Contract
Exclusive
Option Agreement
[Original Chinese language text omitted]
Form
of
This
Exclusive Option Agreement (this "Agreement") is executed
by and among the following Parties as of the 17th day of April, 2009 in Fuzhou, the People’s
Republic of China (the “China” or the “PRC”):
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Party A:
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Fujian Across Express
Information Technology Co., Ltd. (formerly named as “Fuzhou
Shoushan Waterfall Group XX Xxxxxx Co.,
Ltd.”)
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Address:
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Xxxxxxxx
0, Xx. 00, Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, Xxxxx District,
Fuzhou
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Party
B:
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[________]
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ID
No.:
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[________]
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Party C:
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Fujian Fenzhong Media Co., Ltd.
(formerly named as “Fuzhou Fenzhong Co.,
Ltd.”)
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Address:
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Floor
22, Wuyi Center, Xx. 00 xx Xxxx Xxxxxx, Xxxxxx, Xxxxxx
Xxxxxxxx
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In this
Agreement, each of Party A, Party B and Party C shall be referred to as a
"Party" respectively, and they shall be collectively referred to as the
"Parties".
Whereas:
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1.
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Party
B holds 80/20% of the equity interest in Party
C.
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2.
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Party
A, Party B, Party C and [________], another Shareholders of Party C
(together with Party B, the“Shareholders of Fujian Fenzhong”), entered
into two agreements on November 2, 2003 and December 1, 2003 respectively
(collectively the “2003 Two Agreements”); The Parties and XX Xxxxxxx, a
Chinese natural person, entered into two agreements on January 2, 2008 and
July 10, 2008 respectively (collectively the “2008 Two Agreements”,
together with 2003 Two Agreements, the “Four Agreements”);
as provided in the Four Agreements, the parties thereof agreed
that, subject to Party A’s request, the parties shall enter into
additional agreements or documents relating to the matters and other
matters concerned in the Four Agreements in the form of supplementary
agreements.
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3.
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Party
A and Party B executed a Loan Agreement on the date of this Agreement (the
"Loan Agreement").
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Now
therefore, upon mutual discussion and negotiation, the Parties have reached the
following agreement:
Party A,
Party B and Party C, being the signing parties to the foregoing Four Agreements,
agree that this Agreement and another Exclusive Option Agreement executed on the
same date by and among Party A, Party C and BIAN Chun, another shareholder of
Party C, collectively constitute the supplementary agreement to the foregoing
Four Agreements.
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1.
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Sale and Purchase of
Equity Interest
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1.1
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Equity Interest
Purchase Option Grant
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In
consideration of the payment of RMB10 by Party A, the receipt and adequacy of
which is hereby acknowledged by Party B, Party B hereby irrevocably agrees that,
on the condition that it is permitted by the PRC laws, Party A has the right to
require Party B to fulfill and complete all approval and registration procedures
required under PRC laws for Party A to purchase, or designate one or more
persons (each, a "Designee") to purchase, Party B’s equity interests in Party C,
once or at multiple times at any time in part or in whole at Party A's sole and
absolute discretion and at the price described in Section 1.3 herein (such right
being the "Equity Interest Purchase Option"). Party A’s Equity Interest Purchase
Option shall be exclusive. Except for Party A and the Designee(s), no other
person shall be entitled to the Equity Interest Purchase Option or other rights
with respect to the equity interests of Party B. Party C hereby agrees to the
grant by Party B of the Equity Interest Purchase Option to Party A. The term
"person" as used herein shall refer to individuals, corporations, partnerships,
partners, enterprises, trusts or non-corporate organizations.
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1.2
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Exercise of Equity
Interest Purchase Option
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1.2.1
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Subject
to the provisions of the laws and regulations of China, Party A may
exercise the Equity Interest Purchase Option by issuing a written notice
to Party B (the "Equity Interest Purchase Option Notice"), specifying: (a)
Party A's intention to exercise the Equity Interest Purchase Option; (b)
the portion of equity interests to be purchased from Party B (the
"Optioned Interests"); and (c) the date for purchasing the Optioned
Interests and/or the date for transfer of the Optioned
Interests.
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1.2.2
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Except
for the foregoing, the Parties hereby agree and confirm that, to
the extent permitted by the PRC laws, in
the event any one or more of the following circumstances occur and except
for the waivers of Party A regarding the Equity Interest Purchase
Option, all of Party B’s equity interests in Party C shall be
automatically transferred to Party A and/or the
Designee(s):
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1.2.2.1
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Party
A's death, lack or limitation of civil
capacity;
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1.2.2.2
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Party
A ceases (for any reason) to be an employee of Party C or any of its
affiliated entities, or ceases to be a shareholder of Party
C;
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1.2.2.3
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Party
A engages in criminal act or is involved in criminal
activities;
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1.2.2.4
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Any
third party files a claim against Party A that exceeds
RMB1,000,000.
