VOTING AGREEMENT
This
Voting Attorney Agreement ( hereinafter “Agreement”) is made on the 26th day of
November, 2008, at Shijiazhuang, the People’s Republic of China (the “PRC”) by
and among the following parties:
Hebei
Xxxxxx Xxxx Trade Co., Ltd. ( “Party A”)
Registered
Address: 000 Xxxx Xxxxxxxxx Xxxx, Shiiazhuang
Legal
representative: Zhang Zhongwen
Hebei
Shijie Kaiyuan Logistics Co., Ltd. (“Party B”)
Registered
Address: 000 Xxxx Xxxxxxxxx Xxxx, Shiiazhuang
Legal
representative: Xxxx Xxxxx
(Party A
hereinafter “WFOE”, Party B, hereinafter “Grantor”. WFOE and Grantor are
hereinafter referred to as, individually, a “Party”, and collectively, the
“Parties”.)
WHEREAS:
1.
|
Party
A, a wholly foreign owned enterprise organized and existing under the laws
of the PRC within the jurisdiction of the PRC; (for the purpose of this
Agreement, excluded Hong Kong , Macau and Taiwan,
hereinafter “PRC”).
|
2.
|
Party
B, a limited liability company registered and existing under the laws of
PRC, hold the ownership of 【48】Transportation
Companies (hereinafter “Domestic Company”) 【within the
jurisdiction of the PRC】;
|
3
.
|
Grantor
desires to grant a power of attorney to the WFOE (via the person
designated by it) to vote for its entire shares of Domestic Company’s
voting stock in the shareholder
meeting.
|
NOW THEREFORE, the Parties
have reached the following agreements:
1. VOTING
RIGHT
1.1
|
Grantor
has irrevocably agreed to grant any and all voting right to the WFOE to
vote for its entire shares of Domestic Company’s voting stock in the
shareholder meeting under the PRC law and the Domestic Company’s
constitutional documents (“Voting Right”) during the term of this
Agreement. The Voting Right mentioned above include, without limitation
,the rights set forth as below:
|
1
|
1.1.1
|
Determining
the Domestic Company’s operational policies and investment
plans;
|
|
1.1.2
|
Electing
and replacing directors of the Domestic Company, and deciding
their remunerations;
|
|
1.1.3
|
Electing
and replacing members of the board of supervisors of the Domestic Company,
and deciding their remunerations;
|
|
1.1.4
|
Reviewing
and approving any and all reports provided by the board of directors of the Domestic
Company;
|
|
1.1.5
|
Reviewing
and approving any and all reports provided by the board of
supervisors of
the Domestic Company;
|
|
1.1.6
|
Reviewing
and approving annual financial budget plans and final accounting plans of
the Domestic Company;
|
|
1.1.7
|
Reviewing
and approving profit distribution plans and plans to cover company
losses of the
Domestic Company;
|
|
1.1.8
|
Adopting
resolutions regarding increase or decrease of registered capital by the
Domestic Company;
|
|
1.1.9
|
Adopting
resolutions on the issue of bonds by the Domestic
Company;
|
|
1.1.10
|
Adopting
resolutions on merger, division, restructure, termination and liquidation
of the Domestic Company;
|
|
1.1.11
|
Determining
the alteration of the business scope of the Domestic
Company;
|
|
1.1.12
|
Amending
the articles of association and bylaws of the corporation of the Domestic
Company;
|
|
1.1.13
|
Determining
the material alteration of the content and nature of business of the
Domestic Company;
|
|
1.1.14
|
Determining
the dividend and other contribution policies of the Domestic
Company;
|
|
1.1.15
|
Determining
to enter into loan arrangements with any third party for borrowings or
incur any indebtedness from any third party under the name of the Domestic
Company;
|
2
|
1.1.16
|
Determining
to sell, transfer or dispose otherwise any assets or rights including but
not limited to intellectual property of the Domestic Company to any third
party;
|
|
1.1.17
|
Determining
to create any encumbrance on the assets of the Domestic Company (tangible
or intangible), irrespective of the purpose of this
encumbrance;
|
|
1.1.18
|
Determining
to assign any contract or agreement which the Domestic Company
is one of the Parties to any third
party;
|
|
1.1.19
|
Determining
to offer any loans by the Domestic Company to any third party;
and
|
|
1.1.20
|
Determining
any other event which may impact materially to any rights, obligations,
assets or business of the Domestic
Company.
|
1.2
|
The
WFOE shall appoint one (1) nature person to exercise the voting rights
specified in this Agreement. Concurrently with appointing the natural
person, the WFOE shall notify the Grantor, and the Grantor shall deliver a
Power of Attorney (“POA”) as set forth in Schedule 1. The Grantor shall
not revoke the POA other than required by the WFOE with a written notice.
