EXHIBIT 4.10
SHARE TRANSFER AGREEMENT
This contract is made by and between the following parties in Huizhou City,
Guangdong Province on 25th January, 2002.
Party A: Namtai Electronic (Shenzhen) Co., Ltd.
Address: Gu Su Industrial Estate, Xinan, Baoan, Shenzhen
Legal Representative: Chang Yung-chang
Party B: Hui Zhou City Investment Holdings Co., Ltd.
Address: Xiapu Financial Trust Building, Huizhou
Legal Representative: Zheng Chuan Lie
WHEREAS:
1. Party A is a foreign enterprise incorporated in Shenzhen, the People's
Republic of China (hereinafter referred to as "China"), in accordance
with the "Law of the People's Republic of China on Enterprises with
Foreign Investment".
2. Party B is a state wholly-owned limited liability company incorporated
in Huizhou City, Guangdong province, the People's Republic of China, in
accordance with the "Companies Law of the People's Republic of China"
(hereinafter referred to as the "Companies Law").
3. TCL Holdings Corporation Limited, is a limited liability company
(hereinafter referred to as the "TCL Holdings") incorporated in Huizhou
City, Guangdong province, in accordance with the "Companies Law".
4. Party B legally holds 53.35% shareholdings of TCL Holdings.
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5. Party A is willing to purchase part of the shares of TCL Holdings in
Party B's possession in cash, accounting for six percent (6%) of TCL
Holdings's registered capital of RMB 493,879,768.00; Party B is willing
to transfer its said shares in TCL Holdings.
THEREFORE, THIS AGREEMENT IS HEREBY MADE for mutual observance through equal
consultation.
ARTICLE 1 DEFINITIONS
Unless otherwise provided in the context hereof, the following terms shall have
the following meanings in this Agreement:
"Share Transfer" means that Party A shall buy the shares from Party A
and Party B shall sell the same to Party A in accordance with
the terms hereof.
"Shares" means the capital contribution and interests thereunder held
by Party B to be transferred to Party A, which accounts for 6%
of TCL Holdings's registered capital of RMB 493,879,768.00.
"Parties" means Party A and Party B hereto.
"Valuer" means the legally registered asset valuation organization
approved by the parties for the valuation of TCL Holdings's
assets.
"Asset Valuation Report" means the asset valuation report prepared by the
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Valuer in relation to TCL Holdings's assets, i.e. the
asset valuation report of TCL Holdings Corporation Limited.
(Hui-Zheng-Ping-Bao Zi [2002]No.01) (whose latest draft is
listed in Appendix 1).
"Transfer" means that the registered owner holder of the shares hereunder
shall be changed from Party B to Party A.
"Valuation Reference Date" means 31st December, 2001.
"Relevant Period" means the period from the Valuation Reference Date (exclusive
of the valuation reference date) up to the date of the
Transfer.
"Net Asset Value" means the net asset value of TCL Holdings as at
31st December, 2001, which has been calculated in accordance
with the current accounting standards of the People's Republic
of China.
"Management Accounts" means TCL Holdings's management accounts up to
October 2001 (whose copies are listed in Appendix 2).
"Working Days" means the business days when the banks in Guangdong Province
carry on general banking business (except for Saturdays and
Sundays).
ARTICLE 2 SHARE TRANSFER AND CONSIDERATION
2.1 Party A agrees to buy the shares held by Party B in accordance with the
consideration and conditions determined herein.
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2.2 Party B agrees to transfer its Shares to Party A in accordance with the
consideration and conditions determined herein.
2.3 The consideration determined by the parties for the Share Transfer
shall be Renminbi Yuan Ninety-Eight Million Five Hundred and Twenty
Thousand Only (RMB 98,520,000.00).
2.4 If any change in the total of the share capital or the actual
contributions of TCL Holdings before the Transfer results in the
reduction of the percentage of the shares to be bought by Party A
hereunder to less than 6%, the consideration of the Share Transfer
stated in the said article 2.3 will be calculated on the basis of the
percentage of the actual shares obtained upon the Transfer.
