-
EQUITY TRANSFER AGREEMENT
This
EQUITY
TRANSFER
AGREEMENT
(this
要翻译成本协议
“
Agreement
”),
is
made
on
April
12
2010 in
Beijing, between:
这份股权转让协议是由以下两方与
2010
年
4
月
12
日达成的。
本股权
转让协议（一下简称“本
协议
”），由一下双方
2010
年
4
月
12
日签署与北京。
ABC HOLDINGS INC.,
a
corporation organized and existing pursuant to the
laws of Barbados with its
legal address
at [ ] ( the
“
Transferor
”);
and
ABC
股份有限公司是一家
依据巴巴多斯法律组织和成立的公司，其法定地址在
XX
。以下
简称为转让
人。
EFG
INTERNATIONAL
TRUST
CO.,
LTD.,
a
limited
liability
company
registered
with
the
Harbin
Administration of Industry and
Commercial with its legal address at [ ], PRC (the
“
Transferee
”)
.
EFG
国际信托有限责任公司
，是一家在哈尔滨工商局注册的有限责任公司，其法定地址在
XX
，以下简
称为受让人。
Transferor and Transferee may be
collectively
referred to as the
“
Parties
” and individually
as a “
Party
”.
RECITALS
WHEREAS
,
鉴于
Jinan [HIJ] Real Estate
Developing Co., Ltd.
([]
置业有限公司
)
(the “
Company
”)
is a
cooperative joint
venture company established by Transferor and
Transferee in accordance with the
Joint
Venture Contract and the Articles of Association
signed by the Parties. Transferor holds 50% of
the equity
interest
股权
in the Company.
WHEREAS
,
Transferor
desires
to
sell
to
Transferee,
and
Transferee
desires
to
purchase
from
Transferor
the
equity
interest
which
Transferor
holds
in
the
Company
in
accordance
with
the
terms
and
conditions set out hereunder (the
“
Transaction
”)
.
1
Interpretation
1.1
Definitions.
Unless
otherwise
defined
in
this
Agreement,
capitalized
terms
used
in
the
English version of this
Agreement and the terms in bold used in the
Chinese version of
this Agreement shall
have the following meanings:
“
AIC
”
means
Jinan
Administration
for
Industry
and
Commerce
or
its
competent
local
c
ounterpart.
及其相关分支机构。
指济南是工商局或其相关分支机构
“
Business
Day
”
means any day except
Saturday, Sunday and legal holidays in the PRC.
“
Closing
”
交割
has the meaning ascribed
thereto in Section 4.
“
Closing Date
”
means the date on which the Closing shall take
place.
“
Considera
tion
”
has the meaning
ascribed thereto in Section 3.1.
1
“
En
cumbrance
”
产权负担，权利负担，权益负担。
means
any
claim,
charge
特别担保
,
easement, encumbrance, lease, covenant,
security interest (including, without limitation,
any
mortgage,
pledge
or
lien
抵押，质押和留置
),
option,
rights
of
others,
restriction
(whether on voting, sale, transfer,
disposition or otherwise), or cloud on
title
产权不清晰
or
any
title
defect,
whether
imposed
by
agreement,
understanding
理解
,
law,
equity
or
otherwise,
but
excluding
any
restriction
on
transfer
imposed
pursuant
to
the
articles
of
association of the Company..
指任何不论是由合同、协议、法律、衡平法或是其他施加的主张、指控、地役权、留置
权、租赁、合约、担保利益
基于。。。。产生的
“
Transferred
Equity
” means the
50% of
equity interest of the Company which Transferor
holds.
“
Material
Adverse
Change
”
means
any
progr
ess
or
change
which
has
a
material
adverse
effect
on
the
Company
and
results
in
breach,
impossibility
of
performance
or
meaninglessness to continue the
performance of this Agreement.
“
Examination
and
Approval
Authorities
”
means
Jinan
Municipal
Foreign
Trade
and
Economic Cooperation Bureau, which is
competent to approve this Agreement.
“
SAFE
”
means
the
State
Administration
of
Foreign
Exchange
or
its
competent
local
counterpart.
相关的地方分支机构
“
Escrow
Agreement
”
means
the
escrow
agreement
to
be
entered
into
among
Transferor,
Transferee
and
Hana
bank
韩亚银行
,
Harbin
Branch
(the
“
Escrow
Bank
”)
within
60
days
following
the
execution
签署
date
of
this
Agreement,
under
which
an
escrow
account
will
be
opened
(the
“
Escrow
Account
”
)
within
the
Escrow
Bank
for
holding
the payments due under this Agreement.
在托管协议项下，而不是本协议项下。
托管协议
“
Transfer Notice
”
have the meaning ascribed under Escrow Agreement.
