Exclusive Option Agreement
This
Exclusive Option Agreement (this “Agreement”) is entered into in ShenZhen on
February 08, 2007 between the following parties:
Party
A:
JingWei HengTong Technology (ShenZhen) Co., Ltd. (经纬恒通科技（深圳）有限公司
)
Registration
Address: Xxxx 0000 X,Xxxxxx Xx-xxxx Xxxxx Xxxxx X,Xxxx An Cyber Park,Futian
District,Shenzhen,China
Party
B:
Mr. JianGuo Du
ID
No.
310104640815041
Party
C:
Ms. AiLing Yin
ID
No.
310104660918042
Party
D:
Xx. XxxXxxx Yin
ID
No.
410802640601252
Party
E:
ShenZhen JingWei Communication Co., Ltd.(深圳经纬通信技术有限公司)
Registration
Address: Tianxiang Building Block A 13th, Tian An Cyber Park, Futian District,
Shenzhen.
WHEREAS:
1.
Party
A
is a wholly foreign-owned enterprise duly incorporated and validly existing
under the People’s Republic of China (the “PRC”) law, which has the technology
expertise and the practical experience on the development and design of computer
software, and rich experience and professional technicians on information
technology and services;
2.
Party
E
is a limited liability company duly incorporated and validly existing under
the
PRC law, which is licensed by relevant government authorities to engage in
the
internet information service value-added telecommunication service;
3.
Party
B,
Party C and Party D are shareholders of Party E, in which Party B owns 90%,
Party C owns 8% and Party D owns 2% equity interests of Party E (collectively
the “Equity Interest”);
4.
The Loan Agreement (the “Loan Agreement”) is entered into by Party A,
Party B, Party C and Party D on February 08, 2007;
5.
A series agreements such as the Exclusive Technology Consulting Services
Agreement (the “Service Agreement”) are entered into by Party A and Party E on
February 08, 2007;
6.
The Equity Pledge Agreement (the “Equity Pledge Agreement”) is entered
into by Party A, Party B, Party C and Party D as of February 08,
2007;
NOW,
THEREFORE, the Parties to this Agreement hereby agree as follows:
1.
Purchase
and Sale of Equity Interest
1.1
Grant
Rights: Party B, Party C and Party D (hereafter collectively the “Transferor”)
hereby irrevocably grants to Party A an option to purchase or cause any
designated person (“Designated Persons”) to purchase, to the extent permitted
under PRC Law, according to the steps determined by Party A, at the price
specified in Section 1.3 of this Agreement, at any time from the Transferor
a
portion or all of the equity interests held by Transferor in Party E (the
“Option”). No Option shall be granted to any third party other than Party A
and/or the Designated Persons. Party E hereby agrees to the granting of the
Option by Party B, Party C and Party D to Party A and/or the Designated Persons.
The “person” set forth in this clause and this Agreement means an individual
person, corporation, joint venture, partnership, enterprise, trust or a
non-corporation organization.
1.2
Exercise
Steps: According to the stipulations of PRC laws and regulation, Party A and/or
the Designated Persons may exercise Option by issuing a written notice (the
“Notice”) to the Transferor and specifying the equity interest purchased from
Transferor (the “Purchased Equity Interest”) and the manner of
purchase.
1.3
Purchase
Price
1.3.1
For
Party
A to exercise the Option, the purchase price of the Purchased Equity Interest
(“Purchase Price”) shall be equal to the original paid-in price of the Purchased
Equity Interest by the Transferor, unless the applicable PRC laws and
regulations require appraisal of the equity interests or stipulate other
restrictions on the purchase price of equity interests.
1.3.2
If
the
applicable PRC laws require appraisal of the equity interests or stipulates
other restrictions on the purchase price of Equity Interest at the time that
Party A exercise the Option, the Parties agree that the Purchase Price shall
be
set at the lowest price permissible under the applicable laws.
