EXHIBIT 4.41
SHARE DISPOSITION AGREEMENT
THIS SHARE DISPOSITION AGREEMENT (this "Agreement") is entered into by and among
the following parties (the "Parties") in Beijing, People's Republic of China
("PRC") on January 28, 2006.
PARTY A: ANJIAN XINGYE TECHNOLOGY (BEIJING) COMPANY LIMITED
Address: Xxxx X000, xxxxx xxxx Xx. 00, west ring of Beijing Economy
& Technology Development Area
Legal Representative:
PARTY B: WANG GUIJUN
Address: X00, Xx Xx Xx Xxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxx
PARTY C: XX XXXX
Address: Xx. 000 Xxxxxxxx 000, Xxxxx An Men Wai Avenue, Xuanwu
District Beijing
WHEREAS
1. Party A is a wholly foreign-owned enterprise registered in the PRC.
2. Beijing Xinrui Network Technology Company Limited ("Xinrui Network") is a
limited liability company registered in the PRC and licensed by relevant
government authorities to hold a Telecommunications Value-added Service
Operation Permit, which qualifies it to engage in telecommunications
value-added service.
3. Party B and Party C are shareholders of Xinrui Network ("Authorizing
Party") and own 51% and 49% equity interest in Xinrui Network.
1. GRANT OF THE OPTION
1.1 Grant
All parties of this Agreement agree that as this Agreement is executed,
Party A has an exclusive option. Pursuant to the condition stipulated in
this Agreement, Party A or its designated third
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party is entitled to purchase the option owned by the Authorizing Party of
all the shares in Xinrui Network at the lowest price permitted by PRC laws.
Party A is granted the said option after the execution of this Agreement
and the granted option is irrevocable during the term of this Agreement.
1.2 Term
This Agreement shall take effect as of the date of execution by the parties
hereto and shall remain in full force and effect until all of the equity
interests held by the Shareholders of Xinrui Network in Xinrui Network have
been purchased by Party A with the permission of PRC laws.
2. EXERCISE OF THE OPTION AND ITS CLOSING
2.1 Timing of Exercise
2.1.1 The Authorizing Party agree unanimously that with the permission of
PRC laws and regulations, Party A may exercise part or full option
anytime during the term of this Agreement.
2.1.2 The Authorizing Party agree unanimously that there is no limitation
on the times for Party A to exercise its option, unless Party A has
purchased all of the equity interests in Xinrui Network.
2.1.3 The Authorizing Party agree unanimously that Party A may designate in
its sole discretion any third party to exercise the options on its
behalf, in which case Party A shall provide a prior written notice to
the Authorizing Party.
2.2 Presentation of the amount for the options
The Authorizing Party agree unanimously that Party A will present all the
amount by exercising the options by Party A to Xinrui Network free of
charge.
2.3 Transfer
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The Authorizing Party agree unanimously that the options of Party A under
this Agreement may be transferred to a third party, which shall be deemed
as a party to this Agreement and is entitled to exercise the options under
terms of this Agreement, to enjoy the rights assume the obligations of
Party A under this Agreement.
2.4 Notice Requirement
To exercise an Option, Party A shall send an written notice to the
Authorizing Party of such Option is to be exercised 10 days prior to each
closing date (as defined below), specifying the following:
2.4.1 The date of the effective closing of such purchase (a "Closing
Date");
2.4.2 the name of the person in which the Equity Interests shall be
registered;
2.4.3 the amount of Equity Interests to be purchased from such Authorizing
Party;
2.4.4 means of payment; and
2.4.5 a power of attorney (applicable if a third party has been designated
to exercise the Option)
The Authorizing Party agree unanimously that Party A is entitled to
exercise the Options and elect to register the Equity Interests in the name
of a third party as it may designates from time to time.
2.5 Transfer the Purchased Shares
When Party A exercises the option:
(1) Party B and Party C shall instruct Xinrui Network to hold shareholders
meeting timely; a resolution of approving Party B and Party C to
transfer their shares in Xinrui Network to Party A and/or designated
third party shall be passed on the shareholders meeting;
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(2) Party B and Party C shall conclude with Party A (or designated third
party of Party A in proper circumstances) a share transfer agreement,
which is Exhibit 1 hereto simultaneously upon signing this Agreement;
(3) All relevant parties shall sign all the other contracts, agreement or
documents. All the necessary permits and approvals from authorities
shall be obtained. All actions shall be taken. Party B and Party C
shall transfer the ownership of the purchased share to Party A and/or
its designated third party without any mortgage to any third party,
make Party A and/or its designated third party to be the registered
owner of the purchased share, and provide updated business license,
permit certificate and other relevant documents issued from Chinese
authorities, which reflect the change of shareholder, directors and
legal representative.
