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becomes, illegal, invalid or unenforceable in any respect, this shall not affect or impair the liability to the other under this Agreement.
1.3 The headings in this Agreement do not affect its interpretation.
2 SALE AND PURCHASE
2.1 Seller shall sell or procure the sale with full title guarantee and Purchaser shall buy the
Target Shares and each right accruing or attaching to the Target Shares (now or at any time hereafter) and the Target Shares shall be sold free from all Encumbrances.
2.2 The Seller waives all rights of pre-emption over any of the Target Shares conferred on it
by the articles of association of Company.
2.3 The total price payable on the date of Closing by the Purchaser to the Seller for the
Target Shares shall be USD [] million (the “Purchase Price”)
3 CONDITIONS PRECEDENT TO THE CLOSING
3.1 There shall have been no Material Adverse Event with respect to the Company since the
date of this Agreement and no change to the current laws or regulations of the Law that would result in such Material Adverse Effect;
3.2 the transactions contemplated by this Agreement have been duly approved by the
resolutions by the shareholders and the board of the Seller;
3.3 The representations and Warranties made by the Seller and the Guarantor in Schedule 2
herein shall be true and correct and complete in all respects when made, and shall be true and correct and complete in all respects as of the date of the Closing with the same force and effect as if they had been made on and as of such date, subject to changes contemplated by this Agreement.
3.4 Amendment to the Restated Articles;
3.5 Negotiation and execution of the shareholders agreement satisfactory to the Purchaser;
3.6 [any other closing condition precedent arising out of the Purchaser’s due diligence].
4 CLOSING
4.1 Upon the fulfillment or waiver of the conditions as set out in Section 3 above, the
Closing shall take place on the next business day, at the specified office of the Company or on such other date and at such other time and place that the Parties hereto may mutually agree upon.
4.2 As of the date of Closing, Seller shall sell, transfer or cause such transfer and assign (or
cause the assignment) all right, title and interest in the Target Shares and in to the Purchaser, on the terms and conditions set forth in this Agreement, so that upon Closing, Purchaser shall have full and exclusive legal and beneficial right, title and interest in the Target Shares.
4.3 For the purpose as set forth in Clause 4.2, the Seller shall deliver (or cause to be
delivered) to the Purchaser: 4.3.1 duly executed transfers into the name of the Purchaser or its nominee in respect
of all of the Target Shares, together with the related share certificates evidencing the title and ownership of such shares;
4.3.2 all such other documents (including any necessary waivers of pre-emption
rights or other consents) as may be required to enable the Purchaser and/or its nominee to be registered as the holder(s) of the Target Shares;
4.3.3 a copy of a resolution of the board of directors (certified by a duly appointed
officer as true and correct) of the Seller, authorising the execution of and the performance by the Seller of its obligations under this Agreement and each of the other documents to be executed by the Seller;
4.4 Against compliance by the Seller of its obligations under Clause 4.3, the Purchaser shall
pay to the Seller the total Purchase Price by an unconditional irrevocable bank transfer order duly signed and sealed by the Purchaser as of the date of Closing or such later date as may be agreed between the Seller and the Purchaser. If the Purchaser fails to pay the Purchase Price in full as of the date of Closing, except as otherwise agreed by the Parties, the Seller shall be entitled to (a) withdraw the Closing and the Closing deliverables contemplated under this Agreement, (b) terminate this Agreement. 5 REPURCHASE AT MATURITY
Unless previously redeemed or purchased as provided herein or otherwise agreed by the Parties, the Seller or the Guarantor shall repurchase, upon the written notice of the
Purchaser, the Target Shares at an amount equal to 25% internal rate of return per year of the Purchase Price, inclusive of all interests paid, on the [third] anniversary from the date of Closing (the “Maturity Date”), provided that the HKIPO does not occur by the Maturity Date.
6 RIGHT OF CO-SALE
In the event that the Seller propose to transfer its Ordinary Shares to any third independent purchaser from date of the Closing, the Selling Shareholder shall promptly
7
7.1 Each of the Guarantor and Seller warrant to the Purchaser, and Purchaser warrants to the
Seller, that each of the Warranties made by it is true, accurate, complete and not misleading at the date of Closing. For this purpose only, where in a Warranty there is an express or implied reference to the date of this Agreement, that reference is to be construed as a reference to the date of Closing.