“
PRC
”
or
“
China
”
means
the
People’s
Republic
of
China
,
solely
for
purposes
of
this
Agreement, excluding Hong Kong, the
Macau Special Administrative Region and Taiwan.
中国
“
Effective
Date
”
means
the
date
on
which
this
Agreement
is
approved
by
the
Examination and Approval Authorities.
2
Sale and Purchase of
equity interest
2.1
Subject
to
根据
the
terms and
conditions
hereof,
at
the
Closing,
Transferor
shall
sell
to
Transferee, and Transferee shall
purchase from Transferor the Transferred Equity
free of
any Encumbrance.
无权利负担状态下的被转让股权。
All
the
obligations,
rights
and
interests
in
connection
with
the
Transferred
Equity,
including but not
limited the seats on the board of
directors
董事会席位
, voting
rights
投票
2.2
2
权
and rights of
allocation of dividends shall be transferred from
Transferor to Transferee
as of the
Closing Date.
3
Consideration and Payment
3.1
The Parties agree that
the consideration of Transferor
’s sale
of
the Transferred Equity is
RMB225,224,179
(the
“
Consideration
”
or “
Equity Transfer
Price
”
). Transferee shall
pay
the
Consideration
in
USD
of
RMB
equivalent
与人民
币等值的美元
.
Unless
otherwise
agreed
in
writing,
the
Equity
Transfer
Price
shall
be
definite,
from
signing
of
this
Agreement
till
the
Closing
Date,
the
profit
and
loss
incurred
by
the
Company
during
its
normal
operation shall not be considered into the Equity
Transfer Price; and any change
in the
operational and
financial status of the
Company shall not constitute a reason for
either
Party
not
to
pay,
transfer
or
assign
all
of
any
Equity
Transfer
Price
or
the
Transferred Equity,
or
to request an increase or
reduction, early or
late
payment of the
Equity Transfer Price,
or to change any terms under this Agreement.
The Transferee shall pay the Transferor
the Equity Transfer Price at the time as set out
below:
(a)
3.2
在。。。之前
before 30 April 2011,
the Transferee shall pay RMB60,000,000 to the
Transferor;
before 30 June
2011, the Transferee shall pay RMB65,000,000 to
the Transferor;
before 31 August 2011,
the Transferee shall pay RMB85,000,000 to the
Transferor;
and
before
31
December
2011,
the
Transferee
shall
pay
the
remaining
of
RMB15,224,179 to the Transferor.
(b)
(c)
(d)
3.3
To advance the
Transaction, Transferee shall pay the Transferor
the Consideration using
an
agreed
mechanism
of
Escrow
Account
according
to
Escrow
Agreement
and
the
Consideration shall be paid into the
Escrow Account in two installments in the
following
way:
(a)
RMB125,224,179 shall be paid to the
Escrow Account no latter than May 30, 2010;
and
RMB100,000,000
shall
be
paid
to
the
Escrow
Account
no
latter
than
August
4,
2010.
(b)
After
this
Agreement
being
approved
by
the
Examination
and
Approval
Authorities
and
SAFE and a Transfer Notice has been
given by Transferor to Escrow Bank as provided
under Escrow Agreement, then Transferee
shall cause
促使
the Escrow
Bank to convert
into
US
dollars
based
on
the
rate
of
the
Escrow
Bank
and
pay
the
consideration
to
Transferor
according
to
Section
3.2
within
3
days
针
对
payde
的
规
定
following
Transferor
’
s
Transfer Notices to the offshore account of
Transferor as set out in Section
3.8
below. The relevant conversion commission charged
by bank shall be borne by the
3
Transferee.
3.4
The
Parities
agree
that,
for
avoidance
of
doubt
为避免疑虑
歧义
,
Transferee
shall
be
obliged
to pay the Consideration in full without the right
to make any set-off, deduction or
withholding (other than taxes or fees
levied on the transferor if and to the extent
required
by the relevant tax
authorities or SAFE, or deducted pursuant to the
board resolution of
the Company or
otherwise agreed in writing by the Parties;)
notwithstanding the above
said
,
Transferee
shall
undertake
that
in
no
case
shall
any
tax
or
fees
be
imposed
on
Transferor
’s
equity
injection
into
the
Company.
In
the
event
tax
authorities
or
other
government bodies
require
Transferee to
withhold taxes or fees from the
Consideration
payable
to
Transferor,
Transferee
may
withhold
relevant
amount
from
Consideration
in
accordance with the
requirement of the tax demand or other similar
documents, and pay
the
withheld
amount
to
the
tax
authorities
or
other
government
bodies,
provided
that
Transferee shall
provide Transferor with the tax return or other
similar documents within
thirty (30)
days after the date of payment to evidence the
withholding tax has been paid to
the
tax authorities or other government bodies.
