合同结构设计制作及谈判技能.docx

AGREEMENT FOR PURCHASE OF SHARESINSAMPLE COMPANYBY AND AMONGSELLER NAME(“SELLER)AND SAMPLE COMPANY(“COMPANY)ANDBUYER NAME(“BUYER)DateAGREEMENTFOR TRNASFER OF EQUITY INTERESTTHIS AGREEMENT FOR PURCHASE OF SHARES (“Agreement) is made on the Date by and among.Seller Name, a Chinese limited liability company, with offices at address (“Seller);Sample Company, a Chinese limited liability company, with offices at address(“Company)Buyer Name, a corporation incorporated in the state of Delaware, the United States, with offices at address (“Buyer); andWHEREAS, Company was established pursuant to the Company Law of the Peoples Republic of China; andWHEREAS, Seller desires to transfer to Buyer, and Buyer desires to purchase from Seller, all of Sellers equity interest in Company (“Transferred Shares) on the terms and subject to the conditions of this Agreement.NOW, THEREFORE, the Parties hereby agree as follows:1. DEFINITIONS1.1 Terms used but not otherwise defined herein shall have the meanings set out for such terms in Schedule A.1.2 Other definitional provisions include:(a) A reference to any applicable laws or to any legislation, or to any provision of Applicable Laws or of any legislation includes a reference to such Applicable Laws or legislation as amended or modified from time to time.(b) A reference to a “person includes any individual or entity (including any company, business or other enterprise or entity, joint venture, institution, state or government department), as the context permits.(c) References in this Agreement to contracts, agreements or other documents, shall mean the same as amended from time to time.(d) A reference to any PRC government authority or department includes such authority or department at State, provincial, municipal and other levels.(e) References in this Agreement to government ministries, bureaux, departments, commissions, agencies, etc. shall include all successor entities thereto.(f) In this Agreement, the masculine form includes the feminine form and the singular form includes the plural form, and vice versa.(g) Headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.(h) A reference to any Party to this Agreement or to any other party to any contract, agreement or document includes a reference to that partys successors and permitted assigns.(i) The words “includes or “including mean “includes without limitation and “including without limitation respectively.2. AGREEMENT TO PURCHASE AND SELL; CLOSING2.1 Agreement to Purchase and Sell. On the terms and conditions of this Agreement:(a) Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller all of the Transferred Shares in consideration for the Purchase Price.2.2 Purchase Price(a) Amount. The “Purchase Price shall be · United States Dollars (US $ ·).(b) Payment of Purchase Price. Buyer shall pay the Purchase Price, in immediately available funds by wire transfer, as follows:(i) At the Closing, seventy percent (70%) of the Purchase Price amounting to · Dollars ($·) (the “Closing Date Payment) shall be paid to a bank account designated by Seller.(ii) At the Closing,thirty percent(30%) of the Purchase Price, amounting to · Dollars ($·)(“Set Off Amount) shall be paid to Escrow Agent, pursuant to an escrow agreement in the form attached as Annex B hereto(“Set Off Escrow Agreement),to be disbursed, in accordance with the terms of such agreement, at the end of 36 months following the Closing Date.(c) Seller shall notify Buyer, in writing of the details of its bank account. Payment of the Purchase Price shall be deemed to have been made when the recipient bank has received the applicable portion of the Purchase Price.2.3 Contemporaneous Actions of the Parties. Contemporaneously with the execution of this Agreement:(a) Seller shall cause Company to execute and deliver the following documents:(i)unanimous resolutions of the Board of Directors of Company(“Current Board),conditioned upon and to be effective as of the Closing, (A)approving the transactions contemplated by this Agreement,(C)approving the entering into of any of the Ancillary Agreements to which Company is party and (D) revoking each existing mandate given by Company for the operation of its bank accounts, English and Chinese copies of which are attached as Annexes D-1 and D-2,respectively(“Transfer Resolutions); and(ii) the written resignation, conditioned upon and to be effective as of the Closing, of each member of Companys Current Board, copies of which are attached as Annexes E-1 through E-5(“Current Board Resignation Letters);(b) Buyer shall deliver a fully executed undated Wholly Foreign-Owned Enterprise Articles of Association of Company, English and Chinese copies of which are attached as Annexes