1.4
Transfer
of the Purchased Equity Interest
In
each
time the performance of the Option:
1.4.1
The
Transferor shall ask Party E to convene the shareholders’ meeting. During the
meeting, the resolution, in which Transferor transfers Equity Interest to Party
A and/or the Designated Persons, shall be made;
1.4.2
The
Transferor shall, upon the terms and conditions of this Agreement and the Notice
related to the Purchased Equity Interest, enter into Equity Interest Transfer
Agreement with Party A and/or the Designated Persons (as
applicable);
1.4.3
The
related parties shall execute all other requisite contracts, agreements or
documents, obtain all requisite approval and consent of the government, conduct
all necessary actions, without any security interest, transfer the valid
ownership of the Purchased Equity Interest to Party A and/or the Designated
Persons, and cause Party A and/or the Designated Persons to be the registered
owner of the Purchased Equity Interest. In this Clause and this Agreement,
“Security Interest” means the ensure, mortgage, pledge, the right or interest of
the third party, any purchase right of equity interest, right of acquisition,
right of first refusal, right of set-off, ownership detainment or other security
arrangements. But it does not include any security interest subject to the
Equity Pledge Agreement.
1.5
Payment:
The payment of the Purchase Price shall be determined by the consultation of
Party A and/or the Designated Persons with the Transferor according to the
applicable laws at the performance of Option. The Parties hereby agree that
Transferor shall repay any amount that is paid by Party A and/or the Designated
Persons to Transferor in connection with the Purchased Equity Interest to Party
A in accordance with the laws as the reimbursement of the principal of the
loan
and its interest or cost under the Loan Agreement allowed by the
laws.
2.
Promises
Relating Equity Interest
2.1
Promises
Related to Party E: Party B, Party C, Party D and Party E hereby
promise:
2.1.1
Without
prior written consent by Party A, not, in any form, to supplement, change or
renew the Articles of Association of Party E, to increase or decrease registered
capital of the corporation, or to change the structure of the registered capital
in any other forms;
2.1.2
According
to fair finance and business standard and tradition, to maintain the existence
of the corporation, prudently and effectively operate business and deal with
works;
2.1.3
Without
prior written consent by Party A, not, upon the execution of this Agreement,
to
sale, transfer, mortgage or dispose, in any other form, any asset, legitimate
or
beneficial interest of business or income of Party E, or to approve any other
security interest set on it;
2.1.4
Without
prior written notice by Party A, not cause, inherit guarantee or allow the
existence of any debt, other than (i) the debt arising from normal or daily
business but not from borrowing; and (ii) the debt disclosed to Party A and
obtained the written consent from Party A;
2.1.5
To
normally operate all business to maintain the asset value of Party E, without
make any action or nonfeasance that sufficiently affects its operation and
asset
value;
2.1.6
Without
prior written consent by Party A, not to enter into any material Agreement,
other than the Agreement in the process of normal business (As in this
paragraph, the amount in the Agreement that exceeds a hundred thousand Yuan
(RMB
100,000) shall be deemed as a material Agreement);
2.1.7
Without
prior written consent by Party A, not to provide loan or credit loan to any
others;
2.1.8
Upon
the
request of Party A, to provide all materials of operation and finance relevant
to Party E;
2.1.9
Purchases
and holds the insurance from the insurance company accepted by Party A, the
insurance amount and category shall be the same with those held by the companies
in the same area, operating the similar business and owning the similar
properties and assets with Party E;
2.1.10
Without
prior written consent by Party A, not to merger or associate with any person,
or
acquire or invest in any person;
2.1.11
To
notify
Party A of the occurrence or the potential occurrence of the litigation,
arbitration or administrative procedure related to the assets, business and
income of Party E;
2.1.12
In
order
to keep the ownership of Party E to all its assets, to execute all requisite
or
appropriate documents, do all requisite or appropriate action, and advance
all
requisite or appropriate accusation, or make requisite or appropriate plea
for
all claims;
2.1.13
Without
prior written notice by Party A, not to assign equity interests to shareholders
in any form, but to assign all or part of its assignable profits to their own
shareholders upon the request by Party A;
2.1.14
According
to the request of Party A, to appoint any person designated by Party A to be
the
directors of Party E.