3. REPRESENTATIONS AND WARRANTIES
3.1 The Authorizing Party hereby present and warrant as follows:
3.1.1 They have the full power and authority to enter into and perform this
Agreement;
3.1.2 The fulfilling of the obligations hereunder does not violate any
applicable laws, regulations and contracts, or require any government
authorization or approval;
3.1.3 There is no lawsuit, arbitration or other legal or administrative
procedures pending which, based on its knowledge, will possibly have
material and adverse affects on the performance of this Agreement;
3.1.4 They have disclose to Party A all the documents issued from
authorities, which may have material disadvantage influence on
performance of this Agreement;
3.1.5 They are not announced bankruptcy;
3.1.6 There is no any pledge, debt or other third party right on the equity
interests in Xinrui Network held by the Authorizing Party.
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3.1.7 The Authorizing Party will not set pledge, debt or other third party
rights on the equity interests in Xinrui Network and will not dispose
the same to any third party by transferring, presenting, pledging or
any other means;
3.1.8 The options granted to Party A are exclusive, and the Authorizing
Party shall not grant options or similar right to other parties in any
ways.
3.1.9 Xinrui Network's debt not exceeds [__] RMB on legal or financial
respect.
3.1.10 During the term of this Agreement, the business operated by Xinrui
Network is compliance with laws, regulations and measures & other
administrative regulations and guidelines issued by administrative
authorities of People's Republic of China; moreover, there is no any
violation of the aforesaid regulations, which will result in material
disadvantage influence on company's business operation or assets;
3.1.11 Xinrui Network has good financial and business standard and
tradition, which keep its legal existence. Xiinrui Network's business
and matters settlement is run by principle of prudence and efficiency;
all Party A's license and permit, etc for operating businesss are kept
by its utmost efforts; ensure the aforesaid license and permit will
not be canceled;
3.1.12 provide all the operation and financial materials of Xinrui Network
on Party A's request;
3.1.13 Xinrui Network shall not take the following actions when Party A (a
designated qualified third party) exercises its option of purchasing
all share or assets:
(a) sell, transfer, mortgage or by any other ways to dispose any
assets, any legal or beneficial interests of business or income
or allow to make any mortgage on the aforesaid rights and
interests (excluding those occurred in normal or daily business
or disclosed to Party A and obtained Party A's written consent).
(b) running business, which has material influence on its assets,
responsibility, operation, shares and other legal rights
(excluding those occurred in normal or
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daily business or disclosed to Party A and obtained Party A's
written consent);
(c) distribute any dividends or interests in any forms to
shareholders by any ways;
(d) without Party A's prior written consent, shall not inherit,
promise or admit any debt shall occur, but exclude (i) debt
originated from normal or daily business operation not from loan;
and (ii) those have been disclosed to Party A and obtained Party
A's written consent;
(e) without Party A's prior written consent, shall not conclude any
material contracts, excluding contracts concluded during normal
business operation(a contract, whose value exceeds 100,000 RMB,
shall be deemed as material contract);
(f) without Party A's prior written consent, shall not merger or
combine with any third parity, or purchase or invest in any third
party.