F-1 and F-2,respectively(“New Articles of Association “);(c) Buyer shall deliver to the Company an undated list in English and Chinese of the new board of directors of the Company (“New Board) to be appointed and registered with the Public Authority following the Closing in the forms attached as Annexes G-1 and G-2;and(d) Buyer shall deliver fully executed undated unanimous resolutions of the New Board, conditioned upon and to be effective as of the Closing,(A) ratifying the Current Boards actions in the Transfer Resolutions, including the entering into of any of the Ancillary Agreements to which Company is party,(B)accepting the resignations of the Current Board, and (C) establishing a new mandate given by Company for the operation of its bank accounts, English and Chinese copies of which are attached as Annexes G-3 and G-4, respectively (“New Board Restructuring Resolutions).(e) List of Signing Stage Ancillary Agreements(if any);For purposes of this Section 2.3, deliver of any document referenced above shall refer to delivery to each other Party to this Agreement.2.4 Closing. Subject to the terms and conditions of this Agreement , the sale and purchase of the Transferred Shares as contemplated hereby , shall take place at a closing (“Closing) to be held at 10:00 a.m., Beijing time, no later than three (3)Business Days following the Transfer Approval Date at the office of Company located at ·,or at such other time or on such other date or at such other place as Seller and Buyer may mutually agree upon in writing (the day on which the Closing takes place being the “Closing Date).2.5 Closing Deliveries by Seller. At Closing, Seller shall deliver or cause to be delivered to Buyer:(a) By Seller: (i) a counterpart, executed by Seller ,or one of its Affiliates , of each of the: (A) Set Off Escrow Agreement; (B) List of Closing Stage Ancillary Agreements; and any other Ancillary Agreements to which Seller is a party.(ii) a certificate of an officer or other duly authorized representative of Seller authorizing the execution and delivery of this Agreements and the Ancillary Agreements to which Seller is a party, and the performance of the transactions contemplated thereby;(iii) a receipt for the Closing Date Payment following receipt of payment thereof; and(iv) such other evidence as Buyer or Buyers counsel may reasonably request to demonstrate the satisfaction of compliance with covenants on the part of Seller.2.6 Closing Deliveries by Company .At Closing:(a) Company shall deliver to Buyer the following documents:(i) fully executed duplicate original copies of the following documents, which were previously entered into in accordance with Section 2.3:(A) Transfer Resolutions, in English and Chinese versions; and (B) Current Board Resignation Letters dated as of the Closing Date.(ii) all Company chops.(b) Buyer shall cause Company:(i) to deliver to Seller fully executed duplicate original copies of the following documents, which were previously executed in accordance with Section2.3:(A) New Board Restructuring Resolutions dated as of the Closing Date ，in English and Chinese versions.(ii) to deliver to Seller a counterpart, executed by Company ,of each of the:(A) List of Closing Stage Ancillary Agreements2.7 Closing Deliveries by Buyer. .At Closing, Buyer shall deliver or cause to be delivered to Seller:(a) The Closing Date Payment;(b) Written confirmation by Escrow Agent, pursuant to the Set Off Escrow Agreement of the receipt of all amounts to be deposited thereunder; (c) A counterpart, executed by Buyer, of the Set Off Escrow Agreement;(d) fully executed duplicate original copies of the following documents，which were previously executed in accordance with Section2.3: (i) New Articles of Association dated as of the Closing Date, in English and Chinese versions; and(ii) List of members of the New Board dates as of the Closing Date, in English and Chinese versions(e) a certified copy the resolution of Buyers Board of Directors authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which Buyer is a party ;and(f) Certified copies of the Certificate of Incorporation, or similar documents of Buyer.3. REGISTRATIONS AND APPROVALS3.1 Submission of Transfer Documents. Within three (3) Business Days following the execution of this Agreement, Company shall submit to Approval .Authority for approval of the transfer of the Transferred Shares (“Transfer):(i) Transfer Resolutions;(ii) New Articles of Association;(iii) Current Board Resignation Letters;(iv) New Board Restructuring Resolutions; (v) Set Off Escrow Agreement;(vi) Asset Valuation Report; and(vii) Such other documents as may be required by Approval Authority. (collectively, the “Transfer Documents).Seller and Buyer shall