CONSIGNMENT AGREEMENT OF EQUITY INTERESTS IN DAQING SUNWAY TECHNOLOGY CO., LTD. By and Between Mr. Liang Deli And Rise Elite International Limited (BVI)
OF
EQUITY INTERESTS IN
DAQING
SUNWAY TECHNOLOGY CO., LTD.
By
and
Between
Xx.
Xxxxx Deli
And
Rise
Elite International Limited (BVI)
2007
This
Consignment Agreement (abbreviated as “Agreement”) is made and entered into on
the Jan.20,2007 in Beijing between:
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(1)
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Xx.
Xxxxx Deli ,
ID:
230603196201012377
(abbreviated as the “Consigner”);
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(2)
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Rise
Elite International Limited (BVI) (abbreviated
as the “Consignee”), a
company incorporated under the laws of the British Virgin Islands
with
limited liability and whose registered office is situate at Offshore
Incorporations Centre,Road Town,Tortola,British Virgin
Islands.
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(Consigner
and Consignee may be called “Parties” together, or “the Party” or “each Party”
under this agreement)
WHEREAS:
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(1)
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Daqing
Sunway Tehnology Co. Ltd (“the
Company”) is a company incorporated
under the P.R.China law with limited liability and whose registered
office
is situate at Jianshe Road, North Software Park, High and Advanced
Technology Industry Development Zone, Daqing City, has
been engaging its major business, which is Computer software development,
data processing, data base service, computer equipment maintenance;
computer outer equipment, apparatus, meters, the production and sale
of
the electronic products, and communicational equipment(not including
the
transmission equipment); household appliance; Petroleum chemical
technical
service.” Computer and the serious products, computer software, computer
outer equipment, apparatus, electronic equipment export and import
business, production of the medical instrument through its subsidiaries
respectively located in Daqing city and Heilongjiang Province.
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(2)
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As
of the date of this Agreement, the Consigner holds the equity which
representing 7.66% of equity capital of the Company.
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(3)
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Subject
to the terms and conditions contained in this Agreement,
the Consigner agrees to consign all the management rights and
shareholder’s rights derived from all the aforesaid equity in the Company
to the Consignee, and the Consignee agrees that it shall take the
responsibility to manage all the aforesaid equity interests and exercise
related shareholder’s rights of the
Company.
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Therefore,
subject
to the terms and conditions contained in this Agreement, the
Parties enter into this Agreement as the following terms:
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1.
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DEFINITION
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Except
as
provided otherwise, the terms under this Agreement mean:
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“Agreement”
refers to this Consignment Agreement and its appendix;
“the
Company” refers to Daqing Sunway Technology Co. Ltd.;
“Equity”
refers to the total equity held by the Consigner which representing 7.66% of
all
the equity capital of Sunway Co. Ltd);
“Consignment”
refers to the Consignee accepts the Consigner’s consignment to take management
of the equity interests derived from the Equity and exercise related
shareholder’s rights for and on behalf of the Consigner;
“Consigned
Equity Interests” refers to the equity interests and the shareholders’ rights
derived from the Equity, which are Consigned by the Consigner to the
Consignee;
“Signing
Date” refers to the date of signing this Agreement;
“Consignment
Period” refers to the period stipulated in Article 3 of this Agreement, which
during such period the Consignee shall take management to the Consigned Equity
Interests;
“Business
day” refers to any day except Saturday, Sunday and other days authorized to the
banks to close;
“China”
refers to People’s Republic of China, as for this Agreement, excluding
Hong
Kong
Special Administrative Region, Macau Special Administrative Region, and
Taiwan;
“China
law” refers to the effective laws, regulations, policies or other enforceable
legal documents of People’s Republic of China, and future effective laws,
regulations, policies or other enforceable legal documents. Moreover, expect
as
otherwise provided, the term refers to the amended and substituted laws
(excluding Hong
Kong
Special Administrative Region, Macau Special Administrative Region, and
Taiwan).
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2.
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CONSIGNMENT
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2.1
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The
Consigner hereby agrees to consign the Consigned Equity Interests
to the
Consignee and the Consignee agrees to accept the Consignment. The
Consignee shall take management to the Consigned Equity Interests
and
exercise related shareholders’ rights on behalf of the Consigner within
the Consignment Period. The Consignee agrees to take management of
the
Consigned Equity Interests, exercise shareholders’ rights for and on
behalf of the Consigner within the Consignment
Period.
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2
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2.2
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On
behalf of the Consigner and for the purpose to protect and realize
the
maximum benefits of the Consigner, the Consignee shall exercise the
shareholders’ rights with reasonable prudence.