3.1.14 The shareholders of Xinrui Network shall not take the following
actions when Party A (a designated qualified third party) exercises
its option of purchasing all share or assets separately or jointly:
(a) add, change or revise Xinrui Network's Article of Association;
moreover, the said adding, change or revising will materially
influence Xinrui Network's assets, responsibility, operation,
shareholding or other legal rights (excluding increase investment
according to requirements of law);
(b) make Xinrui Network into pursuing any business, which has
material influence on Xinrui Network's assets, responsibility,
operation, shares and any other legal rights (excluding those
occurred in normal or daily business or disclosed to Party A and
obtained Party A's written consent);
(c) make Xinrui Network into pass any resolution of distribution of
any dividends or interests in any forms to shareholders by any
ways;
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(d) without Party A's prior written consent, sell, transfer, mortgage
or by any other ways to dispose any assets, any legal or
beneficial interests of business or income or allow to make any
mortgage on the aforesaid rights and interests anytime after
execution of this Agreement;
(e) make Xinrui Network's shareholders' meeting to approval Xinrui
Network to sell, transfer, mortgage or by any other ways to
dispose any assets, any legal or beneficial interests of business
or income or allow to make any mortgage on the rights and
interests of Xinrui Network's shares without Party A's prior
written consent;
(f) make Xinrui Network's shareholders' meeting to approval merger or
combination with any third party, purchasing or investment in any
third party without Party A's prior written consent;
(g) inform Party A timely of all litigation, arbitration or
administrative procedures related with its share in Xinrui
Network, which occurred or possibly occur;
(h) make shareholders' meeting of Xinrui Network to pass a resolution
of transferring the purchased share stipulated hereof; whereas,
shall make Xinrui Network to modify its Article of Association,
which shall be stipulated that registration change procedures at
relevant Chinese authorities shall commence as soon as Party B
and/or Party C transfer its shares to Party A or Party A's
designated third party, or any change matters stipulated in this
Agreement occurs; each shareholders of Xinrui Network shall make
Xinrui Network to pass a resolution that appoint Party A or Party
A's designated third party to be the new director and new legal
representative;
(i) sign all necessary or proper documents for containing ownership
of its shares; take all necessary of proper actions and bring all
necessary or proper complaint or make all necessary or proper
defense to compensation complaint;
(j) transfer its shares to any designated party at anytime without
any condition upon Party A's request and waive its preferential
purchase right to the shares
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transferred by other shareholder;
(k) strictly abide by this Agreement and all stipulation in other
contracts concluded by and among Party B, Party C and Party A
jointly or separately; perform all obligations under the
aforesaid contracts; to do or not to do any actions, which shall
affect validity and performance of the aforesaid contracts.
3.2 Undertaking
Authorizing Party hereby undertakes to Party A that it will bear all costs
arising from executing each Assignment, process all formalities needed for
Party A or its designated third party to be the shareholders of Xinrui
Network. Formalities include, but are not limited to, assisting Party A
with the obtaining of necessary approvals of the equity transfer from
relevant government authorities (if any), the submission of the Assignment
to the relevant administrative department of industry and commerce for the
purpose of amending the Articles of Association, changing the list of
shareholders and undertaking any other changes.
3.3 Party B and Party C hereby make the following representations and
warranties to Party A jointly and separately on the execution date and each
transferring date:
(1) it has fully rights and capability to enter into and deliver this
Agreement, to sign any share transfer agreement(referred as share
transfer agreement respectively), which Party B or Party C as one
party according to this Agreement to transfer purchased share, and
perform all obligation under this Agreement and any share transfer
agreement. After the execution of this Agreement and any share
transfer agreement with Party B or Party C as one party, this
Agreement and share transfer agreement shall have legal and valid
bonding to Party B and Party C and can be performed by force.
(2) Any execution and turnover of this Agreement, any share transfer
agreement or obligation under this Agreement or any share transfer
agreement will not result in: (i) violation of any Chinese laws; (ii)
not in compliance with Article of Association or other organization
documents; (iii) violation any contract, which it is one party or has
any bonding effect on it; or breaching any the aforesaid contract;
(iv) violation any permit or approval of pursuing its business; or (v)
ceasing or cancel of any permit or approval or
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any additional condition;
(3) Party B and Party C have the ownership of the assets and they do not
make any mortgage on the aforesaid assets;
(4) Xinrui Network do not have any debt, that shall be paid, excluding (i)
debts occurred in normal business operation, and (ii) debts already
disclosed to Party A and obtained Party A's written consent;
(5) Xinrui Network abide by all laws and regulations in respect of assets
acquisition;
(6) There is no litigation, arbitration or administrative procedures in
progress or which is pending or possibly occur in future in respect of
share, Party B's assets and company.
4. TAXES
All taxes arising from the performance of this Agreement will be paid by
each party respectively.
5. BREACH OF AGREEMENT
If either party to this Agreement breaches any representations, warranties,
promises and obligation under this Agreement, the defaulting party shall
compensate all the actual losses the abiding party suffered.
6. GOVERNING LAW AND DISPUTE SETTLEMENT
6.1 Governing Laws
This Agreement shall be governed by the laws of the PRC, including but not
limited to the execution, performance, effect and interpretation of this
Agreement.
6.2 Friendly Consultation
The Parties shall settle the dispute regarding the interpretation or
performance of this
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Agreement through friendly consultation or mediation by a third party. Any
dispute that failing such consultation or mediation shall be submitted to
the arbitration authority for arbitration within 30 days after the
commencement of such discussions.
