xny_ex994.htm

EX-99.4 5 xny_ex994.htm SHARE TRANSFER AGREEMENT xny_ex994.htm

EXHIBIT 99.4

SHARE TRANSFER AGREEMENT

This SHARE TRANSFER AGREEMENT (this “Agreement”), is entered into as of December 10, 2017, between China Xiniya Fashion Limited (“XNY”), an exempted company incorporated under the laws of the Cayman Islands, as the seller, and Qiming Investment Limited (“Qiming Investment”), a British Virgin Islands company, as the purchaser. XNY and Qiming Investment are individually referred to herein as a “Party” and collectively, the “Parties”.

WHEREAS, as of the date of this Agreement and immediately prior to the Closing (as defined below), Qiming Xu (“Mr. Xu”), the chairman, chief executive officer and controlling shareholder of XNY, holds one ordinary share of Qiming Investment, representing 100% of the issued and outstanding share capital of Qiming Investment;

WHEREAS, as of the date of this Agreement and immediately prior to Closing, Qiming Investment is the registered holder of 134,359,960 ordinary shares, par value US$0.00005 per share, representing approximately 59% of the issued and outstanding share capital of XNY;

WHEREAS, XNY owns 100 ordinary shares of Xiniya Holdings Limited (“XNY HK”), a company incorporated in Hong Kong, representing 100% of the equity interest in XNY HK (“Xiniya HK Shares”);

WHEREAS, Qiming Investment and certain other parties entered into a Share Purchase Agreement on July 17, 2016, as amended by that certain Amendment No. 1 to the Share Purchase Agreement on October 27, 2016 (the “Share Purchase Agreement”), pursuant to which, Qiming Investment agrees to sell to the purchasers under the Share Purchase Agreement, a total number of 114,996,929 ordinary shares of XNY for an aggregate purchase price of RMB86,426,661;

WHEREAS, the closing of the transactions under the Share Purchase Agreement is conditioned on, among others, that XNY’s board of directors and shareholders, to the extent XNY’s board submits the transaction for the shareholders’ approval, have approved the sale of XNY HK to Mr. Xu or his designee(s) on terms and conditions set forth herein (the “Transaction”);

WHEREAS, as of the date of this Agreement, XNY, True Silver Limited (“True Silver”), a British Virgin Islands company, and Honest Plus Investments Limited (“Honest Plus”), a British Virgin Islands company, entered into a securities purchase agreement (the “Securities Purchase Agreement”) pursuant to which XNY has agreed to purchase the entire share capital of True Silver from Honest Plus, subject to the terms and conditions set forth therein; and

WHEREAS, the board of directors of XNY (the “Board”) has approved the Transaction on December 10, 2017.

NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants hereinafter set forth, the Parties hereto agree as follows:

1. Transferred Shares. Subject to the terms and conditions set forth herein, XNY hereby agrees to sell, assign, transfer, convey and deliver to Qiming Investment, and Qiming Investment hereby agrees to acquire and accept, the Xiniya HK Shares, effective as of the Closing, without any representation, warranty, recourse or covenant of any kind or nature whatsoever, each of which are expressly disclaimed by each of the Parties. The transfer includes all rights and obligations attached to the Xiniya HK Shares as of the date hereof.

2. Share Purchase Price. In consideration for the sale and transfer of the Xiniya HK Shares, Qiming Investment agrees to pay to XNY US$34,588,428.05 (approximately RMB228,000,000.00, calculated at an exchange rate of U.S. dollar into RMB of 6.5918 as quoted by the U.S. Fed - Foreign Exchange Rate as of August 31, 2017) (the “Purchase Price”) in cash at the Closing.