provide Company with such assistance in connection with the application for approval of the Transfer as Company may reasonably request. The Parties shall endeavor to obtain ,within ninety (90) days following the date of submission of such Transfer Documents, the necessary approvals for the Transfer Documents from Approval Authority to permit the Company to carry on its existing business activities throughout the PRC without limitation or restriction ,including without limitation or restriction ,including without limitation receipt of the original approval certificate issued by Approval Authority approving the equity transfer and the conversion of Company into a wholly foreign owned enterprise .The date on which the necessary approvals for the Transfer have been obtained from Approval Authority shall be the “Transfer Approval Date.4. PRE-CLOSING COVENANTS4.1 Operation in Ordinary Course. From the date of this Agreement until the Closing Date ,Seller shall cause the Company to (i) maintain its business and operations in accordance with Companys past practices, (ii) continue to meet its contractual obligations incurred in the ordinary course of business, in accordance with past practices, (iii) pay all of its obligations as they mature in the ordinary course of business, in accordance with past practices, (iv) preserve ,in accordance with past practices, its current relations with its existing employees, and (v) preserve, in accordance with past practices, its current relations with its suppliers, customers, distributors and others with whom it has business relations.4.2Access to Company Facilities and Records.(a)Seller shall permit Buyer, and any person authorized by Buyer, reasonable access during normal business hours to inspect the operations of Company and any records of Company and its assets.(b) In connection with the continuing operation of the business of Company between the date of this Agreement and the Closing, Seller and Company shall provide an office in the Companys main facility for use by a representative of Buyer (“Buyers Representative). Seller and Company shall advise, on a regular and frequent basis, with Buyers Representative regarding (i) material operational developments ,including the entering into or the termination of any material customer or vendor contract, and (ii)the general status of ongoing operations as reasonably requested by Buyers Representative. 4.3Additional Information. Sellers shall, and shall cause Company to, promptly provide Buyer with all information it reasonably requests in respect of Company, its operations or its assets. 4.4No Dividends or Distributions. Company shall not pay any dividends or make any other distribution of profits or assets to Seller.5 POST-CLOSING CONVENTS5.1From and after the Closing Date:(a)Buyer shall be responsible to apply to · Administration for Industry and Commerce for a new or amended business license for Company. Seller shall provide Buyer with such assistance in connection with the issuance of the new or amended business license as Buyer may reasonably request.(b)Buyer shall cause that Company shall:(i)insert deal specific covenants(c)Buyer shall assume all the rights, benefits, obligations, risks and liabilities relating to the Transferred Shares;(d)Promptly following the Closing ,Buyer shall cause the Company to register the New Board list with the Public Authority in the form delivered pursuant Section 2.3(d);and(e) Each Party undertakes to sign all such additional documents and to take all such additional actions as may reasonably be necessary to implement the transfer of the Transferred Shares and the other provisions of this Agreement. 5.2 Insert Non-compete Clause if Appropriate.6. REPRESENTATIONS AND WARRANTIES; FURTHER ASSURANCES6.1 Reserved6.2 Representations and Warranties of Seller and Company. Except as otherwise set forth in the Disclosure Schedule , Seller and Company represents and warrants to Buyer as of the date hereof and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date only), as follows:(a) Authorization; Enforceability. (i) The execution, delivery and performance of this Agreement has been duly authorized by all necessary action on the part of Seller and Company and (ii) this Agreement will be binding and enforceable in accordance with its terms (assuming due execution and delivery by Buyer), subject to applicable bankruptcy, solvency and other laws effecting creditors rights generally.(b) Transferred Shares(i) Seller has not entered into any agreements or made any commitments with any Person for the sale, transfer or assignment of the Transferred Shares, other than this Agreement; and (ii) as of the Closing Date, upon transfer of the Transferred Shares