四、法律文书
资产购买协议
本资产购买协议（“协议”）于 年 月 日（“交易日”）由ZZZ为一方，与出售方和股东（如以下定义）作为另一方签订。下述的交易完成（“交割”）于交易日生效。
引 述
Y3有限公司（“Y3”）其股东和关联企业包括YYY有限公司、Y1有限公司以及Y2有限公司，它们是共同致力于包括设计、制造和销售家具机械装置、附件、其它相关家具产品及各种其它相关的金属冲压件，包括但不限于应用于电信行业的冲压件的企业（“企业”）。该企业主要在中国市场经营其业务，但是其客户遍布中国、美国以及世界其他地方。除了用于企业生产金属冲压件的金属冲压设备，Y3有限公司、YYY有限公司、Y1有限公司以及Y2有限公司（统称“目标公司”）拥有企业内使用或所需的全部资产（“资产”）。
XXX有意按照本协议的条款和条件以购买资产的方式收购该企业。目标公司和股东（如以下定义）（统称为“出售方”）有意依照本协议的条款和条件通过促使目标公司出售资产给XXX的形式剥离该企业。目标公司的个人股东（统称为“股东”）也希望签订本协议以使XXX收购该企业。
XXX、出售方以及股东协商一致，依法达成以下协议：
协 议
1. 购买和出售。
出售方在此出售、交付和转让给XXX，而XXX在此买入并占有资产和企业。资产由企业所拥有的、在企业中使用的或准备在企业中使用的所有有形的和无形的资产构成，包括但不限于：
(a) 列于本协议签署之日由Y3交付给XXX的销售单之上的机器、设备和其它有形个人财产（统称为“设备”）；
(b) 定义在或列于本协议附件1中的库存、知识产权、合同权利以及其它双方确认的项目。
尽管有前述规定，资产不应当包括（且出售方保留）企业的所有现金以及用于业务经营的房地产（统称为“除外资产”）。
2. 购买价格
购买资产和企业的价格（“购买价格”）为美元。目标公司大约至少拥有X美元的营运资金（如以下定义），该等营运资金应当达到上述企业2005年销售收入（在交易日予以确认）的X%。如果交易日后经验证营运资金超过2005年销售收入的X%，则超过部分将偿还出售方；如果交易日后经验证营运资金不足2005年销售收入的X%，则不足部分将从美元的保留款中予以扣除，扣除后的余额将偿付给出售方。保留款是为了在交易日后大约90天或者更少的期间内，保证应付帐款的完全支付或者营运资金满足最小额的要求。
1A. “净营运资金”是指于交易日由XXX本着诚意使用美国普遍接受的会计准则评估的良好库存。XXX在交割前应当对净营运资金进行评估。基于该等评估，XXX在交割时应当向出售方支付评估的购买价格（“评估购买价格”）。XXX应当在交割后的一百二十（120）天内确定净营运资本和实际购买价格。如果评估购买价格低于实际购买价格，XXX应当立即以现金向出售方支付差额。如果评估购买价格高于实际购买价格，XXX应当一起或者分别将差额以现金方式支付给出售方。
2A. 购买价格的支付。在交易日前，各方应当共同准备一份计算评估购买价格的进度表。评估购买价格应当由买方在交易日后的十五 （15）个工作日内依照下述向出售方支付：
(i) X美元；
(ii) X美元，如在上述第2条描述的作为保留款。
3. 其它对价
在交易日后，出售方可就额外对价期间取得总额可达美元的基于财务表现的额外对价（“额外对价”）。此处所提及的额外对价期间应当自2005年交易日后满一个月后的第一天开始起算，至2007年额外对价期间开始后两周年期满后结束。基于财务表现额外对价条款（如有），将按附件2规定的方式确定。在任何情况下，所有基于财务表现额外对价的总额（如有）不得超过XX美元。XXX有权因出售方或股东或其任一股东或者关联公司违反本协议或任何相关协议产生的权利主张对该等基于财务表现额外对价或者奖金进行抵扣。出售方在此授权Y3有限公司作为其代表接收购买价格和额外对价，并为与额外对价或者本协议有关之所有目的作为其代理人。如果XXX和Y3有限公司之间有任何不能解决的、有关额外对价或奖金的计算和支付的争议，其任何一方可将该等争议依照本协议第8条的规定提交仲裁解决。
4. 不承担责任
XXX不对企业或出售方的任何债务、权利主张、留置、义务、责任、职责、合同、协议或者税负（统称为“责任”）负责，且XXX不承担或同意进行支付、履行、偿还，无论该等责任是实际的或偶然的、已知的或未知的。特别地，XXX拒绝承担（但不限于）与资产或者企业有关的所有责任，包括但不限于贷款义务和留置权、环境事宜、雇员福利或者到期合同义务、年金责任、工会事宜、产品责任、税负及所有形式的债务。各出售方和各股东共同或单独地同意补偿、为其抗辩并使XXX免于遭受以下：(i) 企业或出售方的全部责任；和(ii) 因各出售方或各股东违反其在本协议或者任何相关协议项下的任何承诺、陈述或者保证引发或与之有关的全部损害或损失。各出售方和各股东共同或者单独地向XXX作出陈述和保证，出售方将向XXX出售和转让资产和企业，除因出售库存给XXX应承担的增值税外，不存在：(i)留置、权利主张、抵押及其它妨碍（统称为“妨碍”）；和(ii) 如出售方未支付或满足可能引起任何妨碍的债务。
mechanisms and accessories, bedding components, metal stampings, beds bedding products and components and shelving. The “ZZZ Parties” means ZZZ and each of its corporate affiliates (including its parent company and subsidiaries); all ZZZ Parties are intended beneficiaries of the covenants made by the Selling Parties and the Shareholders in this Section 6.
7. Confidential Information. The Assets include, without limitation, all know-how, business and trade secrets, methods, formulas, manufacturing processes, research and development, and cost and other information related to the Assets and the Business (collectively the “Confidential Information”). Each of the Selling Parties and the Shareholders agree that, for so long as ZZZ has not disclosed any Confidential Information to the general public, the Selling Parties and Shareholders will not use or disclose such Confidential Information in any manner.