3. Closing. Subject to the terms and conditions of this Agreement, the purchase and sale of the Xiniya HK Shares as contemplated by this Agreement shall occur on a date and at a place as agreed to by the Parties (the “Closing”), subject to the satisfaction at or prior to the Closing, of each of the following conditions:

(a) The transactions contemplated under the Share Purchase Agreement and the Securities Purchase Agreement shall be consummated substantially concurrently with the Closing;

(b) the Board and the shareholders of XNY (the “Shareholders”), to the extent the Board submits the Transaction to the Shareholders for approval, shall have approved the Transaction and the other transactions contemplated under the Share Purchase Agreement and the Securities Purchase Agreement;

(c) XNY shall have received approval from the NYSE, to the extent required, for the purpose of consummation of the Transaction and the other transactions contemplated under the Share Purchase Agreement and the Securities Purchase Agreement;

(d) There shall have been no orders, injunctions or decrees by any court of competent jurisdiction or governmental authority prohibiting the consummation of the Transaction or other transactions under the Share Purchase Agreement and the Securities Purchase Agreement; and

(e) There shall have been no Law (as defined in the Securities Purchase Agreement) in effect which prohibits, enjoins or making illegal the consummation of the Transaction or other transactions under the Share Purchase Agreement and the Securities Purchase Agreement.

4. Closing Deliveries. At the Closing,

(a) XNY shall deliver to Qiming Investment (i) a written instrument of transfer and sold note in respect of the Xiniya HK Shares duly executed by XNY, and (ii) the share certificate(s) representing the Xiniya HK Shares; and

(b) Qiming Investment shall deliver to XNY the Purchase Price in immediately available funds to an account designated by XNY.

5. Filing.

(a) Immediately after the Closing, Qiming Investment shall submit (i) the original instruments of transfer, (ii) the transfer and sold note and (iii) the transfer and bought note to the Hong Kong Inland Revenue Department for adjudication of stamp duty.

(b) XNY shall reasonably co-operate to provide such other information as may be required in order to enable the relevant documents to be submitted for stamping. Upon the presentation of the duly stamped originals of the documents above, the Parties shall cause XNY HK to update its register of members to reflect Qiming Investment as the sole owner of all issued and outstanding shares of XNY HK.

6. Representation and Warranties of XNY. XNY represents and warrants to Qiming Investment as follows:

(a) Organization and Qualification. XNY is a company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands, with the requisite corporate power and authority to carry on its business as it is now being conducted and to own, operate and lease its properties and assets, and is duly qualified or licensed to do business as a foreign corporation in good standing in every other jurisdiction in which the character or location of the properties and assets owned, leased or operated by it or the conduct of its business requires such qualification or licensing.

(b) Corporate Power and Authority. XNY has the corporate power and authority to execute, deliver and perform this Agreement and the other documents and instruments contemplated hereby. The execution, delivery and performance of this Agreement and the documents contemplated hereby and the consummation of the transactions contemplated hereby and thereby have been duly authorized and approved by XNY. This Agreement and each of the other agreements, documents and instruments to be executed and delivered by XNY have been duly executed and delivered by, and constitute the legal, valid and binding obligation of, XNY enforceable against XNY in accordance with their terms.

(c) Validity, Etc. To the knowledge of XNY, neither the execution and delivery of this Agreement and the other documents and instruments contemplated hereby, the consummation of the transactions contemplated hereby or thereby nor the performance of this Agreement and such other agreements in compliance with the terms and conditions hereof and thereof will (i) violate, conflict with or result in any material breach of any trust agreement, charter, judgment, decree, order, statute or regulation applicable to XNY, (ii) require any consent, approval, authorization or permit of, or filing with or notification to, any governmental or regulatory authority (other than the consent, approval, authorization or permit of, or filing with or notification to, any governmental or regulatory authority that have been received or are contemplated to be received under this Agreement and the other documents and instruments contemplated hereby) or (iii) violate, conflict with or result in a breach, default or termination of, or give rise to any right of termination, cancellation or acceleration of the maturity of any payment date of, any of the obligations of XNY.

7. Representation and Warranties of Qiming Investment. Qiming Investment represents and warrants to XNY as follows:

(a) Organization. Qiming Investment is a corporation duly organized, validly existing and in good standing under the laws of British Virgin Islands, with the requisite corporate power and authority to carry on its business as it is now being conducted and to own, operate and lease its properties and assets, and is duly qualified or licensed to do business as a foreign corporation in good standing in every other jurisdiction in which the character or location of the properties and assets owned, leased or operated by it or the conduct of its business requires such qualification or licensing.