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2.3
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The
Consignee shall exercise the shareholders’ rights for and on behalf of the
Consigner, included but not
limited:
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| 2.3.1 |
to
convene the shareholders’ meeting and submit
proposal;
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2.3.2
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to
propose to replace or add the members of directors, supervisors,
and
recommend new director or supervisor candidates in order to establish
a
new board of directors and supervisory
committee;
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2.3.3
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to
appoint representatives to participate the shareholders’ meeting and
exercise the voting rights according to the proportion of Consigned
Equity
Interests.
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2.3.4
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to
obtain relevant corporate information on a timely and regular
basis.
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2.3.5
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to
exercise the management rights, controlling rights and decision making
power over the Consigned Equity Interests pro rata;
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2.3.6
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to
dispose the Consigned Equity Interests in any lawful ways;
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2.3.7
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to
enjoy the benefits over the Consigned Equity Interests; and
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2.3.8
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to
exercise any other shareholder rights on behalf of the
Consigner.
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2.4
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In
the Precondition that not to infringe the principle under Clause
2.2, the
Consigner agrees not to interfere with the exercise of the shareholders’
rights over Consigned Equity Interests by the Consignee. Nonetheless,
the
Consigner shall cooperate with the Consignee on the management and
shall
promptly provide and sign all necessary documents (including but
not
limited to power of attorney, agreements and contracts) at the Consignee’s
request in favor of the Consigned Equity
Interests.
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2.5
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The
Consigner has the right of being kept informed in connection with
the
exercise of the shareholders’ rights over the Consigned Equity Interests
by the Consignee as well as the right of supervising, enquiring and
suggesting over the Consigned Equity Interest. The Consignee shall
take
fully responsibilities on the results of the exercise of the shareholders’
rights over the Consigned Equity Interests by the Consignee within
the
scope of its powers and authorities.
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2.6
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The
Consigner agrees that, at the Consignee’s request, it shall transfer the
ownership of the Equity to the Consignee as the conditions agreed
by the
parties.
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2.7
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The
Consigner agrees that, the Consignee may transfer all or part of
the
rights under this Agreement to any third party without prior written
consent from the Consignee.
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3.
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CONSIGNMENT
PERIOD
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3.1
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The
Parties agree that the Consignment Period should start from the signing
date of the agreement and terminate upon the earliest to occur of
(i) the
acquisition of the 100% of the equity interest of the Company by
the
Consignee or any designee of the Consignee, (ii) the acquisition
of all or
substantially all assets of the Company by the Consignee or any designee
of the Consignee, or (iii) the expire date of the consignment agreement
as
required under the PRC laws and regulations. If the Agreement expires
because of item (iii) in the foregoing rather than item (i) or (ii),
then
this Consignment Agreement shall be automatically renewed after the
expiration date. .
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3
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4.
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LIMITATION
PROVISIONS
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4.1
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Within
the Consignment Period, without the prior written consent of the
Consignee, the Consigner shall not:
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4.1.1
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to
dispose the Equity held by the Consigner by transfer and any other
methods;
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4.1.2
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to
set up any encumbrances over Consigned Equity
Interests;
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4.1.3
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to
consign the shareholders’ rights over the Consigned Equity Interests to
any third party;
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4.1.4
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to
change the proportion of the Consigned Equity
Interests;
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4.1.5
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to
restructure in connection with the Consigned Equity
Interests.
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4.2
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The
Consigner shall notify the Consignee within 3 days so that the Consignee
could take immediate action to avoid damages, if judicial official
or
other government forcible request to dispose the Equity, because
of the
Consigner’s bankruptcy or illegal action against state law and
policies.
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5.
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WARRANTIES,
REPRESENTATION AND UNDERTAKING
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5.1
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The
Consigner’s warranties, representations and
undertakings:
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5.1.1
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The
Consigner is an independent legal person. Being the legal owner of
the
Equity, the Consigner has the rights to sign this Agreement and to
perform
the terms and provisions under this
Agreement.
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5.1.2
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The
Consigner has the entirely independent privileges and disposal rights
over
the Consigned Equity Interests. The Consigned Equity Interests is
not
subjected to any mortgage, debt, obligation, arbitration or litigation,
and is not limited by other prior rights or some other similar
rights.
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5.1.3
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The
Consigner has already provided genuine, complete and accurate accounting
material related to finance, assets and debt to the Company. The
above-
mentioned material does not contain any undisclosed facts that may
cause
material adverse effect to the
Company..
