Purchaser’s
rights.
|
| 7.16 |
The
Vendor undertakes to indemnify and keep indemnified the Purchaser
at any
time and from time to time from and against all claims, liabilities,
losses, reasonable costs and expenses which the Purchaser may suffer
or
incur or which may be made against the Purchaser either before or
after
the commencement of and arising out of, or in respect of, any action
in
connection with:
|
| 7.16.1 |
the
settlement of any claim that (i) any of the Warranties or any other
term
of this Agreement (together the “Undertakings”)
is untrue or misleading or has been breached; or (ii) any of the
undertakings and indemnities in clause 8 has been
breached;
|
| 7.16.2 |
any
legal proceedings taken by the Purchaser claiming that (i) any of
the
Undertakings is untrue or misleading or has been breached; or (ii)
any of
the undertakings and indemnities in clause 8 has been breached and
in
which judgment is given for the Purchaser;
and
|
| 7.16.3 |
the
enforcement of any such settlement or judgment relating to the subject
matter in clauses 7.16.1 and 7.16.2 of this
Agreement.
|
| 7.17 |
The
rights and remedies of the Purchaser in respect of a breach of any
of the
Warranties shall not be affected by Completion, by any investigation
made
by or on behalf of the Purchaser into the affairs of the Group, by
the
giving of any time or other indulgence by the Purchaser to any person,
by
the Purchaser rescinding or not rescinding this Agreement, or by
any other
cause whatsoever except a specific waiver or release by the Purchaser
in
writing; and any such waiver or release shall not prejudice or affect
any
remaining rights or remedies of the
Purchaser.
|
-12-
| 7.18 |
Nothing
in this clause 7 restricts or limits any general obligation at law
of each
of the Purchaser, the Company and the Subsidiaries to mitigate any
loss or
damage which it may suffer or incur as a consequence of any breach
of any
Warranty.
|
| 7.19 |
If
before Completion:
|
| 7.19.1 |
the
Purchaser becomes aware that any of the Warranties was at the date
of this
Agreement, or has since become, untrue or misleading or that the
Vendor is
in breach of any term of this Agreement;
or
|
| 7.19.2 |
save
as specifically disclosed or otherwise provided in this Agreement
(including clause 8.1 hereof), any other event occurs which has,
or could
be reasonably expected to have, or is likely to result in, a material
adverse effect on the financial position or business prospects of
the
Group and the Associates as a
whole;
|
the
Purchaser shall be entitled to rescind this Agreement without liability to
the
Vendor and the provisions of clause 6.5.2 shall apply.
| 7.20 |
The
rights, including rights of rescission, conferred on the Purchaser
by this
Agreement are in addition and without prejudice to all other rights
and
remedies available to the Purchaser, and no exercise or failure to
exercise a right under this Agreement or otherwise or to invoke a
remedy
shall constitute a waiver of that right or remedy by the
Purchaser.
|
| 8. |
UNDERTAKINGS
AND INDEMNITIES BY THE
VENDOR
|
[*
Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule 14-b2 of the
Securities Exchange Act of 1934, as amended.]
| 9. |
UNDERTAKING
BY THE PURCHASER
|
| 9.1 |
The
Purchaser hereby irrevocably and unconditionally undertakes to the
Vendor
that in the event that the Purchaser does not exercise the Options
during
the Option Period, upon expiry of the Option Period, or if the Options
are
exercised but the sale and purchase of the Option Shares is not completed
in accordance with the terms of the Option Deed, the director of
the
Company nominated by the Purchaser shall resign from the audit and
remuneration committees of the
Company.
|
| 9.2 |
The
Purchaser undertakes that, upon expiry of the Option Period, it shall
procure the resignation of the person nominated by the Purchaser
and
appointed as director of Beijing
Huicong.
