英文股權(quán)轉(zhuǎn)讓協(xié)議EquityTransferAgreement

1、equity transfer agreementthis equity transfer agreement (this要翻譯成本協(xié)議 “agreement”), is made on april 12 2010 in beijing, between:這份股權(quán)轉(zhuǎn)讓協(xié)議是由以下兩方與2010年4月12日達(dá)成的。本股權(quán)轉(zhuǎn)讓協(xié)議（一下簡(jiǎn)稱“本協(xié)議”），由一下雙方2010年4月12日簽署與北京。abc holdings inc., a corporation organized and existing pursuant to the laws of barbados with its legal

2、 address at ( the “transferor”); and abc股份有限公司是一家依據(jù)巴巴多斯法律組織和成立的公司，其法定地址在xx。以下簡(jiǎn)稱為轉(zhuǎn)讓人。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國(guó)際信托有限責(zé)任公司，是一家在哈爾濱工商局注冊(cè)的有限責(zé)任公

3、司，其法定地址在xx，以下簡(jiǎn)稱為受讓人。transferor and transferee may be collectively referred to as the “parties” and individually as a “party”.recitalswhereas,鑒于 jinan hij real estate developing co., ltd. (置業(yè)有限公司) (the “company”) is a cooperative joint venture company established by transferor and transferee in accor

4、dance with the joint venture contract and the articles of association signed by the parties. transferor holds 50% of the equity interest股權(quán) in the company.whereas, transferor desires to sell to transferee, and transferee desires to purchase from transferor the equity interest which transferor holds i

5、n the company in accordance with the terms and conditions set out hereunder (the “transaction”). 1 interpretation1.1 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 agre

6、ement shall have the following meanings: “aic” means jinan administration for industry and commerce or its competent local counterpart.及其相關(guān)分支機(jī)構(gòu)。及其下屬地方單位。指濟(jì)南是工商局或其相關(guān)分支機(jī)構(gòu)“business day” means any day except saturday, sunday and legal holidays in the prc.“closing” 交割收盤has the meaning ascribed thereto in

7、 section 4.“closing date” means the date on which the closing shall take place.“consideration” has the meaning ascribed thereto in section 3.1. “encumbrance”產(chǎn)權(quán)負(fù)擔(dān)，權(quán)利負(fù)擔(dān)，權(quán)益負(fù)擔(dān)。 means any claim, charge特別擔(dān)保, easement, encumbrance, lease, covenant, security interest (including, without limitation, any mort

8、gage, pledge or lien抵押，質(zhì)押和留置), option, rights of others, restriction (whether on voting, sale, transfer, disposition or otherwise), or cloud on title產(chǎn)權(quán)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 p

9、ursuant to the articles of association of the company. 指任何不論是由合同、協(xié)議、法律、衡平法或是其他施加的主張、指控、地役權(quán)、留置權(quán)、租賃、合約、擔(dān)保利益基于。產(chǎn)生的“transferred equity” means the 50% of equity interest of the company which transferor holds. “material adverse change” means any progress or change which has a material adverse effect on th

10、e 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 st

11、ate administration of foreign exchange or its competent local counterpart. 相關(guān)的地方分支機(jī)構(gòu) “escrow agreement” means the escrow agreement to be entered into among transferor, transferee and hana bank韓亞銀行, harbin branch (the “escrow bank”) within 60 days following the execution簽署 date of this agreement, und

12、er which an escrow account will be opened (the “escrow account”) within the escrow bank for holding the payments due under this agreement. 在托管協(xié)議項(xiàng)下，而不是本協(xié)議項(xiàng)下。托管協(xié)議“transfer notice” have the meaning ascribed under escrow agreement. “prc” or “china” means the peoples republic of china, solely for purpose

13、s of this agreement, excluding hong kong, the macau special administrative region and taiwan.中國(guó) “effective date” means the date on which this agreement is approved by the examination and approval authorities.2 sale and purchase of equity interest2.1 subject to根據(jù) the terms and conditions hereof, at t