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1.3
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Equity Interest
Purchase Price
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The
purchase price of the Optioned Interests (the "Base Price") shall equal the
actual capital contributions paid in the registered capital of Party C by Party
B. If appraisal is required by the laws of China at the time when
Party A exercises the Equity Interest Purchase Option, the Parties shall
negotiate in good faith and, based on the appraisal result, make necessary
adjustment to the Equity Interest Purchase Price so that it complies with any
and all then applicable laws of China (collectively, the "Equity Interest
Purchase Price").
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1.4
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Transfer of Optioned
Interests
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For each
exercise of the Equity Interest Purchase Option:
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1.4.1
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Party
B shall cause Party C to promptly convene a shareholders’ meeting, at
which a resolution shall be adopted approving Party B's transfer of the
Optioned Interests to Party A and/or the
Designee(s);
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1.4.2
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Party
B shall obtain written consent from the other shareholders of Party C
regarding the transfer of the equity interest to Party A and/or the
Designee(s) and waivers of right of first refusal related
thereto.
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1.4.3
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Party
B shall execute a share transfer contract with respect to each transfer
with Party A and/or the Designee (whichever is applicable) in accordance
with the provisions of this Agreement and the Equity Interest Purchase
Option Notice;
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1.4.4
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The
relevant Parties shall execute all other necessary contracts, agreements
or documents, obtain all necessary government licenses and permits and
take all necessary actions to transfer valid ownership of the Optioned
Interests to Party A and/or the Designee(s), unencumbered by any security
interests, and cause Party A and/or the Designee(s) to become the
registered owner(s) of the Optioned Interests. For the purpose of this
Section and this Agreement, "security interests" shall include securities,
mortgages, third party's rights or interests, any stock options,
acquisition right, right of first refusal, right to offset, ownership
retention or other security arrangements, but shall be deemed to exclude
any security interest created by this Agreement and Party B's Equity
Pledge Agreement. "Party B's Equity Pledge Agreement" as used in this
Section and this Agreement shall refer to the Equity Interest Pledge
Agreement ("Party B’s Equity Pledge Agreement") executed by and among
Party A, Party B and Party C as of the date hereof, whereby Party B
pledges all of its equity interest in Party C to Party A, in order to
guarantee Party C's performance of its obligations under the Exclusive
Business Corporation Agreement executed by and between Party C and Party A
and guarantee Party B’s performance of his/her obligations under the Loan
Agreement executed by and between Party A and Party
B.
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1.5
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Payment
of the Equity Interest Purchase
Price
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The
Parties have agreed in the Loan Agreement that any proceeds obtained by Party B
through the transfer of its equity interests in Party C shall be used for
repayment of the loan provided by Party A in accordance with the Loan Agreement.
Accordingly, upon exercise of the Equity Interest Purchase Option, Party A may
elect to make payment of the Equity Interest Purchase Price through cancellation
of the outstanding amount of the loan owed by Party B to Party A, in which case
Party A shall not be required to pay any additional Equity Interest Purchase
Price to Party B.
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2.