|
| 10. |
GUARANTEE
AND INDEMNITY
|
| 10.1 |
In
consideration of the Purchaser agreeing to purchase the Sale Shares
from
the Vendor on the terms set out in this Agreement, the Guarantor
unconditionally and irrevocably guarantees to the Purchaser the due
and
punctual discharge by the Vendor of all of its
|
-13-
obligations
of whatever nature (which shall, for the avoidance of doubt, include its
liabilities to pay damages and satisfy any indemnity, agreed or otherwise)
under
this Agreement (the “Guaranteed
Obligations”)
and
promises to pay on demand each sum (including any interest charges thereon
up to
and including such charges arising from the date of demand hereof until the
date
of payment hereunder) which the Vendor is liable to pay under this
Agreement.
| 10.2 |
Without
prejudice to the rights of the Purchaser against the Vendor as primary
obligor, the Guarantor shall be deemed a principal debtor in respect
of
its obligations under this Agreement and not merely a surety and
accordingly the Guarantor shall not be discharged nor shall its liability
hereunder be affected by any act or thing or means whatsoever by
which its
said liability would not have been discharged if it had been a primary
debtor.
|
| 10.3 |
The
Guarantor’s obligations shall be a continuing guarantee. The Purchaser may
make claims and demands of the Guarantor without limit of
number.
|
| 10.4 |
The
Guarantor’s obligations shall be in addition to and not in substitution
for, and shall not be prejudiced by, any rights which the Purchaser
may
have pursuant to any other agreement or security which the Purchaser
may
enter into or obtain in relation to this Agreement or the Guaranteed
Obligations and the Guarantor’s obligations may be enforced against it
without first having recourse to any such rights or
security.
|
| 10.5 |
The
Guarantor’s liability to the Purchaser shall not be discharged, impaired
or affected by reason of:
|
| 10.5.1 |
any
time, indulgence or waiver which the Purchaser may grant to the Vendor
or
any other person;
|
| 10.5.2 |
any
legal limitation, disability or incapacity or other circumstances
relating
to the Vendor, or any amendment to or variation of any of the terms
of
this Agreement or of any Guaranteed
Obligations;
|
| 10.5.3 |
any
defect in the obligations of the
Purchaser;
|
| 10.5.4 |
any
amendment to this Agreement;
|
| 10.5.5 |
the
liquidation or dissolution of the Vendor or the appointment of a
receiver,
administrative receiver or administrator of any of the Vendor’s assets or
any change of control of the Vendor or the occurrence of any circumstance
affecting the liability of the Vendor to discharge any Guaranteed
Obligations; or
|
| 10.5.6 |
any
other matter or circumstance whereby but for this provision the Guarantor
would or might be discharged from liability under this clause
10.
|
| 10.6 |
As
a separate, additional and continuing obligation, the Guarantor
unconditionally and irrevocably undertakes with the Purchaser that,
should
the Guaranteed Obligations not be recoverable from the Guarantor
under
clauses 10.1 and 10.2 for any reason whatsoever (including, but without
prejudice to the generality of the foregoing, by reason of any
|
-14-
provision
of this Agreement being or becoming void, unenforceable or otherwise invalid
under any applicable law) then, notwithstanding that that may have been known
to
the Purchaser, the Guarantor will as a sole, original, and independent
obligation make payment of the Guaranteed Obligations to the Purchaser on demand
by way of a full indemnity.
| 10.7 |
The
Guarantor will indemnify the Purchaser against all losses, claims,
costs,
charges and expenses to which it may be subject or which it may incur
whilst acting in good faith under or pursuant to this Agreement as
a
result of any default by the Vendor in performing any Guaranteed
Obligations or by the Guarantor in performing its obligations under
this
Agreement.
|
| 10.8 |
Where:
|
| 10.8.1 |
any
discharge (whether in respect of the Guaranteed Obligations, this
Agreement or otherwise) is made in whole or in part;
or
|
| 10.8.2 |
any
arrangement is made,
|
in
either
case on the faith of any payment, security or disposition which is avoided
or
must be repaid the liability under this Agreement shall continue as if there
had
been no such discharge or arrangement and the Guarantor shall indemnify the
Purchaser in respect thereof.
