陈述和保证 - 资产收购协议 (英文版)

REPRESENTATIONS AND WARRANTIES

FOR AN ASSET PURCHASE AGREEMENT

TABLE OF CONTENTS

1.REPRESENTATIONS AND WARRANTIES OF THE VENDOR AND THE PRINCIPAL 1

1.1Representations and Warranties (1)

(a)Corporate (1)

(b)Authorization of Agreement (2)

(c)Property (2)

(d)Leases of Real Property (3)

(e)Title to Purchased Assets (4)

(f)Rights to Acquire Purchased Assets (4)

(g)Leases of Personal Property (5)

(h)Contracts (5)

(i)Intellectual Property. (5)

(j)Location of Assets (6)

(k)Equipment (6)

(l)Inventories (6)

(m)Accounts Receivable (7)

(n)Insurance (7)

(o)Sufficiency of Assets (7)

(p)Financial Statements (7)

(q)Books and Records (8)

(r)Material Change (8)

(s)Taxes (10)

(t)Employment Matters. (10)

(u)Validity of Transactions (11)

(v)Compliance with Laws (11)

(w)Litigation (12)

(x)Environmental Claims (12)

(y)Truth and Accuracy of Schedules (13)

(z)Disclosure (13)

2.REPRESENTATIONS AND WARRANTIES OF THE PURCHASER (14)

2.1Representations and Warranties (14)

(a)Corporate (14)

(b)Authorization of Agreement (14)

(c)Validity of Transactions (14)

2.2Non-Waiver (15)

2.3Nature and Su rvival of Vendor’s Representations and Warranties (15)

2.4Survival of Purchaser’s Representations and Warranties (15)

ASSET PURCHASE

REPRESENTATIONS AND WARRANTIES

1.REPRESENTATIONS AND WARRANTIES OF THE VENDOR AND THE

PRINCIPAL

The obligations of the Principal are joint and several with the Vendor. Alternatively, the Principal’s obligations could be contained in a guarantee agreement to be delivered at Closing. In such case, representations of the Guarantor should be included therein including its due incorporation and corporate power and authority to deliver the Guarantee Agreement and any other representations and warranties deemed to be appropriate.

If acting for the Vendor, many of these representations and warranties should be qualified by “materiability” and “best-of-knowledge” qualifications. If the Vendor’s counsel insists on a materiability qualification, that qualification should be restricted to relate to specific factual representations, as opposed to having the Vendor responsible for only material liabilities.

Also consider adding “after due inquiry” on certain representations if acting for the Vendor.

1.1Representations and Warranties

The Vendor and the Principal hereby jointly and severally make the following representations and warranties and acknowledges that the Purchaser is relying on such representations and warranties in entering into this Agreement and in purchasing the Purchased Business and the Purchased Assets from the Vendor:

(a)Corporate

The Vendor is a corporation duly incorporated and organized and is validly existing

under the laws of the People’s Republic of China. The Vendor has the requisite

corporate power and authority to own or lease its property and to carry on the

Purchased Business and to sell the Purchased Assets to the Purchaser and otherwise

perform its obligations pursuant to this Agreement. The Vendor has made all filings

and registrations under all applicable laws and is duly qualified as a corporation to

carry on business, and is in good standing, in each jurisdiction in which the nature of

the Purchased Business, or the property owned or leased by the Vendor makes such

qualification necessary. If the Purchased Assets were to include shares of material

subsidiary corporations, representations regarding the corporate authority of such

subsidiaries to carry on their business should be included. Many of the

representations characteristic of share purchase transactions may also be appropriate,

such as representations regarding validity of transactions, consent to transactions

generally, licensing in all jurisdictions, absence of pre-emptive subscription rights,

absence of options to purchase assets or shares of such subsidiaries, and absence of guarantees given by such subsidiaries.

If acting for the Vendor, it may be appropriate to replace “validly existing” with “has not been dissolved” if the contents of the opinion of the Vendor’s counsel is directly tied to specific representations and warranties.

(b)Authorization of Agreement

This Agreement has been duly authorized, executed and delivered by the Vendor and constitutes a valid and binding obligation of the Vendor, enforceable against it in accordance with its terms.

(c)Property

(i)Real Properties

The Vendor has owned or leased the real properties in compliance with all

applicable laws. The Vendor is duly licensed, registered or qualified and

duly possesses all licenses, permits, quotas and approvals (the “Real

Properties Licenses”) to enable the real properties to be owned or leased as

now conducted in compliance with the applicable laws. The Real Properties

Licenses are described in Schedule [ ]. The Real Properties Licenses are

valid and subsisting and in good standing and there has been no violation in

respect thereof. The Real Properties Licenses are transferable to the

Purchaser pursuant to this Agreement except to the extent set out in Schedule

[ ]. There are no material limitations or restrictions on the possession or

lease of the real properties by the Vendor.

(ii)Other Tangible Assets

All of the other tangible assets, including but not limited to machinery,

equipment, vehicles, furniture, office equipment, computer hardware and

software wherever situate and owned by the Vendor is set out in Schedule

[ ], and except as set out in Schedule [ ] all of the foregoing assets are

owned free and clear of all Encumbrances.

(iii)Intellectual Properties