(b) Corporate Power and Authority. Qiming Investment has the corporate power and authority to execute, deliver and perform this Agreement and the other documents and instruments contemplated hereby. The execution, delivery and performance of this Agreement and the documents contemplated hereby and the consummation of the transactions contemplated hereby and thereby have been duly authorized and approved by Qiming Investment. This Agreement and each of the other agreements, documents and instruments to be executed and delivered by Qiming Investment Construction have been duly executed and delivered by, and constitute the valid and binding obligation of Qiming Investment enforceable against Qiming Investment in accordance with their terms.

(c) Validity, Etc. To the knowledge of Qiming Investment, neither the execution and delivery of this Agreement and the other documents and instruments contemplated hereby, the consummation of the transactions contemplated hereby or thereby nor the performance of this Agreement and such other agreements in compliance with the terms and conditions hereof and thereof will (i) violate, conflict with or result in any material breach of any trust agreement, charter, judgment, decree, order, statute or regulation applicable to XNY, (ii) require any consent, approval, authorization or permit of, or filing with or notification to, any governmental or regulatory authority authority (other than the consent, approval, authorization or permit of, or filing with or notification to, any governmental or regulatory authority that have been received or are contemplated to be received under this Agreement and the other documents and instruments contemplated hereby) or (iii) violate, conflict with or result in a breach, default or termination of, or give rise to any right of termination, cancellation or acceleration of the maturity of any payment date of, any of the obligations of XNY.

8. Indemnification; No Claims.

(a) Except as expressly provided in this Agreement, none of the Parties, their affiliates or any of their respective representatives makes any representation or warranty in this Agreement, express or implied, at law or in equity, to the other Party.

(b) Other than as provided in Section 8(c) below, from and after the Closing, Qiming Investment, and its successors and assigns (each an “Indemnifying Party”), jointly and severally, shall indemnify, defend and hold harmless XNY and their respective Affiliates, officers, directors, employees, and agents and its successors and assigns (each an “Indemnified Party”) from and against any losses, claims, damages, liabilities, settlement, costs and expenses, including, without limitation, reasonable attorneys’ fees, investigation cost, experts’ and accountants’ fees (collectively, the “Losses”) resulting from, imposed upon, incurred or suffered by any of them, directly or indirectly, based upon, arising out of or otherwise in respect of the operation of XNY HK and its subsidiaries’ business prior to the Closing.

(c) From and after the Closing, the Indemnifying Parties, jointly and severally, shall indemnify, defend and hold harmless the Indemnified Parties for Losses for payment of Taxes relating to the operation of XNY HK and its subsidiaries’ business prior to and after the Closing (except to the extent that such Taxes are reflected in the 2017 first half financial results filed with the 6-K of XNY dated August 29, 2017), which Losses shall equal to the amount of such Taxes actually paid or payable in connection with the operation of XNY HK and its subsidiaries’ business, and taking into account reductions for the aggregate amount of Tax credits, refunds and other Tax attributes.

For the purposes of this Section 8(c), “Tax” or “Taxes” means any and all applicable central, federal, provincial, state, local, municipal and foreign taxes, charges, levies or other assessments, including, but not limited to, income, excise, gross receipts, property, sales, use, ad valorem, transfer, franchise, profit, license, withholding, payroll, employment, severance, stamp, occupation, windfall profit, social security and unemployment or other taxes imposed by the United States or any agency or instrumentality thereof, any state, county, local or foreign government, or any agency or instrumentality thereof, together with all interest, penalties and additions imposed with respect to any such amounts and any obligations under any agreements or arrangements with any other person with respect to any such amounts.

(d) Notwithstanding anything contained in this Agreement, none of the Indemnifying Parties shall be liable for indemnification of any Losses under this Section 8 unless a valid Claim Notice with respect to such Losses is given pursuant to Section 8(f) below on or prior to the earlier of (a) April, 30, 2019, and (b) the date on which the Form 20-F of XNY for its fiscal year 2018 is first filed with the SEC (such earlier date, the “Limitation Date”) (other than Losses based upon, arising out of or otherwise resulting from Section 8(c) above, in which event the Indemnifying Parties shall not be released from their indemnification obligations hereunder solely as a result of any Claim Notice with respect to such Losses being given after the Limitation Date).