8. Arbitration. All disputes and claims arising under this Agreement will be resolved through arbitration conducted in accordance with this Section 8; provided, that nothing in this Agreement shall preclude the ZZZ Parties from seeking equitable or injunctive relief in any court of proper jurisdiction in China or in the State of ____, United States, with respect to any breach of the covenants in Section 6 or 7 of this Agreement. Any dispute, controversy or claim arising out of or related to this Agreement, or the breach, termination or invalidity thereof, may be settled by arbitration conducted in accordance with the UNCITRAL Arbitration Rules (the "Rules") as at present in force. The appointing body shall be the Hong Kong International Arbitration Centre.
The arbitration tribunal shall consist of three (3) members, one of whom shall be appointed by each party to this Agreement and the third of whom shall be appointed by the appointing body. In the event that either party fails to appoint its respective arbitrator within thirty (30) days after the commencement of the arbitration proceedings, such arbitrator and the third arbitrator shall be appointed in accordance with the Rules.
The place of arbitration shall be in the Hong Kong Special Administrative Region of the People’s Republic of China. The language to be used in the arbitral proceeding shall be English.
Arbitration shall be deemed to commence upon the request or demand for arbitration filed by one party with the other party in accordance with the Rules. Any award or decision by the arbitration tribunal shall be final, non-appealable and binding upon the parties, and judgment thereon may be entered in any court having jurisdiction thereof. Any award or decision shall be rendered by a majority of the members of the arbitration tribunal.
9. Choice of Law. Except as provided otherwise in this Section 9, this Agreement will be governed by the published laws of the People’s Republic of China. If such laws of China do not regulate a certain matter, then the laws of the State of____, United States will apply. The laws of the State of____, United States, also may be applied by a court or arbitrator to any breach of Sections 6 or 7 of this Agreement if such breach has any economic impact on the operations of any of the ZZZ Parties in the United States.
10. Miscellaneous.
10.1 The Selling Parties and Shareholders are signing and delivering with this Agreement the following additional agreements (collectively, with this Agreement, the “Transaction Documents”): (a) Real Estate Lease between ZZZ and Y3 (the “Lease”); (b) Bill of Sale And Assignment from Y3 to ZZZ (“Bill of Sale”); (c) Employment Agreement between ZZZ and ________ (“Employment Agreement”); (d) Consulting Agreement between ___ and YYY and (e) certain other closing documents requested by ZZZ. Following the Closing, the Selling Parties and Shareholders will execute and deliver such additional documents, and take such additional actions, as ZZZ or its counsel reasonably may request in order to complete and effectuate the transactions hereunder.