The Grantor shall execute and deliver a new POA to the effect of
withdrawing the authorization with respect to the representative of the
Attorney in the POA and designating the new representative as the
attorney.
|
1.3
|
Grantor
covenants that, it will not execute any loan contract with an value
exceeding RMB1,000,000 without the prior written consent of the WFOE.
(whether Domestic Company is lender or
borrower)
|
1.4
|
The
WFOE hereby agrees that it will accept the power of attorney granted by
Grantor pursuant to Section 1.1, and will exercise the voting right on its
behalf in accordance with the terms and conditions of this
Agreement.
|
1.5
|
Grantor
hereby appoints the WFOE irrevocably as its attorney in fact to exercise
all the rights of signature and seal in any and all corporation documents
as the shareholders of the Domestic
Company.
|
2. EXERCISE
VOTING RIGHT
2.1
|
The
Grantor shall execute any relevant shareholder’s resolution of the
Domestic Company or any other similar documents on the request of the WFOE
in connection with any event which authorized the WFOE to approve by
exercising the voting right.
|
2.2
|
Grantor
hereby acknowledges that, the WFOE has the right to grant any right
hereunder to any third Party as representative without the consent of
Grantor subject to notify this event to Grantor
immediately.
|
2.3
|
The
WFOE shall notify to the Grantor for the exercising of voting right at any
appropriate time, and shall report the Grantor the consequence on
exercising of voting rights at the time the Agreement is
terminated.
|
3
2.4
|
The
WFOE may assign or transfer any or all of its voting rights to any third
Party without the consent of Grantor subject to delivering a written
notice to the Grantor for the
assignment.
|
3. TERM
OF PROXY
3.1
|
The
term of proxy hereunder shall be counted from the date of effectiveness of
this Agreement to (i) the date of accomplishment of assignment( the
definition set forth as below) or (ii) the date of the termination of the
Domestic Company (the earlier shall prevail). “the Date of Accomplishment
of Assignment” means the date when the Domestic Company accomplished the
registration of alter and the WFOE or the person designated by the WFOE
become the legal owner of the equity interests of the Domestic
Company.
|
3.2
|
Subject
to mutual agreement and expressly made in written, both Parties of this
Agreement may modify the expiration of the
proxy.
|
4. COMISSION
OF ATTORNEY
4.1
|
The
WFOE hereby agrees that the Grantor have no obligation to pay the WFOE for
its service to act for proxy.
|
5. REPRESENTATIONS
AND WARRANTIES
5.1
|
The
Parties hereby represents and warrants to each other as
follows:
|
|
5.1.1
|
The
Party has full power, and qualification to enter into this
Agreement;
|
5.1.2
|
The
Party have the competence to perform its obligations hereunder;
and
|
5.1.3
|
The
performance of obligations hereunder will not conflict with or violate any
law, statute, rule, regulation and order applicable to such
party.
|
5.2
|
In
the event of execution, this Agreement constitutes a legal, valid and
binding obligation of each Party, enforceable against
it in accordance with its terms.
|
6. REMEDIES
6.1
|
In
the event that Grantor make any breach of the provisions hereunder
directly or indirectly or not carry out any obligation hereunder promptly
and good shall be deemed as breach of contract, given the written notices
the WFOE have the right to require the Grantor to correct its conducts of
breach or non-performance, and take good, promptly and effectively action
to eliminate the consequences in connection with
the breach and non-performance aforesaid, and cover the damages of the
WFOE.
|
4
6.2
|
Subject
to the reasonable, objective judgment of the WFOE, in the event that the
breach of contract will make the performance of the WFOE impossible or
unfair, the WFOE may notify the Grantor in writing to pause the
performance temporarily until the Grantor ceased his breach and took
prompt, good measures to eliminate the consequences and give indemnity to
the WFOE for its damages.
|
6.3
|
Subject
to otherwise expressly specified herein, the payable damages caused by the
breach of contract for Grantor shall includes the indirect losses, any
anticipatable consequential damages and any other costs and expenses in
connection with the non-performance, including without limitation the
attorney fees, litigation fees, arbitration fees, finance expenses and
traveling expenses.
|
7. EFFECTIVENESS,
MODIFICATION AND TERMINATION
7.1
|
This
Agreement shall be effective from the signature date of this Agreement and
terminate on and before the expiration of the duration of attorney
hereunder.
|
7.2
|
Prior
to the expiration of this Agreement, the Grantor will relief its
obligations bound by this Agreement, upon the completion of transferring
its entire equity interests of the Domestic Company to the WFOE or any
third party designated by the WFOE.
|
7.3
|
Grantor
hereby irrevocably and permanently waives his power of
termination.