ARTICLE 3 COMPLETION
3.1 CONSIDERATION
3.1.1 Within 7 working days from the date when this Agreement becomes
effective in accordance with Article 11 hereof, Party A shall pay
Renminbi Yuan Sixty Million Only (RMB 60,000,000.00) into Party B's
account designated by Party B (i.e. bank account No.
2008020119022141684 with the First Business Department of Huizhou
Branch of the Industrial and Commercial Bank of the People's Republic
of China).
3.1.2 Within 7 working days from the date when TCL Holdings's general meeting
of shareholders adopts the Transfer in accordance with the resolution
stated in Article 3.2.1 hereinafter, Party A shall pay Renminbi
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Yuan Twenty Million Only (RMB 20,000,000.00) into Party B's account
designated by Party B (i.e. such a bank account as stated in Article
3.1.1).
3.1.3 Within 7 working days from the date when TCL Holdings completes the
change of the registration with the Administration For Industry And
Commerce in accordance with Article 3.2.3 hereinafter, Party A shall
pay the balance of the consideration into Party B's account designated
by Party B (i.e. such a bank account as stated in Article 3.1.1).
3.2 TRANSFER
3.2.1 Within 7 working days from the date when this Agreement becomes
effective in accordance with Article 11 hereof, TCL Holdings shall
convene a general meeting of shareholders, amend the contents of the
Articles of Association in relation to shareholders and appoint a
representative assigned by Party A as a director of TCL Holdings.
3.2.2 Within 5 working days from the date when Party A pays the sum under
Article 3.1.1 into such a bank account designated by Party B, Party B
shall assist Party A in obtaining the "Certificate of Capital
Contribution" issued by TCL Holdings, enter the name of Party A into
the register of shareholders and enter the name of the director
assigned by Party A into the register of directors.
3.2.3 Within 5 working days from the date when Party A pays the sum under
Article 3.1.1 into such a bank account designated by Party B, Party B
shall assist Party A in the completion of the change of registration
with the Administration for Industry and Commerce in relation to this
Share Transfer of TCL Holdings.
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3.2.4 As from the date of the completion of the change of registration with
the Administration for Industry and Commerce, Party A shall hold the
Shares transferred in this Transfer and officially become shareholder
of TCL Holdings.
ARTICLE 4 HANDLING OF INTERESTS AND LIABILITIES ARISEN DURING RELEVANT PERIOD
4.1 All the profits of TCL Holdings as at 31st December, 2001 shall be
vested in the shareholders before the Transfer.
4.2 The interests and liabilities arisen under the Shares during the
Relevant Period shall be transferred together with the transferred
shares.
ARTICLE 5 PARTY A'S REPRESENTATIONS AND WARRANTIES
5.1 Party A has disclosed to Party B all the information and data required
for the Share Transfer.
5.2 Party A has obtained the legal and official approval and authorization
required to enter into this Agreement (i.e. it has obtained the
approval and authorization of its board of directors or its general
meeting of shareholders).
5.3 Party A will coordinate with Party B in obtaining all permits and
approvals required for this Share Transfer and completing the
formalities of change of registration.
5.4 Party A warrants that it shall provide Party B and the intermediary
organization for the stock issue and listing of TCL Holdings with all
the
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information reasonably required for stock issue and listing, assist TCL
Holdings to make a resolution on the system reform as soon as possible
and assist with the completion of the intermediary organization's
conscientious investigation that involving Party A that required for
listing.
5.5 Party A warrants that it shall provide necessary and reasonable
assistance for the listing of TCL Holdings.
ARTICLE 6 PARTY B'S REPRESENTATIONS AND WARRANTIES
6.1 Party B has disclosed to Party A all the information and data required
for Party A to make a decision on the acceptance of the transferred
shares.
6.2 Party B warrants that before the completion of such a change in the
shareholder registration as provided in Article 3.2 hereof, Party B's
shares in TCL Holdings are complete and free from any mortgage, pledge
or any other third party encumbrance imposed on the Shares in any
nature.