10.2 ZZZ will be solely responsible for payment of all legal and professional fees and costs ZZZ incurs for the Closing of the transactions hereunder. The Selling Parties and Shareholders will be solely responsible for all other legal and professional fees and costs related to such transactions, including but not limited to all attorney fees incurred by them and all brokerage fees and taxes of any kind related to the sale and transfer of the Assets and the Business.
10.3 The Exhibits and Schedules to this Agreement are incorporated by reference into this Agreement. This Agreement and the other Transaction Documents constitute all of the agreements between the parties thereto, and supersede any prior understandings or agreements between such parties. None of the Transaction Documents may be amended except in a writing signed by the parties thereto. Neither this Agreement nor any other agreement included within the Transaction Documents shall be construed against a party by virtue of the fact that such party drafted the agreement in question. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute one and the same Agreement. Any counterpart or other signature delivered via facsimile by any party shall be deemed for all purposes as being good and valid execution and delivery of this Agreement by that party. This Agreement is executed in English and Chinese. Both language versions shall be equally authentic. Each party acknowledges that it has reviewed the texts of this Agreement in both languages, and that such texts are substantially the same in all material respects.
10.4 The Selling Parties and Shareholders acknowledge that they are solely responsible for obtaining any tax advice which they may desire in connection with the transactions hereunder, and that they are not relying on ZZZ or its advisors for tax or other advice. The Selling Parties and Shareholders shall fully indemnify, defend, and hold harmless ZZZ and its advisors and affiliates from and against all taxes of any kind that may be payable in connection with the sale of the Assets to ZZZ and the related transactions hereunder.
10.5 All notices under this Agreement shall be in writing and served by express overnight delivery, telecopy, or government mail. Notices to ZZZ shall be in English language and shall be addressed to: _____, with copies to ZZZ’s Legal Department, attention General Counsel, at the same address and to ZZZ’s Department of Mergers & Acquisitions, attention ____, at the same address. Notices to the Selling Parties or the Shareholders shall be either in Chinese and addressed to _____.
WHEREFORE, the parties have executed this Agreement as of the Closing Date.
ZZZ YYY
By: ________________________________ By: ________________________________
Its: ________________________________ Its: ________________________________
Y3
By:________________________________
Its: ________________________________
____________________________________ ___, individually
Y1
By:________________________________
Its: ________________________________
Y2
By:________________________________
Its: ________________________________
EXHIBIT 1
The Assets include, without limitation, all personal, tangible, intangible, contingent and other properties, rights, and other assets of any kind owned or held by Y3, or by any of the other Selling Parties or Shareholders if used or contemplated for use in the Business, including but not limited to the following:
(a) Inventories. All raw materials, work-in-process, and finished goods inventories that are good, usable and salable in the ordinary course of business (“Inventories”).
(b) Personal Property. All other tangible personal property owned, leased or used (“Tangible Personal Property”), including without limitation all equipment, machinery, tools, vehicles, office furniture and fixtures described on Schedule 5.__ of the Agreement. The aforesaid property shall not include personal property that brought to ZZZ by the Shareholders after the Closing Date.
(c) Records. All accounting and operating ledgers, assets ledgers, inventory records, budgets, customer lists, customer credit information, supplier lists, technical data, sales literature, correspondence, computer printouts, books, notes, files and all other accounting and operating records and other graphic or electronically stored operating and financial information (“Records”).
(d) Intellectual Property. All trademarks, trade names, service marks, internet domain names and web sites, copyrights, patents, patent applications, inventions, formulas, trade secrets, know-how, designs, processes and similar intangibles (“Intellectual Property”).
(e) Permits, Licenses. All governmental licenses, permits, variances, consents and approvals (“Governmental Permits”), and all rights under licenses to or from third parties (the “Licenses”).
(f) Purchase Commitments. All rights under purchase orders, contract commitments or sales contracts (the “Purchase Commitments”).