| 10.9 |
The
Guarantor hereby covenants with the Purchaser that after demand has
been
made by the Purchaser hereunder and until the amount so demanded
has been
paid in full or unless otherwise agreed in writing by the
Purchaser:
|
| 10.9.1 |
the
Guarantor will not make demand for the payment of any moneys from
time to
time due or becoming due to the Guarantor from the Vendor by reason
of any
payment made by the Guarantor hereunder or exercise any other right
or
remedy to which it may be entitled in respect of such moneys including
(without prejudice to the generality of the foregoing) any rights
of
subrogation or contribution or other right of a surety discharging
its
liability;
|
| 10.9.2 |
in
the event of the insolvency or liquidation of the Vendor the Guarantor
will not prove in any such insolvency or liquidation in competition
with
the Purchaser for any moneys owing to the Guarantor by the Vendor
by
reason of any payment made by the Guarantor
hereunder;
|
| 10.9.3 |
any
security taken by the Guarantor from the Vendor in consideration
of this
guarantee and indemnity together with any moneys received by the
Guarantor
by proving in respect of any claim by the Guarantor in the insolvency
or
liquidation of the Vendor, shall be held in trust absolutely for
the
benefit of the Purchaser for the obligations of the Guarantor
hereunder.
|
-15-
| 10.10 |
The
Guarantor agrees, acknowledges and declares
that:
|
| 10.10.1 |
if
any payment received by the Purchaser in respect of moneys due or
owing to
the Purchaser from the Vendor shall, on the subsequent insolvency
or
liquidation of the Vendor be avoided under any laws relating to insolvency
or liquidation and the amount thereof repaid by the Purchaser, such
payment shall not be considered as discharging or diminishing the
liability of the Guarantor and this clause 10 shall continue to apply
as
if such payment had at all times remained owing by the Vendor to
the
Purchaser and the Guarantor shall indemnify the Purchaser in respect
thereof;
|
| 10.10.2 |
after
demand has been made by the Purchaser hereunder and until the amount
so
demanded has been paid in full:
|
| (A) |
the
Purchaser may take such action as it shall in its own discretion
consider
appropriate against the Vendor or otherwise to recover all sums due
and
payable to it under this Agreement, the Guarantor however remains
liable
under this clause 10 for performance of the Guaranteed
Obligations;
|
| (B) |
for
the purpose of enabling the Purchaser to ▇▇▇ the Vendor or to prove
in its
liquidation or in any similar proceedings for any moneys due and
unpaid by
the Vendor to the Purchaser, the Purchaser may at any time place
and keep
for such time as it may think fit any moneys received hereunder to
the
credit of a securities realised account without any obligation on
the part
of the Purchaser to apply the same or any part thereof in or towards
the
discharge of the debts and liabilities of the Vendor to the Purchaser.
Upon the Purchaser having received all moneys owing or due and payable
or
to become owing or due and payable by the Guarantor and the Vendor
to the
Purchaser under this Agreement any moneys thereafter standing to
the
credit of such securities realised account shall be released to the
Guarantor.
|
| 10.11 |
All
payments under the guarantee and indemnity contained in clauses 10.1
to
10.10 above shall be made without any set-off, counterclaim or equity
and
free from, clear of and without deduction for any Tax whatsoever,
present
or future. If the Guarantor is compelled by the law of any applicable
jurisdiction (or by an order of any regulatory authority in such
jurisdiction) to withhold or deduct at source any sums in respect
of Tax,
duties, levies, imposts or charges from any amount payable to the
Purchaser under the said guarantee and indemnity, or if any such
withholding or deduction is made in respect of any recovery under
the said
guarantee and indemnity, the Guarantor shall pay such additional
amount as
may be necessary to ensure that the amount received by the Purchaser
shall
equal the full amount due to it under the provisions of the said
guarantee
and indemnity and will supply the Purchaser promptly, with evidence
satisfactory to the Purchaser, that the Guarantor has accounted to
the
relevant authority for the sum withheld or
deducted.
|
-16-
| 10.12 |
Any
certificate provided by the Purchaser of the amount due to the Purchaser
under this clause 10 shall be final, binding and conclusive as against
the
Vendor save for any manifest error.