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Covenants |
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2.1
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Covenants regarding
Party C
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Party B
(as the shareholders of Party C) and Party C hereby covenant jointly and
severally as follows:
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2.1.1
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Without
the prior written consent of Party A, they shall not in any manner
supplement, change or amend the articles of association and bylaws of
Party C, increase or decrease its registered capital, or change its
structure of registered capital by any
means;
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2.1.2
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They
shall maintain Party C's corporate existence in accordance with good
financial and business standards and practices by prudently and
effectively operating its business and handling its
affairs;
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2.1.3
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Without
the prior written consent of Party A, they shall not at any time following
the date hereof, sell, transfer, mortgage or dispose of in any manner any
assets of Party C or legal or beneficial interest in the business or
revenues of Party C, or allow the encumbrance thereon of any security
interest;
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2.1.4
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Without
the prior written consent of Party A, they shall not incur, inherit,
guarantee or suffer the existence of any debt, except for (i) debts
incurred in the ordinary course of business other than through loans; and
(ii) debts disclosed to Party A for which Party A's written consent has
been obtained;
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2.1.5
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They
shall always operate all of Party C's businesses during the ordinary
course of business to maintain the asset value of Party C and refrain from
any action/omission that may adversely affect Party C's operating
condition and asset value;
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2.1.6
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Without
the prior written consent of Party A, they shall not cause Party C to
execute any major contract outside the ordinary course of its business
(for purposes of this subsection, a contract with a price exceeding
RMB50,000 shall be deemed a major
contract);
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2.1.7
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Without
the prior written consent of Party A, they shall not cause Party C to
provide any person with any loan or
credit;
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2.1.8
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To
provide Party A with the annual budget of Party C for Party A’s review and
approval, and to ensure that the operating expenses of Party C shall not
exceed the annual budget approved by the Party A；
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2.1.9
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They
shall provide Party A with information on Party C's business operations
and financial condition at Party A's
request;
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2.1.10
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If
requested by Party A, they shall procure and maintain insurance in respect
of Party C's assets and business from an insurance carrier acceptable to
Party A, at an amount and type of coverage typical for companies that
operate similar businesses;
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2.1.11
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Without
the prior written consent of Party A, they shall not cause or permit Party
C to merge, consolidate with, acquire or invest in any
person;
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Exclusive
Option Agreement
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2.1.12
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They
shall immediately notify Party A of the occurrence or possible occurrence
of any litigation, arbitration or administrative proceedings relating to
Party C's assets, business or
revenue;
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2.1.13
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To
maintain the ownership by Party C of all of its assets, they shall execute
all necessary or appropriate documents, take all necessary or appropriate
actions and file all necessary or appropriate complaints or raise
necessary and appropriate defenses against all
claims;
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2.1.14
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Without
the prior written consent of Party A, they shall ensure that Party C shall
not in any manner distribute dividends to its shareholders, provided that
upon Party A's written request, Party C shall immediately distribute all
distributable profits to its shareholders;
and
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2.1.15
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At
the request of Party A, they shall appoint any persons designated by Party
A as directors of Party C.
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2.2
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Covenants of Party
B
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Party B
hereby covenants as follows:
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2.2.1
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Without
the prior written consent of Party A, Party B shall not sell, transfer,
mortgage or dispose of in any other manner any legal or beneficial
interest in the equity interests in Party C held by Party B, or allow the
encumbrance thereon of any security interest, except for the pledge placed
on these equity interests in accordance with Party B's Equity Pledge
Agreement;
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Exclusive
Option Agreement
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2.2.2
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Party
B shall cause the shareholders' meeting and/or the board of directors of
Party C not to approve the sale, transfer, mortgage or disposition in any
other manner of any legal or beneficial interest in the equity interests
in Party C held by Party B, or allow the encumbrance thereon of any
security interest, without the prior written consent of Party A, except
for the pledge placed on these equity interests in accordance with Party
B's Equity Pledge Agreement;
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2.2.3
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Party
B shall cause the shareholders' meeting or the board of directors of Party
C not to approve the merger or consolidation with any person, or the
acquisition of or investment in any person, without the prior written
consent of Party A;
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2.2.4
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Party
B shall immediately notify Party A of the occurrence or possible
occurrence of any litigation, arbitration or administrative proceedings
relating to the equity interests in Party C held by Party
B;
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2.2.5
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Party
B shall cause the shareholders' meeting and/or the board of directors of
Party C to vote for the transfer of the Optioned Interests as set forth in
this Agreement and to take any and all other actions that may be requested
by Party A;
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Exclusive
Option Agreement
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2.2.6
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To
the extent necessary to maintain Party B's ownership in Party C, Party B
shall execute all necessary or appropriate documents, take all necessary
or appropriate actions and file all necessary or appropriate complaints or
raise necessary and appropriate defenses against all
claims;
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2.2.7
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Party
B shall appoint any designee of Party A as director of Party C, at the
request of Party A;
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2.2.8
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At
the request of Party A at any time, Party B shall promptly and
unconditionally transfer its equity interests in Party C to Party A's
Designee(s) in accordance with the Equity Interest Purchase Option under
this Agreement, and Party B hereby waives its right of first refusal to
the respective share transfer by the other existing shareholder of Party C
(if any); and
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2.2.9
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Party
B shall strictly abide by the provisions of this Agreement and other
contracts jointly or separately executed by and among Party B, Party C and
Party A, perform the obligations hereunder and thereunder, and refrain
from any action/omission that may affect the effectiveness and
enforceability thereof.
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3.