(e) Notwithstanding anything to the contrary contained in this Agreement, except with respect to claims relating to indemnification of Taxes set forth in Section 8(c) above: (a) an Indemnifying Party shall not be liable for any claim for indemnification pursuant to this Section 8, unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Indemnifying Party equals or exceeds US$30,000, after which the Indemnifying Party shall be liable only for those Losses in excess of US$30,000; and (b) the maximum aggregate amount of indemnifiable Losses which may be recovered from all Indemnifying Parties arising out of or resulting from the causes set forth in this Section 8 of this Agreement and Article 9 of the Securities Purchase Agreement (other than any indemnifiable Losses in connection with (i) any inaccuracy in or breach of any representation and warranty of XNY set forth in Section 3.27 of the Securities Purchase Agreement, or (ii) payment of Taxes resulting from any inaccuracy in or breach of any representation and warranty of XNY set forth in Section 3.28 of the Securities Purchase Agreement, which Losses shall equal to the amount of such Taxes actually paid and taking into account reductions for the aggregate amount of Tax credits, refunds and other Tax attributes) shall not exceed the U.S. dollar equivalent of RMB12,000,000 (calculated by reference to the central parity rate as quoted by the People’s Bank of China as of the date of each indemnification payment). The provisions of this Section 8(e) shall not apply with respect to indemnification (i) for Taxes provided in Section 8(c) above, in which case, the Losses shall equal to the amount of such Taxes actually paid or payable in connection with the operation of XNY HK and its subsidiaries’ business, and taking into account reductions for the aggregate amount of Tax credits, refunds and other Tax attributes, or (ii) in the case of fraud or willful misconduct on the part of the Indemnifying Parties.

Notwithstanding anything to the contrary, an Indemnified Party shall not be entitled to recover Losses pursuant to a claim of indemnification under both the Securities Purchase Agreement and this Agreement for the same facts that give rise to the right of indemnification, and all indemnifiable Losses covered under this Agreement shall be net of any indemnity, contribution or similar proceeds that have been recovered by the Indemnified Party in connection with the facts giving rise to the right of indemnification under the Securities Purchase Agreement. Notwithstanding anything contained in this Agreement, in no event shall any Indemnified Party be entitled to recover or make a claim for any amounts in respect of, and in no event shall “Losses” be deemed to include, consequential (including lost profits), incidental or indirect damages, or punitive, special or exemplary damages.

(f) An Indemnified Party seeking indemnification pursuant to this Section 8 shall give prompt notice (the “Claim Notice”) to the Indemnifying Party from whom such indemnification is sought of the assertion of any Losses, or the commencement of any action, claim, suit, investigation or proceeding (the “Proceeding”) (including any Third Party Claim), in respect of which indemnity is or may be sought hereunder and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such notice shall not relieve the Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has suffered actual prejudice thereby).

(g) The Indemnifying Party shall be entitled to assume control of the negotiation, settlement and defense of any Proceeding involving a third party (a “Third Party Claim”) that is reasonably expected to give rise to an indemnification obligation of the Indemnifying Party under this Section 8, at its own expense through counsel of its choice reasonably acceptable to the Indemnified Party. In such case the Indemnified Party shall have the right (but not the duty) to participate in the defense thereof, and to employ counsel, at its own expense, separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof. The Parties hereto shall reasonably cooperate in the defense or prosecution thereof and shall furnish, or cause to be furnished, such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall not, without the written consent of the Indemnified Party (not to be unreasonably withheld, delayed or conditioned), (a) settle or compromise any Third Party Claim or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such Third Party Claims, (b) settle or compromise any Third Party Claim that involves any injunctive, equitable or other non-monetary relief or requires an Indemnified Party to admit liability or wrongdoing or (c) settle or compromise any Third Party Claim that would result in any payment of monetary damages by any Indemnified Party.