|
| 11. |
GENERAL
|
| 11.1 |
The
Vendor shall use its reasonable endeavours to procure that as from
the
date of this Agreement the Purchaser (and any person authorised by
it)
shall be entitled to conduct such enquiries, investigations and due
diligence reviews of the business, affairs, operations and financial
position of the Group as the Purchaser in its absolute discretion
deems
necessary, desirable or appropriate and the Vendor shall use its
reasonable endeavours to, subject to Clause 11.2 hereof and the Purchaser
executing a confidentiality undertaking in favour of the Company
(if
required by the Company) on substantially the same terms set out
in Clause
11.2, procure that the Purchaser and any persons authorised by it
shall on
giving reasonable prior notice and during normal office hours be
given
full access to the employees, premises, plant, machinery, books of
account, records and documents of the Company and each of its subsidiaries
as the Purchaser may reasonably
request..
|
| 11.2 |
Each
party (including their representatives and authorised persons) shall,
and
shall use their reasonable endeavours to procure the Company that
it
shall, at all times keep confidential and not directly or indirectly
make
or allow any disclosure or use to be made of any information in its
possession or otherwise obtained pursuant to this Agreement relating
to
any other party, the Company and each of its Subsidiaries or to the
existence or subject matter of this Agreement,
except:
|
| 11.2.1 |
to
the extent required by law or any regulatory
body;
|
| 11.2.2 |
where
the information is already disclosed in the public domain otherwise
than
pursuant to or arising from a breach by the parties (including their
representatives and authorised persons) of its confidentiality undertaking
under this Clause; or
|
| 11.2.3 |
with
the consent of the other party (which consent shall not be unreasonably
withheld).
|
| 11.3 |
The
parties agree that (and the Vendor will use all reasonable endeavours
to
procure that the Company will ensure that) any announcement or circular
required to be disclosed or issued by law or any regulatory body
(including the SFC and the Stock Exchange) concerning the subject
matter
of this Agreement, the Options and the HC Construction Option shall
only
be made or issued after consultation with the other parties and after
taking into account the reasonable requirements of the other parties
as to
the contents of such announcement or
circular.
|
| 11.4 |
No
party may assign (whether absolutely or by way of security and whether
in
whole or in part), transfer, mortgage, charge or otherwise dispose
in any
manner whatsoever of the benefit of this Agreement and no party may
sub
contract or delegate in any manner whatsoever its performance under
this
Agreement except with the prior written consent of the other
parties.
|
-17-
| 11.5 |
In
the event of an assignment pursuant to clause 11.4, the original
contracting party remains liable to procure the performance of the
obligations under the agreement by the
assignee.
|
| 11.6 |
Each
of the parties confirms that this Agreement together with the documents
in
the agreed form, represents the entire understanding, and constitutes
the
whole agreement, in relation to its subject matter and supersedes
any
previous agreement between the parties with respect thereto and,
without
prejudice to the generality of the foregoing, excludes any warranty,
condition or other undertaking implied at law or by
custom.
|
| 11.7 |
If
any provision or part of this Agreement is void or unenforceable
due to
any applicable law, it shall be deemed to be deleted and the remaining
provisions of this Agreement shall continue in full force and
effect.
|
| 11.8 |
So
far as it remains to be performed this Agreement shall continue in
full
force and effect after Completion. The rights and remedies of the
parties
shall not be affected by
Completion.
|
| 11.9 |
The
Vendor shall after Completion execute all such deeds and documents
and do
all such things as the Purchaser may reasonably require for perfecting
the
transactions intended to be effected under or pursuant to this Agreement
and for giving the Purchaser the full benefit of the provisions of
this
Agreement, including vesting in the Purchaser the legal and beneficial
title to the Sale Shares.
|
| 11.10 |
Any
payments made by or due from the Vendor or the Guarantor under, or
pursuant to the terms of, this Agreement shall be free and clear
of all
Taxation whatsoever save only for any deductions or withholdings
required
by law.