2.2
Promises
Related to Transferor: Party B, Party C and Party D hereby promise:
2.2.1
Without
prior written consent by Party A, not, upon the execution of this Agreement,
to
sale, transfer, mortgage or dispose in any other form any legitimate or
beneficial interest of equity interest, or to approve any other security
interest set on it, with the exception of the pledge set on the equity interest
of the Transferor subject to Equity Pledge Agreement;
2.2.2
Without
the prior written notice by Party A, not to decide or support or execute any
shareholders resolution on the Party E’s shareholders’ meeting that approves any
sale, transfer, mortgage or dispose of any legitimate or beneficial interest
of
equity interest, or allows any other security interest set on it, other than
the
pledge on the equity interests of Transferor pursuant to Equity Pledge
Agreement;
2.2.3
With
no
prior written notice by Party A, they shall not agree or support or execute
any
shareholders resolution on the Party E’s shareholders’ meeting that approves
Party E to merger or associate with any person, acquire any person or invest
in
any person;
2.2.4
To
notify
Party A the occurrence or the potential occurrence of the litigation,
arbitration or administrative procedure related to the equity interest owned
by
them;
2.2.5
To
cause
the Board of Shareholders approving the transfer of the Purchased Equity
Interest subject to this Agreement;
2.2.6
In
order
to keep its ownership of the equity interest, to execute all requisite or
appropriate documents, conduct all requisite or appropriate actions, and make
all requisite or appropriate claims, or make requisite or appropriate defend
against fall claims of compensation;
2.2.7
Upon
the
request of Party A, to appoint any person designated by Party A to be the
directors of Party E;
2.2.8
Upon
the
request of Party A at any time, to transfer its equity interest immediately
to
the representative designated by Party A unconditionally at any time and abandon
its prior right of first refusal of such equity interest transferring to another
available shareholder;
2.2.9
To
prudently comply with the provisions of this Agreement and other Agreements
entered into collectively or respectively by the Transferor, Party E and Party
A
and perform all obligations under these Agreements, without taking any action
or
any nonfeasance that sufficiently affects the validity and enforceability of
these Agreements;
3.
Representations
and Warranties: As of the execution date of this Agreement and every
transferring date, the Transferor and Party E hereby represents and warrants
collectively and respectively to Party A as follows:
3.1
It
has
the power and ability to enter into and deliver this Agreement, and any equity
interest transferring Agreement (“Transferring Agreement”, respectively) having
it as a party, for every single transfer of the Purchased Equity Interest
according to this Agreement, and to perform its obligations under this Agreement
and any Transferring Agreement. Upon execution, this Agreement and the
Transferring Agreements having it as a party constitute a legal, valid and
binding obligation of it enforceable against it in accordance with its
terms;
3.2
The
execution, delivery of this Agreement and any Transferring Agreement and
performance of the obligations under this Agreement and any Transferring
Agreement do not: (i) cause to violate any relevant laws and regulations of
PRC;
(ii) constitute a conflict with its Articles of Association or other
organizational documents; (iii) cause to breach any Agreement or instruments
to
which it is a party or having binding obligation on it, or constitute the breach
under any Agreement or instruments to which it is a party or having binding
obligation on it; (iv) cause to violate relevant authorization of any consent
or
approval to it and/or any continuing valid condition; or (v) cause any consent
or approval authorized to it to be suspended, removed, or into which other
requests be added;
3.3
Party
E
bears the kind and sellable ownership of all assets. Party E does not set any
security interest on the said assets;
3.4
Party
E
does not have any unpaid debt, other than (i) debt arising from its normal
business; and (ii) debt disclosed to Party A and obtained by the written consent
from Party A;
3.5
Party
E
comply with all PRC laws and regulations applicable to the acquisition of
assets;
3.6
No
litigation, arbitration or administrative procedure relevant to the equity
interest and assets of Party E or the corporation is in the process, to be
settled or potentially take place;
3.7
The
Transferor bears the fair and salable ownership of its equity interest without
setting any security interest on the aforesaid assets, other than the security
interest pursuant to the Equity Pledge Agreement.
4.