14、he closing, transferor shall sell to transferee, and transferee shall purchase from transferor the transferred equity free of any encumbrance. 無(wú)權(quán)利負(fù)擔(dān)狀態(tài)下的被轉(zhuǎn)讓股權(quán)。2.2 all the obligations, rights and interests in connection with the transferred equity, including but not limited the seats on the board of d

15、irectors董事會(huì)席位, voting rights投票權(quán) and rights of allocation of dividends shall be transferred from transferor to transferee as of the closing date.3 consideration and payment3.1 the parties agree that the consideration of transferors sale of the transferred equity is rmb225,224,179the previous price of

16、 rmb275,000,000 minus efes capital injection in 2008 of rmb49,775,820.87 (the “consideration” or “equity transfer price”). transferee shall pay the consideration in usd of rmb equivalent與人民幣等值的美元. unless otherwise agreed in writing, the equity transfer price shall be definite, from signing of this a

17、greement 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

18、 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.3.2 the transferee shall pay the transferor the equity transfer price at the time as set out bel

19、ow:(a) 在。之前before 30 april 2011, the transferee shall pay rmb60,000,000 to the transferor;(b) before 30 june 2011, the transferee shall pay rmb65,000,000 to the transferor; (c) before 31 august 2011, the transferee shall pay rmb85,000,000 to the transferor; and(d) before 31 december 2011, the transf

20、eree shall pay the remaining of rmb15,224,179 to the transferor.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 installme

21、nts in the following way:(a) rmb125,224,179 shall be paid to the escrow account no latter than may 30, 2010; and(b) rmb100,000,000 shall be paid to the escrow account no latter than august 4, 2010.after this agreement being approved by the examination and approval authorities and safe and a transfer

22、 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針對(duì)payde 的規(guī)定 following tr

23、ansferors 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 transferee.3.4 the parities agree that, for avoidance of doubt為避免疑慮 歧義, transferee shall be obliged to pay the consideration in f

24、ull 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;) no

25、twithstanding the above said , transferee shall undertake that in no case shall any tax or fees be imposed on transferors 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 transfer

26、or, 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 othe

27、r 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承擔(dān) 補(bǔ)足 any tax that may be imposed on transferors equity injecti

28、on 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，受讓人、繼受人, transferee shall not deduct such tax from the equity transfer price but rather promptly pay it from its own resources so that the equity trans

29、fer price shall remain unchanged3.5 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

30、. 3.6 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匯款 any or all the equity transfer price and any interest

31、 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 an

32、y 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

33、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. 3.7 no

34、twithstanding sections 3.5 and 3.6 above, the parties agree that upon the occurrence of material breach, transferor is entitled to assign its creditors rights to all or any part of the equity transfer price, including any interest accumulated thereon under this agreement to any third party. once tra

35、nsferor exercise its assigning right and notify transferee as such, relevant creditors right shall be transferred and vested to such third party assignee which shall have good, valid and marketable title thereto. on the occurrence of creditor right transfer, transferees payment obligation owed to su

36、ch 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股權(quán)轉(zhuǎn)讓價(jià)格 to transferors offshore account or to the third party assignee of tr

37、ansferor, 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.

38、f.e. (barbados) holdings inc.number of account: 808 439962 274bank: the hong kong and shanghai banking incorporation limitedbank address: no. 1, queen road, central hong kong. 4 closing4.1 the consummation of the transfer of equity interest under section 2 hereunder (the “closing”) shall occur withi

39、n 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;(b) all representations and warranties given by transferee under this agreement are true, accurate, complete and not misleading; on or before

40、 the closing transferee has fulfilled or complied with all the undertakings, agreements and obligations as required by this agreement;(c) the company has approved through the resolutions of the board of directors the transfer of the shares of the company;(d) this agreement have been approved by the

41、examination and approval authorities; and (e) transferee has paid the consideration in full in the offshore account of transferor along with any overdue fee and liquidated damages. 4.2 transferor and transferee shall use any reasonable effort to procure that the conditions set out in section 4.1 be

42、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 shal

43、l be entitled to waive any of the conditions stipulated under section 4.1 above.4.3 within five (5) business days after occurrence of all of the events as set out in section 4.1 above, transferor shall proactively cooperate with transferee to go through the formalities to consummate the transfer of