|
| 11.11 |
If
any deductions or withholdings are required by law, or any payments
made
by or due from the Vendor under this Agreement are liable for Taxation
or
would have been liable for Taxation but for the utilisation of any
Tax
relief in respect of such liability, the Vendor shall be liable to
pay to
the Purchaser such further sums as shall be required to ensure that
the
net amount received by the Purchaser will equal the full amount which
would have been received under the relevant provision of this Agreement
in
the absence of any such deductions withholdings or Taxation
liabilities.
|
| 11.12 |
The
rights and remedies of the parties shall not be affected by the giving
of
any indulgence by any other party or by anything whatsoever except
a
specific waiver or release in writing and any such waiver or release
shall
not prejudice or affect any other rights or remedies of the
Parties.
|
| 11.13 |
This
Agreement may be executed in any number of counterparts and by the
parties
to it on separate counterparts, each of which when executed and delivered
shall be an original but all the counterparts together constitute
one
instrument.
|
| 11.14 |
No
variation of this Agreement (or any of the documents referred to
in it)
shall be valid unless it is in writing (which, for this purpose,
does not
include e mail) and signed by or on behalf of each of the Parties
to this
Agreement.
|
-18-
| 11.15 |
Every
payment payable by the Vendor and the Guarantor under this Agreement
shall
be made in full without any set off or counterclaim howsoever arising
and
shall be free and clear of, and without deduction of, or withholding
for
or on account of, any amount which is due and payable to the Vendor
or the
Guarantor under this Agreement.
|
| 11.16 |
The
parties shall pay their own costs in connection with the preparation
and
negotiation of this Agreement and any matter contemplated by it (including
but not limited to their respective stamp duty, SFC transaction levy
and
Stock Exchange trading fee).
|
| 11.17 |
No
delay or failure by a party to exercise or enforce (in whole or in
part)
any right provided by this Agreement or by law shall operate as a
release
or waiver, or in any way limit that party’s ability to further exercise or
enforce that, or any other, right. A waiver of any breach of any
provision
of this Agreement shall not be effective, or implied, unless that
waiver
is in writing and is signed by the party against whom that waiver
is
claimed.
|
| 11.18 |
The
parties acknowledge and agree that in the event of a default by any
party
in the performance of their respective obligations under this Agreement,
the non-defaulting parties shall have the right to obtain specific
performance of the defaulting party’s obligations. Such remedy to be in
addition to any other remedies provided under this Agreement or at
law.
|
| 12. |
NOTICES
|
| 12.1 |
A
notice (including any approval, consent or other communication) in
connection with this Agreement and the documents referred to in
it:
|
| 12.1.1 |
must
be in writing;
|
| 12.1.2 |
must
be left at the address of the addressee or sent by pre paid first
class
post (airmail if posted to or from a place outside Hong Kong) to
the
address of the addressee or sent by facsimile to the facsimile number
of
the addressee in each case which is specified in this clause in relation
to the party to whom the notice is addressed, and marked for the
attention
of the person so specified, or to such other address or facsimile
number
in Hong Kong and/or marked for the attention of such other person,
as the
relevant party may from time to time specify by notice given in accordance
with this clause.
|
The
relevant details of each party at the date of this Agreement are:
|
Vendor
|
|
|
Address:
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10/F,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇
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Facsimile:
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(▇▇▇)
▇▇▇▇ ▇▇▇▇
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Attention:
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▇▇▇▇▇
▇▇
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-▇▇-
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▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇:
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▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇ Jianguomennei Dajie, Beijing 100005,
PRC
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Facsimile:
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(8610)
6526 0700
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Attention:
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Li
Jianguang
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Purchaser
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Address:
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c/o
22/F Vita Tower, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇
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Facsimile:
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(▇▇▇)
▇▇▇▇ ▇▇▇▇
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Attention:
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Legal
Department
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| 12.1.3 |
for
the avoidance of doubt, must not be sent by electronic
mail.
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| 12.2 |
In
the absence of evidence of earlier receipt, any notice shall take
effect
from the time that it is deemed to be received in accordance with
clause
12.3 below.
