目录 CONTENTS 1. 2. 3. 4. 5. APPLICABLE LAW, JURISDICTION AND DISPUTE RESOLUTION 6. 7. 8. 9. 本投资框架协议(以下简称“协议”)由下述双方于___ 签订: THIS INVESTMENT FRAMEWORK AGREEMENT (“Agreement”) is entered into as on this [Date] 出售方: 投资方:ABC有限公司(以下简称 “乙方”)。 The Investor: LAP WAI INTERNATIONAL LTD. (“Party B”). 鉴于:WHEREAS: A. 香港联港投资有限公司(以下简称“目标公司”)为一家依据香港特别行政区法律成立的公司,甲方拥有目标公司[100%]的股份。 UNION HARBOUR INVESTMENT LIMITED (“Target Company”) is a company established under the laws of Hong Kong Special Administrative Region. Target Company is owned as to [100%] by Party A. B. 目标公司在中国(仅为本协议之目的,中国不包括香港特别行政区、澳门特别行政区和台湾)境内拥有 Target Company owns 90% of equity interests of 因此,根据下面的承诺、约定、条件条款、声明和保证,双方同意如下: NOW THEREFORE in consideration of the promises, covenants, terms, conditions representations and warranties hereinafter set forth, the parties hereto agree as follows: 1. 1.1 Party A and Party B desire to discuss the purchasing by Party B (or through its affiliates) 100% of the equity of Target Company owned by Party A (the “Proposed Transaction”). 1.2 The purpose of this Agreement is to record certain aspects of the Proposed Transaction that the Parties mutually acknowledge and to outline future arrangements to be undertaken by the Parties in relation to the Proposed Transaction. 2. 2.1 In respect of the Proposed Transaction, the Parties anticipate that the main viable terms and conditions are as follows: (a) Party B will, through itself or its affiliates, purchase 100% of the equity of Target Company owned by Party A at a price of RMB70,000,000 (the “Purchase Price”). (b) The first installment of the Purchase Price to be paid by Party B or its affiliates to Party A shall be RMB35,000,000 (“First Installment”). The residual Purchase Price RMB35,000,000 shall be paid after [eighteenth (18th)] month from the completion of the Proposed Transaction. During such period, provided that Party B becomes aware of the existence of undisclosed indebtedness incurred by the Target Company and its PRC Subsidiaries prior to the completion of the Proposed Transaction or Party A breaches any relevant representation and warrant, which cause any loss to the Target Company and its PRC Subsidiaries, Party B shall have the right to deduct the amount of such loss from the residual Purchase Price and hold Party A accountable for any breach liability. 双方应于首期款支付后【三(3)】个工作日内共同完成目标公司股东变更手续。 Both Parties shall complete the procedures for the change of the shareholders of the Target Company within [three (3)] working days after the payment of First Installment. (c) The preconditions for the payments of the First Installment shall include but not limited to the following: (i) Execution of the legal documents to the satisfaction of Party A and Party B, including but not limited to: Share Purchase Agreement with representations and warrants made by the Target Company and Party A and other terms and conditions satisfactory to Party B, shareholders meeting board resolutions and revised Memorandum & Articles of Association of the Target Company and its PRC Subsidiaries; Among which, Party A shall procure and ensure to revise its Article of Association in the forms and contexts to the satisfaction of Party B, including but not limited to the following contexts: The Clause 38 of the Article of Association of regarding the profits distribution shall be revised as “In the first thirty years within the duration of the Joint Venture, 20% of the allocable profits of the Joint Venture shall be donated to Administration Bureau as the construction development foundation for the scenic area; In the latter twenty years within the duration of the Joint Venture, any allocable profits of the Joint Venture shall be distributed per capita among the shareholders without donations.” The Clause 39 of the Article of Association of regarding to the duration of the Joint Venture shall be revised as “Shareholders unanimously agree that the Joint Venture shall submit an application to the approving authority for the extension of the duration of the Joint Venture no less than six months prior to the expiry of the duration.” The Clause 40 of the Article of Association of regarding to the liquidation upon the expiry of the duration of the Joint Venture shall be revised as “The properties of the Joint Venture shall be distributed per capita among the shareholders after the liquidation.” (ii) Completion of legal, financial, assets or other types of due diligence in accordance with the requirements of Party B and the results of such due diligence satisfactory to Party B; (iii) In accordance with the requirements of Party B, the target company and its PRC Subsidiaries have completed all the necessary restructuring for their legal structures and such restructuring has been approved by the relevant governmental authorities; (iv) Party A shall procure and ensure two Chinese shareholders as on the date of the establishment of transfer their land usage rights to (v) Party A shall definitely warrant that the Target Company and its PRC Subsidiaries have no indebtedness that is not recorded in their financial books and management accounts. (vi) Other particulars that is necessary to be completed by Party A, the Target Company and its PRC Subsidiaries after due diligence. 2.2 Both Parties agree to respectively undertake any of its possible taxation liability under the Applicable Law in relation to the Proposed Transaction. 