Assignment
of Agreement
4.1
Party
B,
Party C, Party D and Party E shall not transfer their rights and obligations
under this Agreement to any third party without the prior written consent of
the
Party A.
4.2
Party
B,
Party C, Party D and Party E hereby agrees that Party A shall be able to
transfer all of its rights and obligation under this Agreement to any third
party with its needs, and such transfer shall only be subject to a written
notice sent to Party B, Party C, Party D and Party E by Party A, and no any
further consent from Party B, Party C, Party D and Party E will be
required.
5.
Effective
Date and Term
5.1
This
Agreement shall be effective as of the date first set forth above.
5.2
The
term
of this Agreement is ten (10) years unless the early termination in accordance
with this Agreement or other terms of the relevant agreements stipulated by
the
Parties. This Agreement may be extended according to the written consent of
Party A before the expiration of this Agreement. The term of extension will
be
decided unanimously through the consultation of the Parties.
5.3
If
Party
A or Party E terminated by the expiration of its operating period (including
any
extended period) or other causes in the term set forth in Section 5.2, this
Agreement shall be terminated simultaneously, except Party A has transferred
its
rights and obligations in accordance with Section 4.2 of this
Agreement.
6.
Applicable
Law and Dispute Resolution
6.1
Applicable
Law: The execution, validity, construing and performance of this Agreement
and
the disputes resolution under this Agreement shall be governed by the laws
of
PRC.
6.2
Dispute
Resolution: The parties shall strive to settle any dispute arising from the
interpretation or performance in connection with this Agreement through friendly
consultation. In case no settlement can be reached through consultation within
thirty (30) days after such dispute is raised, each party can submit such matter
to China International Economic and Trade Arbitration Commission (the “CIETAC”)
in accordance with its rules. The arbitration shall take place in Beijing and
the proceedings shall be conducted in Chinese. The arbitration award shall
be
final conclusive and binding upon both parties.
7.
Taxes
and
Expenses: Every Party shall, according to the PRC laws, bear any and all
registering taxes, costs and expenses for equity transfer arising from the
preparation and execution of this Agreement and all Transferring Agreements,
and
the completion of the transactions under this Agreement and all Transferring
Agreements.
8.
Notices:
Notices or other communications required to be given by any party pursuant
to
this Agreement shall be written in English and Chinese and delivered personally
or sent by registered mail or postage prepaid mail or by a recognized courier
service or by facsimile transmission to the address of relevant each party
or
both parties set forth below or other address of the party or of the other
addressees specified by such party from time to time. The date when the notice
is deemed to be duly served shall be determined as the follows: (a) a notice
delivered personally is deemed duly served upon the delivery; (b) a notice
sent
by mail is deemed duly served the tenth (10th) day after the date when the
air
registered mail with postage prepaid has been sent out (as is shown on the
postmark), or the fourth (4th) day after the delivery date to the
internationally recognized courier service agency; and (c) a notice sent by
facsimile transmission is deemed duly served upon the receipt time as is shown
on the transmission confirmation of relevant documents.
Party
A:
JingWei HengTong Technology (ShenZhen) Co., Ltd.
Address:
Room 1605 B,Tianan Hi-tech Plaza Tower A,Tian An Cyber Park,Futian
District,Shenzhen,China
Attn:
Ms.
Xxx Xxxxx
Fax: 00-0000-00000000 Tel:
00-0000-00000000
Party
B:
Mr. JianGuo Du
Address:
Tianxiang Building Block A 13th, Tian An Cyber Park, Futian District,
Shenzhen.
Fax: 00-0000-00000000 Tel:
00-0000-00000000
Party
C:
Ms. AiLing Yin
Address:
Tianxiang Building Block A 13th, Tian An Cyber Park, Futian District,
Shenzhen.
Fax: 00-0000-00000000 Tel:
00-0000-00000000
Party
D:
Xx. XxxXxxx Yin
Address:
Tianxiang Building Block A 13th, Tian An Cyber Park, Futian District,
Shenzhen.
Fax: 00-0000-00000000 Tel:
00-0000-00000000
Party
E:
ShenZhen JingWei Communication Co., Ltd.