44、the transferred equity, including without limitation the change in aic registration, amendment to articles of association, removal of board members and officials, handover, and any other relevant formalities. 5 representations and warranties of transferor5.1 transferor represents and warrants to tra

45、nsferee as of the date hereof and as of the closing date:(a) transferor is a company duly organized, validly existing and in good standing under the laws of barbados. transferor has all requisite corporate power and authority to execute and deliver this agreement and the other agreements and instrum

46、ents contemplated hereby to which transferor is a party and consummate the transaction contemplated hereunder. (b) transferor has full title to and legal and effective entitlement to dispose of the title to the transferred equity, and has been registered as the shareholder of the company according t

47、o applicable laws. 5.2 if any of the representations and warranties by transferor under section 5 becomes inaccurate or untrue, then such event constitutes a breach of this agreement. the breaching party shall compensate the non-breaching party for any actual losses and damages suffered by the non-b

48、reaching party as a result of such breach.6 representations and warranties of聲明與保證 transferee6.1 transferee represents and warrants to transferor that as of the date hereof and as of the closing:(a) transferee is duly organized適當(dāng)組建, validly existing有效存續(xù) and in good standing處于良好運(yùn)營(yíng)狀態(tài)聲譽(yù)良好,資格完好的 under t

49、he laws of the prc and has all requisite必備的 power and authority to execute and deliver簽署和提交 this agreement and the other transaction documents, to perform each of its obligations hereunder and under any agreement 計(jì)劃預(yù)期contemplated hereunder在本協(xié)議上 to which it is a party with effort to consummate完成 the

50、transaction. (b) all corporate action necessary on the part of transferee has been taken for the authorization, execution, and delivery by transferee of this agreement and the performance by transferee of its obligations hereunder. this agreement constitutes the valid and legally binding obligation

51、of transferee and enforceable in accordance with its terms as of the effective date.(c)the execution, delivery交付, and performance by transferee of this agreement does not require the consent of any third party and will not result in any violation of, be in conflict with, or constitute a default unde

52、r, with or without the passage of time or the giving of notice且不管時(shí)間推移或者是否通知, any provision of its constitutional documents as in effect at the date hereof, any applicable law, or any contract or obligation to which it is a party or by which it is bound. (d)transferee represents that it has sufficien

53、t funds from legitimate sources to pay the consideration for the transfer of the equity interest under this agreement.受讓方陳述其有足夠的來(lái)源合法的資金支付本協(xié)議項(xiàng)下的股權(quán)轉(zhuǎn)讓的對(duì)價(jià)。(e)transferee represents that as a controlling shareholder of the company, it is fully familiar with the company, its activities, business and operat

54、ions, and accordingly is acquiring the transferred equity on an “as is” basis. 按現(xiàn)狀出售6.2 if any of the representations and warranties by transferee under section 6 becomes inaccurate or untrue, then such event constitutes a breach of this agreement. the breaching party shall compensate the non-breach

55、ing party for any actual losses and damages suffered by the non-breaching party as a result of such breach. 7 covenants and undertakings擔(dān)保7.1 covenants and undertaking of the transferee(a) except as otherwise specifically permitted by this agreement, from the date hereof to the closing自本協(xié)議簽署日至交割日, t

56、ransferee shall use its best efforts盡最大努力 to cause the company (including causing the directors appointed by it to vote to approve) to carry on its business in the ordinary course of business consistent with past practice and in substantially the same manner as conducted prior to the date hereof and

57、 use best efforts to preserve its present business, operations, organization and goodwill商譽(yù) and its relationships with customers and others having business dealings therewith, and shall not cause any material adverse change重大不利變化 to the business and operation of company. (b) from the execution of th

58、is agreement till the closing, transferee shall not, and shall cause the company not to, take any action without the prior written consent of transferor, which (i) would render 給予any representation or warranty in this agreement untrue in any material respect, or (ii) could result in any covenant con

59、tained in this agreement becoming incapable of performance. transferee shall promptly advise通知告知 the transferor of any action or event of which it becomes aware which could have the effect of making any such representations or warranties incorrect in any material respect if given with reference to考慮到 facts and circumstances then介時(shí) existing or which has the effect of rendering any such covenants i