2.3 The Parties further ascertain that if prior to the close of the Proposed Transaction there is any event or circumstance which occurs that might reasonably be expected to have a material adverse effect on the prospects, business, operations or financial condition of Target Company and its PRC Subsidiaries (“Material Adverse Effects”), the Party B shall have the right to revaluate the Purchase Price or unilaterally rescind the Proposed Transaction with no liabilities. For the avoidance of doubt, the Parties hereby confirm that in no event shall there be any increase in the Purchase Price. 2.4 The Material Adverse Effects as defined in Clause 2.2 shall include but not limited to: (a) Politics, macroeconomics and or social environment has been or will be changed significantly; (b) The operation models, the structure of major business of the Target Company and its PRC Subsidiaries has been or will be changed significantly; (c) The industry ranking or the business environment of the Target Company and its PRC Subsidiaries has been or will be changed significantly; (d) After taking into the considerations of all the circumstances, Party B believes that there exist adverse effects, if any, to the Target Company and its PRC Subsidiaries. 2.5 The Party A hereby represents and warrants to the Party B as at the date of this Agreement and as at the Closing Date (to be defined in definitive transaction documents) as follows: (a) The Target Company and its PRC Subsidiaries, with legitimate qualifications, have been duly incorporated, validly existing, duly conducted required annual inspections in accordance with the laws and its registered capital have been fully paid; (b) The Target Company and its PRC Subsidiaries possess all the necessary certifications, approvals and permits to hold its current assets and conduct current business; there exists no Material Adverse Effect or other circumstance in relating to the potential Material Adverse Effect on the equity ownershipvalid existing, financial situation, profits, business forward- looking, reputations or the major business of the Target Company and its PRC Subsidiaries; (c) Except for the business activities conducted within the current due business process, Target Company and its PRC Subsidiaries shall not engage in other business activities, or terminate or change the current business activities; (d) The Target Company and its PRC Subsidiaries shall take all reasonable measures to maintain and protect its assets and shall not conduct assets transfer with valuation exceeding the amount of RMB5,000,000 individually or collectively. Such restriction to the transfer of its assets shall be exempted subject to written confirmation by Party B; (e) The PRC Subsidiaries of the Target Company shall not increase or decrease its registered capital. Except for the equity structure adjustments necessary for the restructuring and public offering, Target Company shall not announce or pay any dividends (whether in end-term or mid-term) or other distributions and shall not issue any share or other securities convertible to its shares or carrying a call option to purchase its shares which might results the issuance of new shares of the Target Company or diluting the equity interest held by Party B in the Target Company; (f) The Target Company and its PRC Subsidiaries shall not conduct, permit to conduct or procure any activity or inactivity which may cause or lead to any breach of the warrants; (g) The Target Company and its PRC Subsidiaries shall inform Party B regarding any announcement or other information of relevant matters known by them which may cause significant impact to the attributes and nature of the business of the Target Company and its PRC Subsidiaries. (h) The Target Company and its PRC Subsidiaries shall provide their monthly and seasonally management reports and audited annual report to Party B. (i) The Target Company and its PRC Subsidiaries shall not change their financial policies or the calendar of its fiscal year; (j) All the financial data and figures regarding the assets, debts and other information of the Target Company and its PRC Subsidiaries, which were shown, provided and transferred to Party B, are legitimate, authentic and effective; (k) The Target Company and its PRC Subsidiaries do not have any undisclosed debt disputes or any potential or undergoing major law suits, legal proceedings, claims or administrative penalty against any party; (l) The Target Company and its PRC Subsidiaries shall assist Party B or other agency designated by Party B to complete due diligence; (m) All the legal and other types of risks of the Target Company and its PRC Subsidiaries prior to the closing shall be borne by the Party A or the actual controller of the Target Company; (n) Except for the currently disclosed matters, the Target Company and its PRC Subsidiaries do not set any mortgage, pledge, debt encumbrance or other secured interest in any nature or conduct any transfer on whole or part of its equity, real-property, assets or intellectual property 2.6 Within twenty (20) days from the execution of this Agreement, Party B shall pay RMB2,000,000 to Party A as the earnest money of this Proposed Transaction (“Earnest Money”); Such Earnest Money shall be automatically converted into the Purchase Price upon the execution and the effectiveness of the final definitive transaction documents of the Proposed Transaction. 