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Representations and
Warranties
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Party B
and Party C hereby represent and warrant to Party A, jointly and severally, as
of the date of this Agreement and each date of transfer of the Optioned
Interests, that:
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Option Agreement
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3.1
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They
have the authority to execute and deliver this Agreement and any share
transfer contracts to which they are parties concerning the Optioned
Interests to be transferred thereunder (each, a "Transfer Contract"), and
to perform their obligations under this Agreement and any Transfer
Contracts. Party B and Party C agree to enter into Transfer Contracts
consistent with the terms of this Agreement upon Party A’s exercise of the
Equity Interest Purchase Option. This Agreement and the Transfer Contracts
to which they are parties constitute or will constitute their legal, valid
and binding obligations and shall be enforceable against them in
accordance with the provisions
thereof;
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3.2
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The
execution and delivery of this Agreement or any Transfer Contracts and the
obligations under this Agreement or any Transfer Contracts shall not: (i)
cause any violation of any applicable laws of China; (ii) be inconsistent
with the articles of association, bylaws or other organizational documents
of Party C; (iii) cause the violation of any contracts or instruments to
which they are a party or which are binding on them, or constitute any
breach under any contracts or instruments to which they are a party or
which are binding on them; (iv) cause any violation of any condition for
the grant and/or continued effectiveness of any licenses or permits issued
to either of them; or (v) cause the suspension or revocation of or
imposition of additional conditions to any licenses or permits issued to
either of them;
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3.3
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Party
B has a good and marketable title to the equity interests in Party C he
holds. Except for Party B's Equity Pledge Agreement, Party B has not
placed any security interest on such equity
interests;
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Exclusive
Option Agreement
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3.4
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Party
C has a good and marketable title to all of its assets, and has not placed
any security interest on the aforementioned
assets;
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3.5
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Party
C does not have any outstanding debts, except for (i) debt incurred in the
ordinary course of business; and (ii) debts disclosed to Party A for which
Party A's written consent has been
obtained.
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3.6
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Party
C has complied with all laws and regulations of China applicable to equity
or asset acquisitions; and
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3.7
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There
are no pending or threatened litigation, arbitration or administrative
proceedings relating to the equity interests in Party C, assets of Party C
or Party C.
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4.
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Effective
Date
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This
Agreement shall become effective upon the date hereof, and remain effective for
a term of 10 years, and may be automatically renewed for an additional 10 years
upon expiration, provided that no objection is made by Party A within 20 days
prior to each tenth anniversary.
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5.
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Governing Law and
Resolution of Disputes
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5.1
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Governing
law
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The
execution, validity, interpretation, performance, amendment and termination of
this Agreement and the resolution of disputes hereunder shall be governed by the
formally published and publicly available laws of China. Matters not covered by
formally published and publicly available laws of China shall be governed by
international legal principles and practices.
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Exclusive
Option Agreement
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5.2
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Resolution of
Disputes
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In the
event of any dispute with respect to the interpretation and performance of this
Agreement, the Parties shall first resolve the dispute through friendly
negotiations. In the event the Parties fail to reach an agreement to resolve the
dispute within 30 days after either Party's request to the other Parties for
resolution of the dispute through friendly negotiations, either Party may submit
the relevant dispute to the China International Economic and Trade Arbitration
Commission for arbitration, in accordance with its then effective Arbitration
Rules. The arbitration shall be conducted in Fuzhou, and the language used in
arbitration shall be Mandarin Chinese. The arbitration award shall be final and
binding on all Parties.
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6.
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Taxes and
Fees
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Each
Party shall pay any and all transfer and registration tax, expenses and fees
incurred thereby or levied thereon in accordance with the laws of China in
connection with the preparation and execution of this Agreement and the Transfer
Contracts, as well as the consummation of the transactions contemplated under
this Agreement and the Transfer Contracts.
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Exclusive
Option Agreement
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7.
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Notices |
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7.1
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All
notices and other communications required or permitted to be given
pursuant to this Agreement shall be delivered personally or sent by
registered mail, postage prepaid, by a commercial courier service or by
facsimile transmission to the address of such Party set forth
below. A confirmation copy of each notice shall also be sent by
email. The dates on which notices shall be deemed to have been
effectively given shall be determined as
follows:
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7.1.1
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Notices
given by personal delivery, by courier service or by registered mail,
postage prepaid, shall be deemed effectively given on the date of delivery
or refusal at the address specified for
notices.
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7.1.2
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Notices
given by facsimile transmission shall be deemed effectively given on the
date of successful transmission (as evidenced by an automatically
generated confirmation of
transmission).
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7.2
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For the purpose of notices, the addresses of the Parties are as follows: |
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Party A:
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Fujian
Across Express Information Technology Co.,
Ltd.
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Address:
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Floor
22, Wuyi Center, Xx. 00 xx Xxxx Xxxxxx, Xxxxxx, Xxxxxx
Xxxxxxxx
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Party B:
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[________]
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Address:
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Xxxxx
00, Xxxx Center, Xx. 00 xx Xxxx Xxxxxx, Xxxxxx, Xxxxxx
Xxxxxxxx
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Party C:
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Fujian
Fenzhong Co., Ltd.