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5.1.4
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The
Consigner guarantees that it has not entered into any contracts or
agreements conflicting with this Agreement, and shall not assign
the
rights and obligation to any third party under this
Agreement.
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5.1.5
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Any
warranties, representations and undertakings made by the Consigner,
including any documents provided to Consignee, do not contain inaccurate
statements related to major events, or omit the major events which
could
cause misunderstanding of the
statements.
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5.1.6
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For
the purpose of implementation of this Agreement, the Consigner promises
that it shall take all necessary actions, steps and make all documents
to
execute all the terms in this
Agreement.
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4
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5.2
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The
Consignee’s warrants, representation and
undertakings:
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5.2.1
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The
Consignee, incorporated under the laws of British Virgin Islands,
is an
independent legal person. It has already obtained all necessary
authorization to sign this Agreement and to perform the terms and
provisions under this Agreement.
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5.2.2
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For
the purpose of maximizing both the Company and shareholders’ interests,
the Consignee shall take management on the Consigned Equity in accordance
with Chinese law.
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5.2.3
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The
Consignee guarantees that it has not entered into any contracts or
agreements conflicting with this Agreement, and shall be entitled
to
assign the rights and obligation to any third party
hereunder.
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5.2.4
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Any
warrants, representation and undertakings made by the Consignee do
not
contain inaccurate statement related to major events, or omit the
major
events which could cause misunderstanding of the
statements.
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5.2.5
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For
the purpose of implementation of this Agreement, the Consignee promise
that it shall take all necessary actions, steps and make all documents
to
execute all the terms in this
Agreement
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6.
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COST
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6.1
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Except
as agreed by the Parties in any other agreements, all taxes and other
fees
or expense incurred in connection with the negotiation, drafting
and
execution of this agreement, shall be born by each party on its own
expenses.
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7.
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CONFIDENTIAL
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7.1
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Any
information, documents, data and all other materials (herein “confidential
information”) arising out of the negotiation, signing, and implement of
this Agreement, shall be kept in strict confidence by the Parties.
Unless
compelled to disclose in judicial or administrative process, or by
other
requirements of laws, any third party, except for those enjoying
the
rights to know the confidential information, shall neither be informed
about or use the above confidential information, nor use the confidential
information for the purpose not related to complete this
Agreement.
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7.2
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The
above confidentiality obligations of the Parties survive the date
of on
which this Agreement terminates.
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8.
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FORCE
MAJEURE
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8.1
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“Force
Majeure” refers that any event, condition, situation or the combination of
event, condition and situation, which is outside the direct or indirect
reasonable controlling scope of the influenced party, and is limited
by
inevitable event, condition or situation that the influenced party
could
not reasonable anticipate, or avoid, prevent or inevitable postpone
either’s perform under the terms of this Agreement. Neither party shall
be
liable to the other for any delay or failure to perform its obligation
under this Agreement, if such failure or delay is due to force majeure.
However, one party shall notify the other party in writing as soon
as
practical of any delay due to force majeure. After the force majeure
ceases, each party shall continue to perform under this
Agreement.
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Consignment
Agreement
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9.
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DEFAULT
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9.1
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After
the effective date of this Agreement, if either party is in default,
nonperforming, or partly performing terms of this Agreement, or is
in
default of any warranties, representations and undertakings of this
Agreement, it may constitute default. The non-breaching party can
allow
the breaching party to remedy in a reasonable time period. If the
breaching party does not remedy within the reasonable time period,
the
non-breaching party shall hold the breaching party liable for all
the
damages resulted from the breaching party’s default. All the economic
loss, including attorney fees, litigation and arbitration costs incurred
by the default, shall be paid by the breaching party. The breaching
party
shall also be responsible to participate the relevant litigation.
The
economic loss shall not exceed the amount that breaching party could
anticipate or should anticipate as of the date of this
Agreement.
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10.
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EFFECTIVE
DATE
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10.1
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This
agreement is effective from the Signing Date (If it is signed by
a
designated person, a letter of the power of attorney is
necessary).
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11.
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GOVERNING
LAW AND DISPUTE RESOLUTION
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11.1
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The
effectiveness, interpretation, implementation and dispute-resolution
related to this Agreement shall be governed under the laws of the
People’s
Republic of China.
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11.2
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Any
dispute arising out of this Agreement, including but not limited
to
execution, enforcement, implementation, interpretation, default,
modification, and termination, shall be resolved by both parties
through
mutual negotiation. If both parties could not reach an agreement
within 30
days since the dispute is brought forward, either Party may submit
the
dispute to Beijing Arbitration Commission for arbitration under its
applicable rules. The
arbitration award should be final and binding upon both parties,
if the
losing party refuses to enforce the arbitration award, the winning
party
may seek enforcement of arbitration award in a PRC court with jurisdiction
over the dispute; and the winning party shall have the right to ask
the
losing party to pay for all professional service (including but not
limited to legal counsel service, arbitration fees, enforcement fees)
costs in the course of arbitration and other related
costs.