2.7 Notwithstanding other Clauses in this Agreement, provided that from the execution of this Agreement till 2.8 After the signing of this Agreement, Party A agrees to grant Party B the right to conduct the legal and finance Due Diligence of Target Company and its PRC Subsidiaries for four (4) months. After the said Due Diligence is finished by Party B, it will be finally confirmed whether the Proposed Transaction contemplated by this Agreement to be continued or not. 2.9 After the said legal and finance Due Diligence is finished by Party B, in the case that the Proposed Transaction contemplated by this Agreement is to be continued according to Party B’s decision, the Parties will further negotiate and execute the final definitive transaction documents. 2.10 甲、乙双方已经就关于拟定交易的时间进度表达成一致,参见附录1。 Both Parties have agreed on the timeline of the Proposed Transaction as set forth in Appendix 1. 3. 收到信息一方应将从披露一方所获得的与本协议所计划的事项有关的一切信息予以保密,并且在未得到披露一方的事先书面同意之前不得向任何人泄露或披露此类信息(向收到一方自己的雇员或关联公司并且仅向需要知道此类信息的雇员或关联公司透露则不在此列)。但是,本条款不适用于(i)收到一方合法拥有的信息,或(ii)在披露一方向收到一方透露之前已被公众所知的信息。上述保密义务应在自本协议签订之日起持续有效三年。在未得到另一方的事先同意之前任何一方不得向第三方宣告或以任何其他方式透露有关本协议所计划的事项。 The receiving Party shall treat as confidential all information obtained by the disclosing Party in relation to the matters contemplated by this Agreement and shall not divulge or disclose such information to any person (except to such receiving Party’s own employees or affiliates and then only to those employees and affiliates who need to know the same) without the disclosing Party’s prior written consent, provided that this clause shall not extend to information which was (i) rightfully in the possession of the receiving Party, or (ii) already public knowledge prior to its disclosure to the receiving Party by the disclosing Party. The foregoing obligations as to confidentiality shall remain effective until three years after the date of this Agreement. Neither Party shall make announcements or any other disclosure to a third party in relation to the matters contemplated by this Agreement without the prior agreement of the other Party. 4. 4.1 The Parties agree that from the date of signing this Agreement until the termination date as set forth in Clause 8.1 of this Agreement, Party A will not enter into negotiations and or agreements and contractual relations regarding any cooperation to discuss or negotiate any other form of cooperation or business relationship which is substantially similar to the Proposed Transaction between the Parties as outlined in this Agreement with any other party than Party B. 4.2 The Parties agree such exclusivity obligation shall not forbid Party B and its affiliate from directly or indirectly conducting any negotiation regarding other investment opportunity, joint venture, strategic partnership or alliance, purchase. 4.3 To the extent that failure of complying Clause 4.1 of this Agreement, without prejudice to any receivable reimbursements under the Applicable Law, Party A shall remunerate Party B all the reasonable costs in relation to the Proposed Transaction, not exceeding [RMB1,000,000]. 5. APPLICABLE LAW, JURISDICTION AND DISPUTE RESOLUTION 5.1 This Agreement is governed by and construed exclusively under Chinese law without regard to conflicts of laws principles. 5.2 All disputes out of or in connection with this Agreement, its completion or its implementation to the extent permissible by law shall be subject to arbitration by [Hong Kong International Arbitration Centre (HKIAC)]. 6. 6.1 Each Party shall bear its own costs arising from the fees of its respective tax advisor, legal advisor and accountant and any other expenses incurred at any time in connection with the negotiations or consummation of this Agreement, whether or not the final transaction documents will be concluded and executed. 7. 7.1 Unless otherwise expressly agreed in writing, all declarations or communications in connection with this Agreement shall only be validly served if they are delivered in writing (email and fax is sufficient) to the following addresses for delivery of the Parties. (a) [地址待填入ADDRESS to be inserted] (b) [地址待填入ADDRESS to be inserted] 7.2 The above addresses and fax numbers shall be applicable for the purpose of service until such time as one of the Parties informs the other in writing of any change thereof. 8. 8.1 This Agreement shall become effective on the date of signing and remain in full force until 8.2 Upon termination of this Agreement, no Party shall have any further obligations under this Agreement except such obligations as have accrued as of the date of such termination or by their express terms survive the expiration or earlier termination of this Agreement. Notwithstanding any termination or expiration of this Agreement, each Party shall remain bound for three (3) years by the provisions of, Clause 3 of this Agreement that shall survive termination or expiration of this Agreement. 9. 本协议以中、英两(2)种文字文本签署,每种文字的原始文本一式两(2)份。如果本协议的中文文本和英文文本之间发生任何冲突,或如果有任何误解或不明确,则以中文文本为准。 This Agreement is executed in English and Chinese in two (2) original counterparts in each language. In the event of any conflict between the English language and Chinese language versions of this Agreement, or in the event of any misunderstanding or ambiguities, the Chinese language version shall prevail. 附录1Appendix 1 签署页EXEUCTION PAGE 鉴此,本协议双方已责成各自按规定程序授权的代表于本协议首页载明之日签署本协议。 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date first above written by their duly authorized representatives. ON BEHALF OF THE VENDOR Authorised Signatory (Official Chop) ON BEHALF OF THE INVESTOR (Official Chop) |
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