(g) Contract Rights, Etc. All (i) rights to any deposits or prepayments to suppliers; (ii) causes of action, judgments, claims and demands of Selling Parties related to the Business; (iii) rights associated with any Assumed Liability; (iv) restrictive covenants and other obligations of present and former employees.
EXHIBIT 2
EARNOUT
EXHIBIT 3
REPRESENTATIONS AND WARRANTIES BY THE SELLING PARTIES AND THE SHAREHOLDERS
Each of the Selling Parties and each of the Shareholders, jointly and severally, make the following representations and warranties to ZZZ:
3.1 Organization; Authority. The Selling Parties are business entities duly organized, validly existing and in good standing under the laws of their respective places of organization. The organizational chart attached as Schedule 3.1 lists the full legal names of each of the Selling Parties and the names of all shareholders of the Selling Parties and their ownership interests stated as a percentage. Schedule 3.1 also lists all other business entities and persons who are in any manner affiliated with any of the Selling Parties or Shareholders, or who otherwise have participated in the development or management of the Business. The Agreement and all related agreements and documents have been duly authorized by the Selling Parties and Shareholders, and constitute the legal, valid and binding obligations of the Selling Parties and the Shareholders, enforceable against such persons in accordance with their terms. Neither this Agreement nor the transactions hereunder: (a) require any consent or approval of any person, entity or government authority; (b) contravene any bylaws or other organizational documents of the Selling Parties; (c) violate or breach any contract, commitment, license or permit; or (d) provide a basis for imposition of any lien, charge or encumbrance on the Business or the Assets.
3.2 Financial Statements, Obligations and Liabilities. The Selling Parties have provided certain accounting and financial information to ZZZ, including financial statements (the “Financial Information”). All Financial Information is accurate, true and correct, and complete, with no omissions that might cause any of the Financial Information to be misleading to ZZZ. All financial statements provided to ZZZ are attached as Schedule 3.2. Such financial statements: (i) were prepared in the ordinary course of business from the regular financial books and records of the Sellers in accordance with Chinese generally accepted accounting principles, with exceptions to US GAAP (“GAAP”), consistently followed throughout the periods indicated (provided that unaudited statements are subject to normal year end adjustments not material in amount or effect), (ii) accurately reflect the transactions, assets, liabilities, earnings and other results of operations of the Sellers, and (iii) are complete and correct. There is no debt, liability or obligation of or relating to the Business or the Assets (whether accrued, absolute, contingent, by guarantee, indemnity or otherwise), nor has there been any occurrence which involves potential liability related to the Business or the Assets, except as specifically disclosed in the financial statements in Schedule 3.2.
3.3 Absence of Certain Events. During the past twelve months: (i) the Selling Parties have conducted the Business only in the ordinary and usual course and in substantially the same manner as previously conducted; (ii) there has not been any event or circumstance that had, or is reasonably likely to have, a material adverse effect on the financial condition, business, cash flow, assets, liabilities or prospects of the Business.
3.4 Taxes. The Selling Parties and Shareholders have timely and properly filed all Tax returns and paid all Taxes. There are no disputes as to Taxes or any actual or potential Tax liens on any Assets or the Business. There is no legal proceeding, audit, assessment, or request for information, pending or threatened, relating to any matters which could result in claims for additional taxes related to the Assets or the Business. “Tax” or “Taxes” means all taxes or liens, including any interest, fines, penalties, or other additions to tax, including without limitation all income and profits taxes, payroll and employee withholding taxes, capital taxes, unemployment insurance premiums, pension premiums and other governmental charges, goods and services taxes, sales and use taxes, value-added taxes, excise taxes, import and custom duties, franchise and business taxes, ad valorem taxes, and all other forms of tax or governmentally mandated payments or withholdings. To the extent that law or regulation may require notices by the Selling Parties or Shareholders to any Tax authority regarding sale of the Assets or the Business, the Selling Parties and Shareholders have timely given all such notices. All Taxes, if any, payable in connection with the sale of the Assets and the Business have been or will be paid by the Selling Parties and Shareholders on a timely basis, and neither ZZZ nor the Assets will be subject to any claims or liens for any Taxes that the Selling Parties or Shareholders may owe in connection with
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