7.2 Each of the Parties acknowledges that the other Party is entering into this Agreement in
reliance on each Warranty which has also been given as a representation and with the intention of inducing the other Party to enter into this Agreement.
7.3 The rights and benefits of or under the Warranties may be assigned (together with any
cause of action arising in connection with any Warranty) by the Parties to their successors in title.
7.4 The rights and benefits of or under the Warranties may be assigned (together with any
cause of action arising in connection with any Warranty) by the Parties to their successors in title or to any member of their respective Affiliates.
8 GUARANTEE
8.1 In consideration of the Purchaser entering into this Agreement the Guarantor hereby
unconditionally guarantees to the Purchaser and its successors, transferees and assigns the due and punctual performance and observance by the Seller of all the Seller's obligations and the punctual discharge by the Seller of all the Seller's liabilities to the Purchaser under this Agreement. The forgoing is limited, however, to the Seller's due formation, due authorization and execution of the Agreement by the Seller and delivery to the Purchaser of a valid and unencumbered title to the Target Shares.
9 CONFIDENTIALITY AND NON-DISCLOSURE
9.1 The terms and conditions of this Agreement and of each document referred herein, and
schedules attached to such documents (collectively, the “Financing Terms”), including their existence, shall be considered confidential information and shall not be disclosed by any party hereto to any third party except in accordance with the clauses set forth below; provided that such confidential information shall not include any information that is in the public domain other than caused by the breach of the confidentiality obligations hereunder.
give written notice (the “Transfer Notice”) to the Purchaser, and the Purchaser shall have the right to participate in such transfer at the same price and subject to the same terms and conditions as set forth in the Transfer Notice.
WARRANTIES
9.2 Any press release issued by the Seller or the Purchaser shall not disclose any of the
Financing Terms. No other announcement regarding any of the Financing Terms in a press release, conference, advertisement, announcement, professional or trade publication, mass marketing materials or otherwise to the general public may be made without the prior written consent of the Seller and the Purchaser.
9.3 Notwithstanding the foregoing, any party may disclose any of the Financing Terms to its
current or bona fide prospective investors, employees, investment bankers, lenders, partners, accountants and attorneys, in each case only where such persons or entities are under appropriate nondisclosure obligations. In addition to and without limiting the generality of the foregoing, the Seller shall be entitled to disclose the Financing Terms only for the purposes of future financing activities of the Company to potential investors, their fund manager, other funds managed by their fund manager and their respective auditors, counsel, directors, officers, employees, shareholders or investors.
9.4 In the event that any party is requested or becomes legally compelled (including without
limitation, pursuant to securities Laws) to disclose the existence of any of the Financing Terms in contravention of the provisions of this Clause, such party shall not be required to notify the other parties.
9.5 The provisions of this Clause shall be in addition to, and not in substitution for, the
provisions of any separate non-disclosure agreement executed by any of the parties with respect to the transactions contemplated hereby.
9.6 All notices required under this Agreement shall be made pursuant to Clause 13.10 of this
Agreement.
10 COSTS
10.1 Except where this Agreement provides otherwise, each Party shall pay its own costs
relating to the negotiation, preparation, execution and performance by it of this Agreement and of each document referred to in it.
11 INDEMNITY
11.1 The Seller and the Guarantor hereby, jointly and severally, indemnify and hold harmless
the Purchaser and the directors, officers, employees, Affiliates, agents and assigns of the Subscriber (each, an “Indemnitee”), against any and all Indemnifiable Loss incurred by such Indemnitee, as a result of, or based upon or arising from any inaccuracy in, breach of, or nonperformance of any of the representations, Warranties, covenants or agreements made by the Seller and the Guarantor in or pursuant to this Agreement (the “Indemnifiable Event”), “Indemnifiable Loss” means, with respect to any Indemnitee, any action, cost, damage, disbursement, expense, liability, loss, deficiency, diminution in value, obligation, penalty or settlement of any kind or nature, including, but not limited