6.3 Party B warrants that before the completion of such a change in the
shareholder registration as provided in Article 3.2 hereof, no legal
person or individual other than Party B will make any claim in any form
against Party B's Shares.
6.4 Party B is a company which is established according to law and which
subsists legally. Party B is provided with all the authority and legal
approval and authorization (i.e. it has obtained the approval and
authorization of its board of directors or its general meeting of
shareholders) required to enter into this Agreement. This Agreement
will obtain the consent and approval of the government authorities
concerned for its execution.
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6.5 The signing and execution hereof will not violate or conflict with any
term of the Articles of Association of Party B and TCL Holdings itself,
nor violate any legal provision. Party B has obtained all the third
party's consents or authorizations required for the transactions
hereunder and all the other shareholders of TCL Holdings have waived
all their pre-emptive rights in the purchase of the Shares.
6.6 TCL Holdings's management accounts and asset valuation reports are
true, complete and accurate. The management accounts are prepared in
accordance with the financial and accounting systems of the relevant
laws of the People's Republic of China and in the light of TCL
Holdings's particular conditions and they truly and fairly reflect TCL
Holdings's assets, liabilities and other financial and operating
situations as at the dates of the accounts. The management accounts are
in complete consistence with the requirements of the laws and
regulations of the People's Republic of China and with the accounting
principles adopted in the People's Republic of China.
6.7 From the date of the balance sheet of the management accounts up to the
date of the Transfer, no material adverse impact will occur on TCL
Holdings's assets, liabilities and other financial and operating
situations, nor any action is or will be taken (or no action will be
taken) by Party B or TCL Holdings in such a way as to give any material
adverse impact on TCL Holdings's assets, liabilities and other
financial and operating situations.
6.8 TCL Holdings has completed all the tax registrations required by laws
and regulations and paid all the taxes payable.
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6.9 All the existing assets of TCL Holdings are in a good and normal
operating and producing state. TCL Holdings is in legal possession and
use of all the tangible and intangible assets of TCL Holdings. In
addition to the intellectual property in TCL Holdings's possession
(including but not limited to patents, trademarks, copyrights,
proprietary rights, domain names and trade secrets and etc.), TCL
Holdings has obtained necessary authorizations or permits for its
business activities involving others' intellectual property. TCL
Holdings has no act which infringes upon any others' intellectual
property. TCL Holdings's trademarks, patents, software copyrights and
domain names have officially been registered according to law.
6.10 TCL Holdings's business activities comply with current effective laws
and regulations (collectively known as "Regulations"). TCL Holdings has
obtained all the authorizations, permits, approvals and licences
required for its current business activities. All the above items
remain valid now.
6.11 Party B shall immediately give Party A a notice when Party B comes to
know any matter which may render Party B's representations and
warranties hereunder inaccurate, somewhat misleading or violated in any
material aspect or which may give any material adverse impact on TCL
Holdings's assets, liabilities and other financial and operating
situations.
6.12 If Party A finds any of Party B's representations and warranties
hereunder to be or have ever been untrue or misleading or to have been
violated or ever been violated before the Transfer, Party A shall,
before or after the Transfer, be entitled to claim compensation from
Party B and Party B shall compensate Party A for Party A's actual
losses. Party A's consent to the Transfer shall not be deemed to be or
constitute Party A's waiver of
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any of its rights hereunder.
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ARTICLE 7 OTHER UNDERTAKINGS OF PARTY A AND PARTY B
7.1 Since TCL Holdings intends to change into a limited company as provided
in the "Companies Law", both Party A and Party B will become the
subscribers of the limited company, who shall hold the Shares and
assume obligations in accordance with the relevant provisions of the
"Companies Law".
7.2 Upon completion of this Share Transfer, the Articles of Association of
TCL Holdings shall not be amended in any manner so as to maintain the
stability of the board of directors and existing management of TCL
Holdings except for the part(s) of TCL Holdings's Articles of
Association (including the appointment of the director assigned by
Party A) required to be amended according to the relevant laws and
regulations.
