AMENDMENT TO THE SHARE PURCHASE AND SUBSCRIPTION AGREEMENT
Exhibit
4.75
AMENDMENT
TO THE SHARE PURCHASE AND SUBSCRIPTION AGREEMENT
This AMENDMENT TO THE SHARE PURCHASE AND
SUBSCRIPTION AGREEMENT (this “Agreement”) is entered into on
December 22, 2007 by and among the following Parties:
A. Ixworth Enterprises Limited, a
British Virgin Islands company (the “Purchaser”);
B. Beijing Ninetowns Network and
Software Co., Ltd., a wholly foreign-owned enterprise established under
the laws of the PRC (the “WFOE”);
C. Mr. Fan Xxx Xxxx (“Mr. Fan”);
D. Xxx Xxxxx Limited, a British
Virgin Islands company (“Xxx
Xxxxx”);
E. Ample Spring Holdings Limited,
a British Virgin Islands company (the “Company”);
F. Beijing Baichuan Tongda Science and
Technology Development Co., Ltd. (北京百川同达科技发展有限责任公司), a limited liability
company formed under the laws of the PRC (“Baichuan”); and
G. Xx. Xxxx Peiji and Xx. Xxxx Xxxxx (each a “Baichuan Principal” and
collectively, the “Baichuan
Principals”).
RECITALS
WHEREAS, the Parties entered
into that certain Share Purchase and Subscription Agreement dated April 9, 2007
(the “Share Purchase and
Subscription Agreement”); and
WHEREAS, the Parties now
desire to amend the Share Purchase and Subscription Agreement.
AGREEMENT
NOW THEREFORE, in
consideration of the promises and the mutual covenants herein contained, the
Parties hereto hereby agree as follows:
ARTICLE 1
AMENDMENT.
1.1 Amendment. Article
2.24 of the Share Purchase and Subscription Agreement shall be amended and
restated in its entirety as follows:
“2.2.4 An
amount equal to RMB102,500,000 (the “Deferred Investment”) shall be
paid to the Company by the Purchaser at its sole discretion in accordance with
the capital requirements of the Company, but, in any case by no later than April
9, 2008.”
ARTICLE
2
MISCELLANEOUS.
2.1 Governing
Law. This Agreement and the Share Purchase and Subscription
Agreement shall be governed in all respects by the laws of Hong
Kong.
2.2
Survival. The
representations, warranties, covenants and agreements made herein shall survive
any due diligence investigation made by any party hereto and shall survive the
Closing.
2.3
Successors and
Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, permitted assigns, heirs, executors and administrators of the
parties hereto whose rights or obligations hereunder are affected by such
amendments. This Agreement and the Share Purchase and Subscription
Agreement and the rights and obligations herein and therein may be assigned by
the Purchaser to any Affiliate of the Purchaser. No Warrantor may
assign its rights or delegate its obligations under this Agreement or the Share
Purchase and Subscription Agreement without the written consent of the
Purchaser.
2.4
Entire
Agreement. This Agreement and the Share Purchase and
Subscription Agreement and the schedules and exhibits thereto and the
Transaction Agreements, which are hereby expressly incorporated herein by this
reference, constitute the entire understanding and agreement between the parties
with regard to the subjects hereof and thereof.
2.5
Notices. Except
as may be otherwise provided herein, all notices, requests, waivers and other
communications made pursuant to this Agreement and the Share Purchase and
Subscription Agreement shall be in writing and shall be conclusively deemed to
have been duly given (i) when hand delivered to the other party; (ii) when sent
by facsimile at the number set forth in the Share Purchase and Subscription
Agreement, upon a successful transmission report being generated by the sender’s
machine; or (iii) three (3) Business Days after deposit with an
internationally-recognized overnight delivery service, postage prepaid,
addressed to the parties as set forth in Exhibit B of the
Share Purchase and Subscription Agreement with next-business-day delivery
guaranteed, provided that the sending party receives a confirmation of delivery
from the delivery service provider. Each person making a
communication hereunder or thereunder by facsimile shall promptly confirm by
telephone to the person to whom such communication was
addressed
each communication made by it by facsimile pursuant hereto but the absence of
such confirmation
shall not affect the validity of any such communication. A party may
change or supplement the addresses given in the Share Purchase and Subscription
Agreement, or designate additional addresses, for purposes of this Section 2.5
by giving the other party written notice of the new address in the manner
set forth above.