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Consignment
Agreement
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11.3
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During
the process of dispute-resolution, both parties shall continue to
perform
other terms under this Agreement, except for provision of dispute
resolution.
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12.
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MODIFICATION,
CANCELLATION, TERMINATION
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12.1
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The
modification of this Agreement shall not be effective without written
agreement through negotiation. If the Parties could not reach an
agreement, this Agreement remains
effective.
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12.2
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The
Parties may terminate this Agreement with written agreement before
expiration date.
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12.3
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The
Agreement can only be terminated in any of the following
events:
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| (1) |
upon
completion of acquisition by the Consignee or its designees of 100%
of the
equity interest or all or substantially all of the assets of the
Company
;
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| (2) |
or
by the mutual consent of the Parties in
writing.
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13.
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GENERAL
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13.1
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Any
statement, stipulation and promise made by one party to the other,
which
are the foundation and precondition to the Agreement, shall be complete
and genuine. After the effective date, if either party discovers
the fact
does not comply with the other party’s representation and warranties, the
discovering party shall disclose immediately the above fact to the
other.
All the losses, costs, expenses, or obligations shall be compensated
if it
is resulted by either party’s default of its representation and
warranties.
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13.2
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Any
representation, warranties and undertakings shall be separate and
independent under this Agreement, which also shall not be limited
by any
provisions, except provided
otherwise.
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13.3
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If
any provisions of this Agreement shall be construed to be illegal,
invalid, or unenforceable according the laws of China, they shall
not
affect the legality, validity and enforceability of the other provisions
of this Agreement. If any provision is deemed to be illegal, invalid,
or
unenforceable, both parties shall modify this agreement through
negotiation, and shall apply to both parties’ original intend as close as
possible.
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13.4
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This
Agreement constitutes the entire agreement between the parties relating
to
this Consignment, which together with the appendix, represents both
parties’ genuine expression. This Agreement supersedes all prior or
contemporaneous discussions, or presentations and proposals, written
or
oral, with respect to subject matters discussed herein.
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Consignment
Agreement
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13.5
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Except
as otherwise provided by the laws, either party’s failure or postpone to
exercise rights under this Agreement does not constitute the waiver
of the
rights. Exercise rights solely or partly does not constitute the
prevention from exercising other rights, or
privileges.
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13.6
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All
headings used in this Agreement are intended for convenience of reference
only. They will not affect the construction or interpretation of
the
Agreement.
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13.7
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Except
otherwise provided in this Agreement, the mentioned article, clause
and
appendix refer to the article, clause and appendix of this
Agreement.
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13.8
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Any
notice required to be given or delivered to either party under the
terms
of this Agreement shall be in writing and addressed to such Consignee’s
address indicated at the first page of the Agreement or such other
address
or as such party may designate, in writing, from time to time. All
notices
shall be deemed to have been given or delivered upon by personal
delivery,
fax and registered mail. It shall be deemed to be delivered upon:
(1)
registered air mail: 5 business days after deposit in the mail; (2)
personal delivery: 2 business days after transmission. If the notice
is
delivered by fax, it should be confirmed by original through registered
air mail or personal delivery.
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Consigner:
Contact
person:梁德利
Address:
Xxxxxxxx
0, Xxxxxxxx Xxxx, Xx-xxxx Xxxxxxxxxxx Xxxx Daqing, Heilongjiang,
Tel:0459ó0000000
Fax:0459ó0000000
Consignee:
Contact
person:刘波
Address:
Offshore
Incorporations Centre,Road Town,Tortola,British Virgin Islands
Tel:0000000
Fax:0459ó0000000
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13.9
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Both
parties may sign additional agreement regarding to related matters
of this
Consignment. Additional agreement and this Agreement have the same
effectiveness.
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13.10
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All
the appendix of this Agreement is the integral part of this Agreement,
which has the same effectiveness with this
Agreement.
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13.11
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This
Agreement is written in both English and Chinese. If the two versions
conflict, the Chinese version shall
prevail.
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Consignment
Agreement
[Signature
Page Only]
IN
WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to execute this Agreement.
For
and
on behalf of
Xx.
Xxxxx
Deli (SEAL)
_______________________
Rise
Elite International Limited
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