7.3 If Party B informs Party A according to Article 6.11 hereof that it
fails to obtain any approval, licence or any other permit required for
the production and sale of some products for any reason before the
Transfer, Party A allows Party B to obtain the relevant approvals,
licences and permits within a reasonable period after the Transfer and
Party B undertakes to try its best to cause and ensure the obtaining of
the relevant approvals, licences and permits as scheduled.
ARTICLE 8 LIABILITY FOR BREACH OF THIS AGREEMENT
8.1 If either party fails to perform any obligation hereunder or its
performance of such an obligation hereunder does not comply herewith,
it shall assume the liability for breach of this Agreement, such as the
continuance of its performance, remedial measures or compensation for
any losses.
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8.2 If one party expresses or shows by means of its own act its
non-performance of any obligation hereunder, it may be required by the
other party to be responsible for the default before the expiration of
the performance period.
8.3 If either party fails to perform any obligation hereunder or its
performance of such an obligation hereunder does not comply herewith,
it may be required by the other party to perform it unless there is any
of the following events that:
(1) it cannot be performed in law or in fact;
(2) the subject-matter hereof is not suitable for any compulsory
performance or the performance cost is too high; or
(3) the other party does not demand its performance within a
reasonable period of time.
8.4 If either party fails to perform any obligation hereunder or its
performance of such an obligation hereunder does not comply herewith,
it shall compensate the other party for any other losses arisen after
it performs the obligation or takes any remedial measures.
8.5 If either party fails to perform any obligation hereunder or its
performance of such an obligation hereunder, thus resulting in any
losses of the other party, the compensation for the losses shall be
equivalent to the losses arisen from the default, including the
benefits which can be obtained after the performance hereof, but it
shall not exceed the losses which may arise from the default hereof,
which is foreseen or ought to be
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foreseen, from the default by the defaulting party upon entering into
this Agreement.
8.6 If all or any part hereof cannot be performed due to any force majeure,
the period for the performance hereof shall be extended accordingly and
part or all of the liability shall be relieved according to the impact
of the force majeure. No party shall be relieved of its liability if
the force majeure occurs after the party delays its performance hereof.
The force majeure stated herein means any unforeseen, unavoidable and
insurmountable circumstances.
8.7 If either party fails to perform this Agreement due to any force
majeure, it shall inform the other party in time so as to minimise the
losses which may be caused to the other party and provide the other
party with the evidence within a reasonable period.
8.8 If either party has breached this Agreement, the other party shall take
appropriate measures to mitigate the losses. If no appropriate measures
are taken which results in the increase of the losses, no compensation
shall be claimed for the increased losses. The reasonable expenses
incurred by the other party to mitigate the losses shall be borne by
the defaulting party.
8.9 If both parties violate this Agreement, they shall respectively be held
responsible.
ARTICLE 9 AMENDMENTS AND TERMINATION OF AGREEMENT
9.1 AMENDMENTS OF AGREEMENT
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Any amendments to this Agreement shall only become effective after the
parties have consulted with each other and entered into a written
agreement which shall be signed by and affixed with the official seals
of the legal representatives or authorized representatives of the
parties and approved by all the examination and approval authorities
which originally examined and approved this Agreement. If the parties
cannot compromise, this Agreement shall remain effective.
9.2 TERMINATION OF AGREEMENT
9.2.1 This Agreement shall be terminated automatically if Party B fails to
perform its obligation under Article 3.2 hereof before 28th February,
2002. After this Agreement terminates automatically as provided herein,
Party B shall return to Party A the sums which have been paid by Party
A together with the interest calculated according to the current bank
savings deposit interest rate.
9.2.2 This Agreement shall be terminated automatically if the amount payable
as provided in Article 3.1.1 hereof is not paid into the account
designated by Party B within fourteen (14) working days after the date
when this Agreement becomes effective.
9.2.3 In addition to the provisions in 9.2.1 and 9.2.2, the parties shall
enter into a written agreement wherein they unanimously agree to
terminate this Agreement after consultation and the termination
agreement shall only become effective after it is signed by and affixed
with the official seals by the legal representatives or authorized
representatives of the parties and approved by all the examination and
approval authorities which originally examined and approved this
Agreement.