2.6 Amendments and
Waivers. This Agreement and the Share Purchase and
Subscription Agreement may be amended only with the prior written consent of the
Purchaser and the Baichuan Principals.
2.7
Delays or
Omissions. No delay or omission to exercise any right, power
or remedy accruing to any party upon any breach or default of any other party
hereto under this Agreement or the Share Purchase and Subscription
Agreement, shall impair any such right, power or remedy of the aggrieved party
nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of any similar breach of default thereafter occurring;
nor shall any waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach of default under this Agreement
or the Share Purchase and Subscription Agreement or any waiver on the part of
any party of any provisions or conditions of this Agreement or the Share
Purchase and Subscription Agreement, must be in writing and shall be effective
only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or the Share Purchase and Subscription
Agreement, or by law or otherwise afforded to the parties shall be cumulative
and not alternative.
2.8
Interpretation; Titles and
Subtitles. This Agreement and the Share Purchase and
Subscription Agreement shall be construed according to their fair
language. The rule of construction to the effect that ambiguities are
to be resolved against the drafting party shall not be employed in interpreting
this Agreement or the Share Purchase and Subscription
Agreement. The titles of the sections and subsections of this
Agreement and the Share Purchase and Subscription Agreement are for convenience
of reference only and are not to be considered in construing this Agreement and
the Share Purchase and Subscription Agreement.
2.9 Counterparts. This
Agreement and the Share Purchase and Subscription Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
2.10
Severability. Should
any provision of this Agreement or the Share Purchase and Subscription Agreement
be determined to be illegal or unenforceable, such determination shall not
affect the remaining provisions of this Agreement and the Share Purchase and
Subscription Agreement.
2.11
Pronouns. All
pronouns and any variations thereof are deemed to refer to the masculine,
feminine, neuter, singular or plural, as the identity of the Person or Persons
may require.
2.12
Dispute
Resolution. Any dispute,
controversy or claim arising out of or relating to this Agreement and the Share
Purchase and Subscription Agreement, or the breach,
termination
or invalidity thereof, shall be settled by arbitration in accordance with the
UNCITRAL arbitration rules then in effect. The appointing authority shall be
Hong Kong International Arbitration Centre (“HKIAC”). The place of
arbitration shall be in Hong Kong at HKIAC. There shall be three
(3) arbitrators. The language to be used in the arbitral proceedings
shall be English. Any such arbitration shall be administered by HKIAC
in accordance with HKIAC procedures for arbitration in force at the date of this
Agreement or the Share Purchase and Subscription Agreement including such
additions to the UNCITRAL arbitration rules as are therein
contained.
[Signature
Page to Follow]
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on the day and year herein above
first written.
|
Ixworth
Enterprises Limited
By:
/s/ Xxxx
Xxxxxx
Name:
Xx. Xxxx Shuang
Title: Director
|
Fan
Xxx Xxxx
/s/
Fan Xxx
Xxxx
|
|
Beijing
Ninetowns Network and
Software Co., Ltd. By:
/s/ Ng Kin
Fai
Name:
Xx. Xx Kin Fai
Title: Director
|
Xxx
Xxxxx Limited
By:
/s/ Fan Xxx
Xxxx
Name:
Mr. Fan Xxx Xxxx
Title: Director
|
|
Xxxx
Xxxxx
/s/ Xxxx
Xxxxx
|
Ample
Spring Holdings Limited
By:
/s/ Fan Xxx
Xxxx
Name:
Mr. Fan Xxx Xxxx
Title: Director
|
|
Xxxx
Xxxxx
/s/
Xxxx
Xxxxx
|
Beijing
Baichuan Tongda Science and
Technology Development Co., Ltd. (北京百川同达科技发展有限公司)
By:
/s/ Xxxx
Xxxxx
Name:
Xx. Xxxx Peiji
Title: Director
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[Signature Page of
Amendment to the Share Purchase and Subscription Agreement]
