EXHIBIT 2.3
EQUITY TRANSFER AGREEMENT
EQUITY
TRANSFER AGREEMENT dated as of February 24, 2004 (this
“Agreement”) among the individuals listed on
Schedule A attached hereto (each, a “Transferor”
and, collectively, the “Transferors”), Shenzhen Wang
Xing Technology Co., Ltd. (the “Company”), a limited
liability company organized and existing under the laws of the
People’s Republic of China (“PRC”), and the
individuals listed on Schedule B attached hereto (each, a
“Transferee” and, collectively, the
“Transferees”).
WHEREAS,
the Company is a PRC domestic limited liability company duly
organized and existing under the laws of the PRC and holds an ICP
license issued by the Guangdong Telecommunications Administration
to provide Internet information services;
WHEREAS,
each Transferor owns certain equity interests in the Company set
forth opposite such Transferor’s name on Schedule A
hereto (such interests in the Company, collectively, being referred
to herein as the “Equity Interests”); and
WHEREAS,
for good and valuable consideration, the Transferors have agreed to
transfer their Equity Interests to the Transferees.
NOW,
THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
SECTION
1. Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
“Action”
means any claim, action, suit, litigation, arbitration, inquiry,
proceeding or investigation by or pending before any Governmental
Authority.
“Affiliate”
means, with respect to any specified Person, any other Person that
directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such
specified Person.
“Business
Day” means any day that is not a Saturday, a Sunday or other
day on which banks are required or authorized to close in Hong Kong
or Shenzhen.
“Business
License” means the business license issued to the Company by
the Shenzhen Municipal Administration of Industry and Commerce
reflecting the transfer of the Equity Interests contemplated by
this Agreement.
“control”
(including the terms “controlled by” and “under
common control with”), with respect to the relationship
between or among two or more Persons, means the possession,
directly or indirectly or as trustee, personal representative or
executor, of the power to direct or cause the direction of the
affairs or management of a Person, whether through the ownership of
voting securities, as trustee, personal representative or executor,
by contract, credit arrangement or otherwise.
“Encumbrance”
means any security interest, pledge, hypothecation, mortgage, lien
(including, without limitation, tax liens), violation, charge,
lease, license, encumbrance, adverse claim, preferential
arrangement, restrictive covenant, condition
or
restriction of any kind, including, without limitation, any
restriction on the use, voting, transfer, receipt of income or
other exercise of any attributes of ownership.
“Governmental
Authority” means any PRC national, provincial, local or
similar government, governmental, regulatory or administrative
authority, agency or commission or any court, tribunal, or judicial
or arbitral body.
“Governmental
Order” means any order, writ, judgment, injunction, decree,
stipulation, determination or award entered by or with any
Governmental Authority.
“Law”
means any PRC or non-PRC national, supranational, state,
provincial, local or similar statute, law, ordinance, regulation,
rule, code, order, requirement or rule of law (including, without
limitation, common law).
“Person”
means an individual, corporation, partnership, limited partnership,
limited liability company, syndicate, group, trust, association or
other organization or entity or a government or a political
subdivision, agency or instrumentality of a government.
SECTION
2. Equity Transfer. Subject to the terms and conditions of this
Agreement, at the Closing (as defined below), each Transferor shall
sell and transfer to the Transferees the Equity Interest set forth
opposite such Transferor’s name on Schedule A hereto and
each Transferee shall purchase from the Transferors the Equity
Interest set forth opposite such Transferee’s name on
Schedule B hereto.
SECTION
3. Purchase Price and Payment. The aggregate purchase price for the
Equity Interests (the “Purchase Price”) shall be
Renminbi ten million (RMB10,000,000) yuan in cash. On the Closing
Date (as defined below), each Transferee shall pay to the
Transferors the portion of the Purchase Price set forth opposite
such Transferee’s name on Schedule B hereto in cash in
Renminbi yuan by check or wire transfer in immediately available
funds to an account designated in writing by the
Transferors.
SECTION
4. Closing. Subject to the satisfaction or waiver of the conditions
set forth in Section 9 and Section 10 hereof, the sale
and transfer of the Equity Interests contemplated by this Agreement
shall take place at a closing (the “Closing”) to be
held at the offices of Shearman & Sterling LLP, 2318 China
World Tower Two, 1 Jianguomenwai Avenue, Beijing, PRC on the
Business Day immediately following the date of issuance of the
Business License, or at such other place or at such other time or
on such other date as the parties may agree upon in writing (the
day on which the Closing takes place being the “Closing
Date”).