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Address:
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Floor
22, Wuyi Center, Xx. 00 xx Xxxx Xxxxxx, Xxxxxx, Xxxxxx
Xxxxxxxx
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Option Agreement
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7.3
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Any
Party may at any time change its address for notices by a notice delivered
to the other Parties in accordance with the terms
hereof.
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8.
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Confidentiality |
The
Parties acknowledge that the existence and the terms of this Agreement and any
oral or written information exchanged between the Parties in connection with the
preparation and performance this Agreement are regarded as confidential
information. Each Party shall maintain confidentiality of all such confidential
information, and without obtaining the written consent of the other Party, it
shall not disclose any relevant confidential information to any third parties,
except for the information that: (a) is or will be in the public domain (other
than through the receiving Party’s unauthorized disclosure); (b) is under the
obligation to be disclosed pursuant to the applicable laws or regulations, rules
of any stock exchange, or orders of the court or other government authorities;
or (c) is required to be disclosed by any Party to its shareholders, investors,
legal counsels or financial advisors regarding the transaction contemplated
hereunder, provided that such shareholders, investors, legal counsels or
financial advisors shall be bound by the confidentiality obligations similar to
those set forth in this Section. Disclosure of any confidential information by
the staff members or agencies hired by any Party shall be deemed disclosure of
such confidential information by such Party, which Party shall be held liable
for breach of this Agreement. This Section shall survive the termination of this
Agreement for any reason.
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Exclusive
Option Agreement
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9.
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Further
Warranties
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The
Parties agree to promptly execute documents that are reasonably required for or
are conducive to the implementation of the provisions and purposes of this
Agreement and take further actions that are reasonably required for or are
conducive to the implementation of the provisions and purposes of this
Agreement.
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10.
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Miscellaneous
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10.1
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Amendment, change and
supplement
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Any
amendment, change and supplement to this Agreement shall require the execution
of a written agreement by all of the Parties.
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10.2
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Entire
agreement
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Except
for the amendments, supplements or changes in writing executed after the
execution of this Agreement, this Agreement shall constitute the entire
agreement reached by and among the Parties hereto with respect to the subject
matter hereof, and shall supercede all prior oral and written consultations,
representations and contracts reached with respect to the subject matter of this
Agreement.
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10.3
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Headings
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The
headings of this Agreement are for convenience only, and shall not be used to
interpret, explain or otherwise affect the meanings of the provisions of this
Agreement.
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Exclusive
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10.4
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Language
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This
Agreement is written in both Chinese and English language in three counter
copies, each Party having one copy with equal legal validity. In the event of
any conflict between the Chinese version and the English version, the
Chinese version
shall prevail.
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10.5
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Severability
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In the
event that one or several of the provisions of this Agreement are found to be
invalid, illegal or unenforceable in any aspect in accordance with any laws or
regulations, the validity, legality or enforceability of the remaining
provisions of this Agreement shall not be affected or compromised in any
respect. The Parties shall strive in good faith to replace such invalid, illegal
or unenforceable provisions with effective provisions that, to the greatest
extent permitted by law, accomplish the intentions of the Parties, and the
economic effect originally intended by the Parties.
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10.6
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Successors
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This
Agreement shall be binding on and shall inure to the interest of the respective
successors of the Parties and the permitted assigns of such
Parties.
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Exclusive
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10.8
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Survival
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10.8.1
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Any
obligations that occur or that are due as a result of this Agreement upon
the expiration or early termination of this Agreement shall survive the
expiration or early termination
thereof.
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10.8.2
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The
provisions of Sections 5, 7, 8 and this Section 10.8 shall survive the
termination of this
Agreement.
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10.9
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Waivers |
Any Party
may waive the terms and conditions of this Agreement, provided that such a
waiver must be provided in writing and shall require the signatures of the
Parties. No waiver by any Party in certain circumstances with respect to a
breach by other Parties shall operate as a waiver by such a Party with respect
to any similar breach in other circumstances.
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Exclusive
Option Agreement
IN
WITNESS WHEREOF, the Parties have executed, or caused their authorized
representatives to execute this Exclusive Option Agreement as of the date first
above written.
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Party A:
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Fujian
Across Express Information Technology Co., Ltd.
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By:
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Name:
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XXXXX
Xxxxx
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Title:
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Legal
Representative
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Party
B:
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[________]
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By:
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Party
C:
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Fujian
Fenzhong Media Co., Ltd.
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By:
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Name:
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XXXXX
Xxxxx
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Title:
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Legal
Representative
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