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| 12.3 |
Subject
to clause 12.4 below, a notice is deemed to be
received:
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| 12.3.1 |
in
the case of a notice left at the address of the addressee, upon delivery
at that address;
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| 12.3.2 |
in
the case of a posted letter, on the third day after posting or, if
posted
to or from a place outside Hong Kong, the seventh day after posting;
and
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| 12.3.3 |
in
the case of a facsimile, on production of a transmission report from
the
machine from which the facsimile was sent which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient.
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| 12.4 |
A
notice received or deemed to be received in accordance with clause
12.3
above on a day which is not a Business Day or after 5 p.m. on any
Business
Day, according to local time in the place of receipt, shall be deemed
to
be received on the next following Business
Day.
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| 12.5 |
Each
party undertakes to notify the other parties by notice served in
accordance with this clause if the address specified herein is no
longer
an appropriate address for the service of
notices.
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| 13. |
GOVERNING
LAW
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| 13.1 |
This
Agreement shall be governed by, and construed in accordance with,
Hong
Kong law.
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-20-
| 13.2 |
Each
party irrevocably agrees for the benefit of the Purchaser that the
Courts
of Hong Kong shall have non-exclusive jurisdiction in relation to
any
claim, dispute or difference concerning this Agreement and any matter
arising therefrom.
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| 13.3 |
Each
party irrevocably waives any right that it may have to object to
an action
being brought in those Courts, to claim that the action has been
brought
in an inconvenient forum, or to claim that those Courts do not have
jurisdiction.
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| 13.4 |
The
submission to the jurisdiction of the Courts of Hong Kong shall not
(and
shall not be construed so as to) limit the right of the Purchaser
to bring
legal proceedings in any other court of competent jurisdiction including
without limitation the courts having jurisdiction by reason of the
Purchaser’s domicile. Legal proceedings by the Purchaser in any one or
more jurisdictions shall not preclude legal proceedings by it in
any other
jurisdiction, whether by way of substantive action, ancillary relief,
enforcement or otherwise.
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| 13.5 |
The
Purchaser hereby appoints Publishers Representatives Limited, with
correspondence address at 22nd Floor, Vita Tower, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (Attention: Legal Department), as its agent to
accept
service of legal process on its behalf. The Purchaser irrevocably
agrees
that if its process agent ceases to have an address in Hong Kong
or ceases
to act as its process agent, it shall appoint a new process agent
acceptable to the other Parties and will deliver to the other parties
to
this Agreement within 14 days a copy of written acceptance of appointment
by the new process agent.
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| 13.6 |
The
Vendor and the Guarantor hereby irrevocably appoint ▇▇▇▇▇ ▇▇ of IDGVC
Partners at 10/F., Effectual ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇ as their agent to accept service of legal process on their behalf.
The Vendor and the Guarantor irrevocably agree that if their process
agent
ceases to have an address in Hong Kong or ceases to act as their
process
agent, they shall appoint a new process agent acceptable to the other
Parties and will deliver to each of the other parties to this Agreement
within 14 days a copy of written acceptance of appointment by the
new
process agent.
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| 13.7 |
Subject
to clauses 13.5 and 13.6, each party agrees that without preventing
any
other mode of service, any document in an action (including, but
not
limited to, any writ of summons or other originating process or any
third
or other party notice) may be served on any party by being delivered
to or
left for that party at its address for service of notices under clause
12
and each party undertakes to maintain such an address at all times
in Hong
Kong and to notify the other party in advance of any change from
time to
time of the details of such address in accordance with the manner
prescribed for service of notices under clause
12.
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IN
WITNESS
of which
the parties have executed this Agreement on the date first mentioned
above.
-21-
EXECUTION
PAGE
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SIGNED
for and on behalf of
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)
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IDG
TECHNOLOGY
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)
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VENTURE
INVESTMENT, INC.
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)
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in
the presence of:
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)
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SIGNED
for and on behalf of
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)
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TRADE
MEDIA HOLDINGS
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)
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LIMITED
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)
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in
the presence of:
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)
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SIGNED
for and on behalf of
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)
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INTERNATIONAL
DATA
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)
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GROUP,
INC.
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)
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in
the presence of:
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)
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