6.3 Arbitration
Any dispute in connection with this Agreement shall submit to China
International Trade Arbitration Committee (Beijing) for arbitration in
accordance with its arbitration rules. The arbitration award shall be final
and binding on all Parties to this Agreement.
7. CONFIDENTIALITY
7.1 Confidential Information
The contents of this Agreement and the Annexes hereof shall be kept
confidential. No Party shall disclose any such information to any third
party (except for the part agreed upon by the Parties with a prior written
agreement). Each Party's obligations under this clause shall survive after
the termination of this Agreement.
7.2 Exceptions
If a disclosure is explicitly required by law, any courts, arbitration
tribunals, or administrative authorities, such a disclosure by any Party
shall not be deemed a violation of Article 7.1 above.
8. MISCELLANEOUS
8.1 Entire agreement
This Agreement constitutes the entire agreement and understanding among the
Parties in respect of the subject matter hereof and supersedes all prior
discussions, negotiations and agreements among them. This Agreement shall
only be amended by a written instrument signed by all the Parties. The
Annexes attached hereto shall constitute an integral part of this Agreement
and shall have the same legal effect as this Agreement.
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8.2 Notices
8.2.1 Any notices or other correspondences among the Parties in connection
with the Performance of this Agreement shall be in writing and be
delivered in person, by registered mail, prepaid mail, recognized
express mail or facsimile to the following correspondence addresses:
PARTY A: AN JIAN XING YE TECHNOLOGY (BEIJING) COMPANY LIMITED
Address: Xxxx X000, xxxxx xxxx Xx. 00, west ring of Beijing Economy
& Technology Development Area
Fax: __________________________
Tele: __________________________
Addressee: He Zhicheng
PARTY B: WANG GUIJUN
Address: X00, Xx Xx Xx Xxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxx
Fax: __________________________
Tele: __________________________
Addressee: __________________________
PARTY C: XX XXXX
Address: Xx. 000 Xxxxxxxx 000, Xxxxx An Men Wai Avenue, Xuanwu
District Beijing
Fax: __________________________
Tele: __________________________
8.2.2 Notices and correspondences shall be deemed to have been effectively
delivered:
8.2.2.1 at the exact time displayed in the corresponding transmission
record, if delivered by facsimile, unless such facsimile is sent
after 5:00 pm or on a non-business day in the place where it is
received, in which case the date of receipt shall be deemed to be
the following business day;
8.2.2.2 on the date that the receiving Party signs for the document,
if delivered in person (including express mail);
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8.2.2.3 on the fifteenth (15th) day after the date shown on the
registered mail receipt, if sent by registered mail;
8.2.3 Binding Force
This Agreement shall be binding on the Parties.
8.3 Language and Counterparts
This Agreement shall be executed in 3 originals in Chinese, with each party
holding one copy.
8.4 Days and Business Day
A reference to a day herein is to a calendar day. A reference to a business
day herein is to any day from Monday through Friday in a week.
8.5 Headings
The headings contained herein are inserted for reference purposes only and
shall not affect the meaning or interpretation of any part of this
Agreement.
8.6 The obligation, promises and responsibilities of each shareholder of Xinrui
Network under this Agreement shall be deemed as separately or jointly; each
shareholder shall take joint and several liability. To Party A, the breach
made by either shareholder of Xinrui Network shall be automatically deemed
as other shareholders breaching.
8.7 Unspecified Matters
Any matter not specified in this Agreement shall be handled through
discussions among the Parties and resolved in accordance with PRC laws.
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(No text on this page, signatory page)
PARTY A: AN JIAN XING YE TECHNOLOGY (BEIJING) COMPANY LIMITED
Authorized Representative:
----------------------------------
PARTY B: WANG GUIJUN
Signature:
-----------------------------------
PARTY C: XX XXXX
Signature:
-----------------------------------
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Exhibit 1. Share Transfer Agreement
[Summary of Chinese-language exhibit]
SHARE TRANSFER AGREEMENT
Form of a Share Transfer Agreement among Sharp Edge Group Limited, Wang Guijun,
Xx Xxxx and Xinrui Network Technology Company Limited pursuant to which Wang
Guijun and Xx Xxxx agree to transfer all their shares in Xinrui Network
Technology Company Limited to Sharp Edge Group Limited at such time that Sharp
Edge Group Limited exercises its option to purchase such shares under the Share
Disposition Agreement.