Notwithstanding the above said,
Transferee shall undertake to gross-
up
承担
补足
any tax
that
may be imposed on
Transferor
’
s equity
injection of RMB125 million which represents
part of the Equity Transfer Price. If,
for any reason, such tax is levied upon Transferor
E
or
its
assignee
代理人，受让人、继受人
,
Transferee
shall
not
deduct
such
tax
from
the
Equity Transfer Price but rather
promptly pay it from its own resources so that the
Equity
Transfer Price shall remain
unchanged
3.5
If Transferee
fails to make payment as stipulated under Section
3.2, Transferor is entitled
to
overdue
interest
from
the
day
on
which
the
payment
is
due
till
the
date
when
full
outstanding amount is paid to and
received by Transferor at an interest rate of
1
‰
daily.
If
for
any
reason
Transferee
fails
to
fully
cooperate
with
the
Examination
and
Approval
Authorities and SAFE which cause Equity
Transfer Price cannot be paid on time pursuant
to
this
Agreement,
and/or
pay
or
cause
the
Escrow
Bank
to
remit
汇款
any
or
all
the
Equity
Transfer
Price
and
any
interest
accumulated
thereon
within
5
days
following
approval of SAFE
and the Transfer Notice given by Transferor to the
Escrow Bank, such
failure shall be
regarded as material breach (the “Material
Breach”)
under this Agreement,
then
without
derogating
from
any
other
remedy
available
to
Transferor
under
any
agreement, applicable
law
or
otherwise, Transferor
has following
options (i) continue to
perform
this
Agreement
and
Transferee
is
still
obliged
to
pay
the
Equity
Transfer
Price
and overdue interest; or (ii) to
terminate this Agreement, while all the payments
made to
Escrow
Account
shall
be
deemed
as
liquidated
damage
of
Transferor.
Transferor
shall
issue
a
Default
Notice
according
to
Escrow
Agreement
and
Escrow
Bank
will
release
above
liquidated
damage
to
an
account
designated
by
Transferor.
Additionally,
Transferee
shall pay RMB180 million to Transferor as
compensation to its losses.
Notwithstanding Sections 3.5 and 3.6
above, the Parties agree that upon the occurrence
of Material Breach, Transferor is
entitled to assign it’s creditor's rights to all
or any part of
the
Equity
Transfer
Price,
including
any
interest
accumulated
thereon
under
this
Agreement
to
any
third
party.
Once
Transferor
exercise
its
assigning
right
and
notify
Transferee as such, relevant creditor's
right shall be transferred and vested to such
third
3.6
3.7
4
party
assignee
which
shall
have
good,
valid
and
marketable
title
thereto.
On
the
occurrence of Creditor Right Transfer,
Transferee’s payment
obligation owed to
such third
party assignee shall become
immediately due and payable, and Transferee is
obliged to
make relevant payment as it
is notified by such third party assignee.
Upon
full
payment
by
Transferee
of
the
Equity
Transfer
Price
股
权
转
让
价
格
to
Transferor’
s
offshore
account
or
to
the
third
party
assignee
of
Transferor,
Transferor
is
obliged
to
cooperate
with
Transferee
to
complete
the
equity
transfer
under
this
Agreement.
3.8
The
details
of
the
bank
account
designated
by
Transferor
are
as
follows,
unless
Transferor delivers a written notice to
Transferee as to any change to the account:
Name of account: E.F.E. (BARBADOS)
HOLDINGS INC.
Number of account: 808
439962 274
Bank: The Hong Kong and
Shanghai Banking Incorporation Limited
Bank Address: No. 1, Queen Road,
Central Hong Kong.
4
Closing
4.1
The
consummation
of
the
transfer
of
equity
interest
under
Section
2
hereunder
(the
“
Closing
”)
shall
occur
within
three
(3)
Business
Days
after
occurrence
of
all
of
the
following:
(a)
this
Agreement
has
been
executed
by
the
duly
authorized
representatives
of
the
Parties;
all representations and
warranties given by
Transferee under
this
Agreement
are
true, accurate, complete and not
misleading; on or before the Closing Transferee
has fulfilled or complied with all the
undertakings, agreements and obligations as
required by this Agreement;
the
Company
has
approved
through
the
resolutions
of
the
board
of
directors
the
transfer of the shares of the Company;
this Agreement have been approved by
the Examination and Approval Authorities;
and
Transferee has paid the
Consideration in full in the offshore account of
Transferor
along with any overdue fee
and liquidated damages.
(b)
(c)
(d)
(e)
4.2
Transferor and
Transferee shall use any reasonable effort to
procure that the conditions
set out in
Section 4.1 be satisfied as early as possible.
Upon request of the other Party,
the
Party shall collaborate in a timely manner and
provide all necessary information and
assistance
as
required
by
the
Examination
and
Approval
Authorities,
AIC,
SAFE
and
other
government
bodies.
To
the
extent
possible,
Transferor
shall
be
entitled
to
waive
5