|
7.4
|
No
amendment, supplementary or modification of this Agreement shall occur
except in written consent by both Parties. The amend agreement and
supplementary agreement (if any) that have been signed and sealed by the
Parties shall constitute an integrate part hereof and have the same
validity as this Agreement.
|
7.5
|
Grantor
agrees, the WFOE have the right to terminate this Agreement with ten (10)
days prior written notices, without given any cause, and shall not be
liable for any remedies. However, the Grantor shall not terminate this
Agreement prior to expiry in any reason without the prior written
approval.
|
7.6
|
Any
earlier termination hereof shall not affect any of rights and obligations
undertaken by any Party before the date of termination under this
Agreement.
|
8. GOVERNING
LAW AND SETTLEMENT OF DISPUTES
8.1
|
The
execution, effectiveness, performance, construction and settlement of
disputes shall be governed by the laws of the PRC without regard to
conflict of laws principles.
|
5
8.2
|
In
the event of any dispute with respect to or in connection with the
construction and performance of the provisions of this Agreement, the
Parties shall first negotiate in good faith to resolve the dispute. In the
event the Parties fail to resolve the dispute through the methods
above-mentioned within sixty(60) days or longer term otherwise specified
by Parties after the any Party’s notice in writing for resolution of the
dispute, any Party may submit the relevant dispute to China International
Economic and Trade Arbitration Commission in Shijiazhuang for binding
arbitration. The languages used during arbitration shall be Chinese. The
arbitration shall be final and binding on
Parties.
|
9. MISCELLANEOUS
9.1
|
The
headings in this Agreement are for convenience only and shall not affect
the construction of the Agreement.
|
9.2
|
If
any term or other provision of this Agreement is determined to be invalid,
illegal or incapable of being enforced by any rule of law or any other
reason, all other conditions and provisions of this Agreement will
nevertheless remain in full force and effect. Upon such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the Parties hereto will negotiate in good faith to modify this
Agreement.
|
9.3
|
The
breach of any or all provisions under this Agreement shall not affect the
rights and obligations hereunder or in connection with any other relevant
agreements as well as the performance hereof or
thereof.
|
9.4
|
No
delay or omission by any Party in exercising the right, power or privilege
hereunder shall be deemed as a waiver of such right, power or privilege.
The single or partial exercise of any right, power or privilege shall not
preclude any exercise of any other right, power or
privilege.
|
9.5
|
This
Agreement constitutes the entire agreement of the parties and supersedes
all prior agreements and undertakings, both written and oral, between the
parties with respect to the subject matter
hereof.
|
9.6
|
This
Agreement is binding on each party's successors and permitted
assignees.
|
9.7
|
This
Agreement signed in quadruplicate originals, with each of equally binding
force.
|
IN WITNESS WHEREOF, the
parties have duly executed this Agreement as of the date first written
above.
6
[SIGNATURE
PAGE]
Party A: Hebei Xxxxxx Xxxx Trade Co.,
Ltd.(seal)
Authorized
representative(signature):
Party B: Hebei Shijie Kaiyuan
Logistics Co., Ltd. (seal)
Authorized
representative(signature):
7
SCHEDULE
1
POWER
OF ATTORNEY
Party
A:Hebei
Shijie Kaiyuan Logistics Co., Ltd.
Party
B:Hebei
Xxxxxx Xxxx Trade Co., Ltd.
This
POWER OF ATTORNEY ( hereinafter “POA”) is made on the 26th day of November,
2008, at Shijiazhuang, the People’s Republic of China.
Party A,
hereby irrevocably and to the fullest extent permitted by law appoints Yan
Huikai as its proxy, with full power of substitution, to the full extent of
Party A’s rights with respect to his or her entire equity interest in Shanxi
Chuanglian Auto Trade Co., Ltd.
This POA
shall be irrevocably revoked in the event that Party B dismiss and replace the
representative with written notice. Party A shall withdraw the authorization
immediately and give another POA to the representative designated by Party
B.
This
attorney appointed by this POA is empowered, and may exercise this POA, to vote
all of the Equity Interest in accordance with the prior written instruction of
Attorney at any time until the termination of the Agreement, at any meetings or
in any other circumstances upon which the vote or other action of the holders of
the Equity Interest is sought.
This POA
shall be effective for a period of ten (10) year from the signature date of this
POA subject to the Voting Proxy Agreement executed between Party A and Party B
be terminated in any reason during this term.
8
[SIGNATURE
PAGE]
Party
A: Hebei Shijie Kaiyuan Logistics Co., Ltd.(seal)
Authorized
Representative(signature):
Party
B: Hebei Xxxxxx Xxxx Trade Co., Ltd.(seal)
Authorized
Representative(signature):
9