(h) The Indemnifying Party shall not be liable under this Section 8 for any settlement in respect of a Third Party Claim effected without its consent (which consent shall not be unreasonably withheld, delayed or conditioned) of any Proceedings in respect of which indemnity may be sought hereunder, unless the Indemnifying Party fails to promptly acknowledge liability for indemnification under this Section 8 and/or declines to or otherwise fails to timely defend the Indemnified Party in such Proceeding relating to such Third Party Claim.

(i) Following the Closing, indemnification pursuant to the provisions of this Section 8 shall be the sole and exclusive remedies of the Indemnified Parties for any Losses resulting from, imposed upon, incurred or suffered by any of them, directly or indirectly, based upon, arising out of or otherwise in respect of the operation of XNY HK and its subsidiaries’ business prior to the Closing, and the Parties shall not be entitled to a rescission of this Agreement or to any further indemnification or other rights or claims of any nature whatsoever (including under statute, regulation, common law, in equity or for negligence) in respect thereof, all of which each Party hereby waives to the fullest extent permitted by law.

9. Use of Name. The Parties hereby covenant and agree that XNY shall have the right, but not the obligation, to continue to use the name “China Xiniya Fashion Limited” and the trading symbol “XNY” for so long it deems necessary until it changes its name to reflect the micro lending business.

10. Cooperation. Qiming Investment agrees to retain all books, records, financial statements, returns, documents, files, other information (including, without limitation, working papers and schedules for XNY HK and its subsidiaries for the last five (5) calendar years prior to the Closing (“Records”). Each Party agrees to cooperate with and give the other Party and its agents access to internal records upon reasonable written notice by the other Party in the event of any suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other governmental authority or any arbitrator or arbitration panel.

11. Termination. This Agreement shall terminate immediately upon the earlier of the termination of the Share Purchase Agreement and/or the termination of the Securities Purchase Agreement. Upon termination, except for Section 10, Section 12, Section 13, Section 14, Section 15, Section 16, Section 17, Section 18, Section 19, Section 20 and this Section 11, which shall survive such termination, this Agreement shall forthwith become void and there shall be no liability on the part of any Party.

12. Expenses. All costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the Transaction contemplated by this Agreement shall be borne by the Party incurring such costs and expenses.

13. Headings and References; Construction. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. When a reference is made in this Agreement to a section, such reference is to a section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement. References to a “person” are also to its successors and permitted assigns. The use of “or” is not intended to be exclusive unless expressly indicated otherwise.

14. Severability. If any term or provision of this Agreement is invalid, illegal or incapable of being enforced by virtue of any rule of law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the Transaction contemplated by this Agreement is not affected in any manner materially adverse to either Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the Transaction contemplated by this Agreement is consummated as originally contemplated to the greatest extent possible.

15. Entire Agreement. This Agreement, the Share Purchase Agreement and the Securities Purchase Agreement constitute the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, between the Parties with respect to the subject matter hereof.

16. Assignment. This Agreement may not be assigned by operation of law or otherwise without the express written consent of the other Party (which consent may be granted or withheld in the sole discretion of such Party) and any attempted assignment without such consent shall be null and void.

17. Amendment. This Agreement may not be amended or modified except by an instrument in writing signed by, or on behalf of, each of the Parties.

18. No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

19. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of Hong Kong without regard to the conflicts of law principles thereof. The Parties expressly agree that any and all disputes arising out of or in connection with this Agreement will be resolved only in accordance with the dispute resolution provisions of the Share Purchase Agreement which are incorporated by reference and shall apply to the terms of this Agreement and the parties hereto mutatis mutandis.

20. Survival of Representations, Warranties and Covenants. Subject to Section 8(d), all of the representations, warranties and covenants in this Agreement shall survive the Closing.

21. Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or pdf) in two or more counterparts, and by the Parties in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.

CHINA XINIYA FASHION LIMITED

By:
/s/

Name:

Alvin Ang

Title:

Director

QIMING INVESTMENT LIMITED

By:

/s/

Name:

Qiming Xu

Title:

Director

[Signature Page to the Share Transfer Agreement]

	CHINA XINIYA FASHION LIMITED

	By:	/s/
	Name:	Alvin Ang
	Title:	Director