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9.2.4 Party A shall be entitled to terminate this Agreement if there is a
deviation of 10% occurs between the value of the Shares of the overall
enterprise assets stated in the officially issued Asset Valuation
Report and that stated in Appendix 1. After this Agreement is
terminated as provided herein, Party B shall return to Party A the sums
which have been paid by Party A together with the interest calculated
according to then current bank savings deposit interest rate.
9.2.5 This Agreement shall be terminated automatically if the conditions
precedent in Article 11.1 for this Agreement are not satisfied within
thirty (30) days from the date when this Agreement is signed.
ARTICLE 10 TAXES AND EXPENSES
10.1 The relevant taxes and other burden such as income taxes involving the
Transfer (including but not limited to business taxes and value-added
taxes (if any)) shall be borne by Party B.
10.2 The expenses arisen from handling the Share Transfer (except for those
stated in Article 10.3 hereinafter) shall be borne by Party B.
10.3 The expenses arisen for the parties to obtain the approval of the
Transfer shall be borne by the parties respectively.
ARTICLE 11 ENFORCEMENT, EFFECTIVENESS, AND POST-CONDITIONS OF THIS AGREEMENT
11.1 This Agreement shall become effective and come into force as from the
date when the following conditions are satisfied:
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(i) this Agreement is signed and affixed with the official seals
by the parties;
(ii) the Share Transfer is approved by People's Government of Hui
Zhou Municipal and Financial Ministry of Hui Zhou (including
but not limited to the consent to and confirmation of the
Asset Valuation Report by Financial Ministry of Hui Zhou and
the registration formalities required (if any) are completed
for the Asset Valuation Report); and
(iii) all the consents or approvals of the relevant government
authorities required for the Share Transfer and transactions
hereunder have been obtained (except to the approval mentioned
in Article 11.3 hereof).
11.2 The conditions for this Agreement to become effective in Articles
11.1(ii) and (iii) above shall be the responsibility of Party B.
11.3 Within sixty (60) days from the date when this Agreement becomes
effective, Party A shall be responsible for obtaining the approval (if
necessary) of the Guangdong Commission of Foreign Trade and Economic
Co-operation for its investment in TCL Holdings and Party B undertakes
to give the assistance required. If the approval stated herein cannot
be obtained as scheduled, this Agreement shall be terminated
automatically. After this Agreement is terminated as provided herein,
Party B shall return to Party A the sums which have been paid by Party
A together with the interest calculated according to the current
savings deposit interest rate and Party A shall also return the Shares
to Party B. Except for this, the parties shall not have further
responsiblility for this Agreement.
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ARTICLE 12 SETTLEMENT OF DISPUTES
12.1 The laws of The People's Republic of China shall be applicable to this
Agreement and this Agreement shall be construed in accordance with the
laws of The People's Republic of China.
12.2 Any dispute arisen herefrom or in connection herewith shall be settled
by the parties through friendly reconciliation. If the dispute cannot
be settled through friendly reconciliation within 15 days, legal
proceedings can be commenced at the court of the place where this
Agreement is signed according to legal procedures.
12.3 In the course of legal proceedings, the other terms hereof, which are
not the subjects of the proceedings, shall remain effective and be
performed by the parties.
ARTICLE 13 MISCELLANEOUS
13.1 The appendices hereto and supplementary agreements or contracts hereof,
which are entered into by the parties through consultation, shall have
the same legal force as this Agreement.
13.2 The management accounts and asset valuation reports shall be ipso facto
integral parts hereof and shall have the same legal force as this
Agreement.
13.3 This Agreement is executed in eight (8) counterparts, with two (2)
counterparts to be respectively held by each party and the other
counterparts shall be used for the application for approval or for
filing, and they shall have the same legal force.
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Party A: Party B:
[Signed: Chang Yung-chang] [Signed: Zheng Chuan Lie]
[Sealed: Namtai Electronic (Shenzhen) Co., Ltd.] [Sealed: Hui Zhou City Investment Holdings Co.,
Ltd.]
Legal Representative or Authorized Representative Legal Representative or Authorized Representative
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