SECTION
5. Closing Obligations. At the Closing: (a) The Transferors
shall deliver to the Transferees:
(i)
a written waiver, in the form reasonably satisfactory to the
Transferees, of any right of first offer or any right of first
refusal which each of the Transferors may have against each other
with respect to the equity transfers by them to the Transferees
pursuant to Section 2 hereof;
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(ii)
the resolutions of the shareholders’ meeting of the Company
approving (A) the equity transfers by the Transferors to the
Transferees pursuant to Section 2 hereof and (B) the
capital increase set forth in Section 11(b) hereof;
(iii)
the revised Articles of Association of the Company, as filed with
the Shenzhen Municipal Administration of Industry and Commerce,
reflecting (A) the Transferees as the shareholders of the
Company pursuant to Section 2 hereof and (B) the capital
increase set forth in Section 11(b) hereof;
(iv)
the amended Business License, which shall reflect the capital
increase set forth in Section 11(b) hereof;
(v)
the investment certificates issued by the Company to each of the
Transferees reflecting their respective equity interests in the
Company and the amounts of capital contributions
thereto;
(vi)
the revised shareholders register reflecting the Transferees as the
shareholders of the Company pursuant to Section 2
hereof;
(vii)
evidence that all documents required to effect the equity transfers
by the Transferors to the Transferees have been duly filed with the
relevant Governmental Authority;
(viii)
a receipt for the Purchase Price;
(ix)
the capital verification report issued by a certified public
accountant with respect to the capital increase set forth in
Section 11(b) hereof;
(x)
the relevant certificates required to be delivered pursuant to
Section 9.
(b) The
Transferees shall deliver to the Transferors:
(i)
documents evidencing the payment of the Purchase Price to the
Transferors; and
(ii)
the relevant certificates required to be delivered pursuant to
Section 10 hereof.
SECTION
6. Acquisition of Rights. Upon the Closing and as of the Closing
Date, the Transferors shall transfer to the Transferees, and the
Transferees shall acquire from the Transferors, the Equity
Interests and all related right, title and interest of the
Transferors in and to the Company, free from all Encumbrances and
together with all rights and benefits now or hereafter attaching
thereto, including all rights to dividends and other distributions
made after the Closing Date.
SECTION
7. Representations and Warranties of Each Transferor and the
Company. Each of the Transferor and the Company hereby represents
and warrants, jointly and severally, to the Transferees as of the
date hereof as follows:
(a) Authority to
Execute and Perform this Agreement. Each of the Transferor and the
Company has all requisite power and authority to execute this
Agreement and
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to
consummate the transactions contemplated hereby. Each of the
Transferor and the Company has duly executed and delivered this
Agreement, and this Agreement constitutes the legal, valid and
binding obligation of each of the Transferor and the Company,
enforceable against the Transferor and the Company, respectively,
in accordance with its terms.
(b) No Conflict.
The execution and delivery by each of the Transferor and the
Company of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the terms
hereof will not, conflict with, or result in any violation of, or
give rise to a right of termination, cancellation or acceleration
of any obligation or to loss of a material benefit under, or result
in the creation of any Encumbrance upon any of the properties or
assets of the Company under, the Articles of Association of the
Company, any provision of any contract to which the Company is a
party or by which any properties or assets of the Company are bound
(including without limitation, any contract entered into between
the Company and China Mobile Communications Corporation or any of
its Affiliates), or any provision of any Governmental Order or Law
applicable to the Transferor or the Company.
(c) Governmental
Consents and Approvals. Except for the governmental approvals as
set forth in Sections 9(d), (e) and (f) hereof, no
consent of, or registration or filing with, any Governmental
Authority is required to be obtained or made by or with respect to
the Transferor or the Company in connection with the execution,
delivery and performance of this Agreement or the consummation of
the transactions contemplated hereby.
(d) Other
Consents. If a Transferor is married and the Equity Interests of
such Transferor constitute community property or otherwise need
spousal consent or other approval to be legal, valid and binding,
this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, such
Transferor’s spouse, enforceable against such spouse in
accordance with its terms. No trust of which a Transferor is a
trustee requires the consent of any beneficiary to the execution
and delivery of this Agreement or to the consummation of the
transactions contemplated hereby.
(e) Registered
Capital. The registered capital of the Company is RMB2,000,000 and
has been duly and validly authorized and fully paid by the
Transferors. The Equity Interests constitute all of the issued and
outstanding equity of the Company.
(f) The Equity
Interests. Each Transferor is the record and beneficial owner of
the Equity Interests set forth opposite such Transferor’s
name on Schedule A attached hereto, free and clear of any
Encumbrance. None of the Transferors owns, of record or
beneficially, any equity interests or ownership of the Company
other than the Equity Interests. Each of (a) the Equity
Interest Transfer Agreements dated as of June 20, 2003, among
Liu Song, Zhang Shulue and Wang Bin, (b) the Equity Interest
Transfer Agreements dated as of June 20, 2003, among Rao
Wenhua, Diao Duanlin, Li Wei, Zhang Yali, Xie Xin and Jin Zhiqiang,
(c) the Equity Interest Transfer Agreements dated as of
June 20, 2003, between Zhan