Address:
Tianxiang Building Block A 13th, Tian An Cyber Park, Futian District,
Shenzhen.
Attn:
Mr.
Xxx Xx
Fax: 00-0000-00000000 Tel:
00-0000-00000000
9.
Confidentiality:
The Parties acknowledge and confirm any oral or written materials exchanged
by
the Parties in connection with this Agreement are confidential. The Parties
shall maintain the secrecy and confidentiality of all such materials. Without
the written approval by the other Parties, any Party shall not disclose to
any
third party any relevant materials, but the following circumstances shall be
excluded:
a.
The
materials that is known or may be known by the Public (but not include the
materials disclosed by each party receiving the materials);
b.
The
materials required to be disclosed subject to the applicable laws or the rules
or provisions of stock exchange; or
c.
The
materials disclosed by each Party to its legal or financial consultant relating
the transaction of this Agreement, and this legal or financial consultant shall
comply with the confidentiality set forth in this Section. The disclosure of
the
confidential materials by staff or employed institution of any Party shall
be
deemed as the disclosure of such materials by such Party, and such Party shall
bear the liabilities for breaching the contract. This Clause shall survive
whatever this Agreement is invalid, amended, revoked, terminated or unable
to
implement by any reason.
10.
Further
Warranties: The Parties agree to promptly execute documents reasonably required
to perform the provisions and the aim of this Agreement or documents beneficial
to it, and to take actions reasonably required to perform the provisions and
the
aim of this Agreement or actions beneficial to it.
11.
Miscellaneous
11.1
Amendment,
Modification and Supplement: Any amendment and supplement of this Agreement
shall be made by the Parties in writing. The amendment and supplement duly
executed by each Party shall be deemed as a part of this Agreement and shall
have the same legal effect as this Agreement.
11.2
Entire
Agreement: Notwithstanding the Article 5 of this Agreement, the Parties
acknowledge that this Agreement constitutes the entire agreement of the Parties
with respect to the subject matters therein and supercede and replace all prior
or contemporaneous agreements and understandings in verb or/and in
writing.
11.3
Severability:
If any provision of this Agreement is judged as invalid or non-enforceable
according to relevant Laws, the provision shall be deemed invalid only within
the applicable area of the PRC Laws, and the validity, legality and
enforceability of the other provisions hereof shall not be affected or impaired
in any way. The Parties shall, through fairly consultation, replace those
invalid, illegal or non-enforceable provisions with valid provisions that may
bring the similar economic effects with the effects caused by those invalid,
illegal or non-enforceable provisions.
11.4
Headings:
The headings contained in this Agreement are for the convenience of reference
only and shall not affect the interpretation, explanation or in any other way
the meaning of the provisions of this Agreement.
11.5
Language
and Copies: This Agreement is executed in English in five (5) copies; each
Party
holds one and each original copy has the same legal effect.
11.6
Successor:
This Agreement shall bind and benefit the successor of each Party and the
transferee allowed by each Party.
11.7
Survival:
Any obligation taking place or at term hereof prior to the end or termination
ahead of the end of this Agreement shall continue in force and effect
notwithstanding the occurrence of the end or termination ahead of the end of
the
Agreement. Article 6, Article 8, Article 9 and Section 11.7 hereof shall
continue in force and effect after the termination of this
Agreement.
11.8
Waiver:
Any Party may waive the terms and conditions of this Agreement in writing with
the signature of the Parties. Any waiver by a Party to the breach by other
Parties within certain situation shall not be construed as a waiver to any
similar breach by other Parties within other situations.
IN
WITNESS THEREFORE, the parties hereof have caused this Agreement to be executed
by their duly authorized representatives as of the date first written
above.
Party
A:
JingWei HengTong Technology (ShenZhen) Co., Ltd.
Authorized
Representative:
Seal:
Party
B:
Mr. JianGuo Du
Signature:
Party
C:
Ms. AiLing Yin
Signature:
Party
D:
Xx. XxxXxxx Yin
Signature:
Party
E:
ShenZhen JingWei Communication Co., Ltd.
Authorized
Representative:
Seal:
