EXHIBIT 4.5
FORM OF TERMINATION AGREEMENT
BY AND AMONG
NINETOWNS DIGITAL WORLD TRADE HOLDINGS LIMITED
JITTER BUG HOLDINGS LIMITED
AIG ASIAN OPPORTUNITY FUND, L.P.
AMERICAN INTERNATIONAL ASSURANCE COMPANY (BERMUDA) LIMITED
THE OTHER SHAREHOLDERS LISTED IN SCHEDULE A
XXXXXX XXXX
AND
MIN DONG
DATED AS OF NOVEMBER 2, 2004
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "AGREEMENT") dated as of November 2, 2004 is
entered into by and among:
(1) NINETOWNS DIGITAL WORLD TRADE HOLDINGS LIMITED, a company established
under the laws of the Cayman Islands with limited liability and having
its registered office at Century Yard, Cricket Square, Xxxxxxxx Drive,
P.O. Box 2681 GT, Xxxxxx Town, Grand Cayman, British West Indies, and
registered as an overseas company in Hong Kong having its principal
place of business in Hong Kong at Xxxx 0000, Xxxxxxxxx Xxxxx, 00 Xxx
Xxxxx Xxxx Xxxxxxx, Xxxx Xxxx (the "COMPANY");
(2) JITTER BUG HOLDINGS LIMITED, a company established under the laws of
the British Virgin Islands and having its registered office at P.O. Box
957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin
Islands ("JITTER BUG");
(3) AIG ASIAN OPPORTUNITY FUND, L.P., an exempted limited partnership
formed under the laws of the Cayman Islands having its registered
office x/x Xxxxxx & Xxxxxx, X.X. Xxx 000, Xxxxxx Xxxxx, Xxxxx Church
Street, Xxxxxx Town, Grand Cayman, Cayman Islands ("AOF");
(4) AMERICAN INTERNATIONAL ASSURANCE COMPANY (BERMUDA) LIMITED, a company
established under the laws of Bermuda and having its registered office
at American International Building, 00 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx
XX 00, Xxxxxxx ("XXXX");
(5) THE OTHER SHAREHOLDERS LISTED IN SCHEDULE A HERETO (the "OTHER
SHAREHOLDERS");
(6) XXXXXX XXXX ("XX. XXXX"), with an office at Unit 2501, Worldwide House,
00 Xxx Xxxxx Xxxx Xxxxxxx, Xxxx Xxxx; and
(7) MIN DONG ("XX. XXXX"), with an office at Unit 2501, Worldwide House,
00 Xxx Xxxxx Xxxx Xxxxxxx, Xxxx Xxxx.
WITNESSETH:
WHEREAS, the parties hereto are parties to a certain Shareholders' Agreement
dated October 22, 2003 (the "SHAREHOLDERS' Agreement").
WHEREAS, the parties hereto are parties to the sale and purchase agreements and
share subscription agreements listed on Schedule B hereto (the "SCHEDULE B
AGREEMENTS").
WHEREAS, the Company intends to conduct an initial public offering of American
Depositary Shares (the "ADSs") and list the ADSs on the Nasdaq National Market
(the "OFFERING").
WHEREAS, in order to facilitate the Offering, the parties hereto wish to
terminate the Shareholders' Agreement and the Schedule B Agreements on the
conditions and with the exceptions set forth herein.
NOW, THEREFORE, in consideration of the agreements herein contained and other
good and valuable consideration, receipt of which is hereby acknowledged, each
of the parties hereto hereby agrees as follows:
1. DEFINITIONS
Terms defined in the Shareholders' Agreement are used herein as defined
therein, unless otherwise provided herein.
2. COMMENCEMENT AND TERMINATION OF THIS AGREEMENT
2.1 Subject to Section 4 hereof, this Agreement shall be effective
immediately prior to the execution of the Underwriting Agreement (the
"UNDERWRITING AGREEMENT") among the several underwriters named in Schedule I
thereto, the persons named in Schedule II thereto and the Company in connection
with the Offering.
2.2 If the closing of the Offering (the "CLOSING") does not occur by
February 28, 2005, this Agreement shall immediately terminate, and such
termination, release, discharge and other promises in Section 3.1 hereof shall
be null and void ab initio and the Shareholders' Agreement and the Schedule B
Agreements shall be, and continue to be, valid, binding and subsisting in all
respects at all times as if the provisions in Sections 3.1, 5 and 6 hereof had
not come into effect at any time. Notwithstanding anything herein to the
contrary, Section 4 hereof shall be effective as of the date of this Agreement
and shall survive termination thereof pursuant to this Section 2.2. For the
avoidance of doubt, each of the parties hereto agrees that in the event that the
Closing does not occur by February 28, 2005, the parties hereto shall be bound
by, and entitled to the rights and remedies under, the terms and conditions set
out in the Shareholders' Agreement and the Schedule B Agreements.
3. TERMINATION
3.1 Subject to Section 3.2 hereof, each of the parties hereto agrees that
each of the Shareholders' Agreement and the Schedule B Agreements shall be
terminated and all of the respective rights and obligations of the parties
thereto shall become null and void and be of no further effect. Upon such
termination of the Shareholders' Agreement and the Schedule B Agreements, each
of the parties hereto releases and discharges the other parties from all
responsibilities and obligations under the Shareholders' Agreement and the
Schedule B Agreements and from all sums of money, accounts, actions,
proceedings, claims and demands whatsoever which any of them may have against
each of the others for or by
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reason or in respect of any act, obligation, matter or thing arising out of the
Shareholders' Agreement or any of the Schedule B Agreements.
3.2 Notwithstanding Section 3.1 hereof, the rights and remedies of AOF,
AIAB and the Other Shareholders arising prior to the date hereof to seek relief
from the Company, Jitter Bug, Xx. Xxxx and Xx. Xxxx for any loss or damage
sustained due to a breach, as of the indicated date, of a representation or
warranty set forth in the following clauses and schedules shall not be affected
(terms used in this Section 3.2 are defined in Schedule B hereto):
(a) Clause 15 of the Shareholders' Agreement as of October 22,
2003;
(b) Clauses 5(a), 10.1, 10.3 and Schedule 4 of the Titan Sale and
Purchase Agreement, as of October 3, 2003, and as of the Completion Date stated
therein;
(c) Clauses 10.1, 10.3, 11.1, 11.3 and Schedule 5 of the CEA/MMFI
Sale and Purchase Agreement as of October 8, 2003, and as of the Completion Date
stated therein;
(d) Clauses 6.1, 6.2, 6.4, 6.5 and Schedule 3 of the Ever Praise
Subscription Agreement as of October 8, 2003, and as of the Completion Date
stated therein;
(e) Clauses 5.1, 5.3 to 5.8 and Schedule 5 of the AIG Share
Subscription Agreement as of October 9, 2003, and as of the Completion Date
stated therein;
(f) Clauses 5(a), 10.1, 10.3 and Schedule 3 of the Huitung Sale
and Purchase Agreement, as of October 16, 2003, and as of the Completion Date
stated therein; and
(g) Clauses 7.1, 7.2, 7.4, 7.5 and Schedule 4 of each of the Titan
Subscription Agreement and the Ferndale Subscription Agreement, in each case as
of December 11, 2003 and as of the respective Completion Dates stated therein;
3.3 Each party hereto confirms that the respective put options granted by
Jitter Bug and the Company to AOF and AIAB, and to the Other Shareholders
pursuant to the Schedule B Agreements, are hereby made null and void.
4. CONSENT AND WAIVER TO SALES
4.1 Each of the parties hereto hereby consents to the Offering, including
sales of ADSs by the parties hereto.
4.2 Each of the Shareholders (as defined below) hereby acknowledges and
waives any and all rights it may have with respect to:
(a) the sale (the "2002 SALE") by Jitter Bug of a 6% equity
interest in the Company, pursuant to four agreements, each dated as of February
22, 2002, by and between Jitter Bug and each of Xxxxxxxxx Xxx, Xxxxx Xx, Xxxxx
Xxx Xxx Fork and Ping
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Sun Xxx, for an aggregate consideration of HK$40, and the subsequent transfer by
Jitter Bug of 330,000 ordinary shares to Messrs. Ren, Wu, Fork and Xxx,
representing such 6% equity interest;
(b) the issuance of ordinary shares by the Company pursuant to the
exercise of vested share options granted under the Company's Employee Share
Option Scheme adopted by the Company on November 18, 2003;
(c) the issuance of three ordinary shares by the Company to AOF
and one ordinary share to AIAB pursuant to Section 2.1 and Schedule 3 of the AIG
Share Subscription Agreement; and
(d) the issuance of 500,578 ordinary shares by the Company to
Value Chain International Limited ("VALUE CHAIN") pursuant to the Value Chain
Share Sale and Purchase Agreement.
4.3 For the avoidance of doubt, this Section 4 shall be effective as of the
date of this Agreement and shall survive termination thereof pursuant to Section
2.2 hereof.
5. LOCK-UP
5.1 Xx. Xxxx and Xx. Xxxx each agrees that he or she shall not make or
effect any sale, assignment, exchange or transfer, or grant any option, right of
first refusal or other right or interest whatsoever or enter into agreement for
any of the same or otherwise dispose of, either directly or indirectly, any
Shares they own as of the Closing for the period commencing from the date hereof
until the earlier of (a) the date 15 months after the Closing; or (b) such date
on which AOF and AIAB shall hold less than 312,002 Shares, in the aggregate.
5.2 Jitter Bug agrees that it shall not not make or effect any sale,
assignment, exchange or transfer, or grant any option, right of first refusal or
other right or interest whatsoever or enter into agreement for any of the same
or otherwise dispose of any Shares it owns as of the Closing for the period
commencing from the date hereof until the earlier of (a) the date 15 months
after the Closing; or (b) such date on which AOF and AIAB shall hold less than
312,002 Shares, in the aggregate; provided, however, subject to AOF's prior
written consent, Jitter Bug may sell its Shares 180 days after the Closing and
prior to the expiration of the periods described in (a) and (b) above, as a part
of a registered follow-on offering or private sale of ADSs or Shares by the
Company and/or any of the Shareholders.
6. RESTRICTIONS ON USE OF BUSINESS OPPORTUNITIES
6.1 For so long as the ADSs are listed on the Nasdaq National Market, the
Company shall conduct an appropriate review of and approve all related party
transactions on an
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ongoing basis. The Company shall utilize the audit committee of the board of
directors (the "BOARD") of the Company for such review and approval.
6.2 Each of Jitter Bug, Xx. Xxxx and Xx. Xxxx hereby undertakes that,
during the period commencing on the date hereof and expiring on the date two
years after the last day of:
(a) with respect to Jitter Bug, the day on which it beneficially
owns less than 5% of the outstanding capital stock of the Company or any of its
subsidiaries; and
(b) with respect to Xx. Xxxx and Xx. Xxxx, the day on which Xx.
Xxxx and Xx. Xxxx together beneficially own less than 1% of the outstanding
capital stock of the Company and each ceases to be a director or officer of the
Company or any of its subsidiaries;
neither Jitter Bug, Xx. Xxxx nor Xx. Xxxx shall, without the Company's prior
written consent, (i) within the People's Republic of China (which, for the
purpose of this Agreement, includes Hong Kong, Macau and Taiwan) directly or
indirectly carry on or be engaged in any activity or business which shall be in
competition with the business of the Company; or (ii) solicit or entice away, or
endeavour to solicit or entice away, any employee of the Company or any of its
subsidiaries.
7. MISCELLANEOUS.
7.1 Due Authorization. Each of the Shareholders and the Company hereby
represents and warrants that it has full power and authority to enter into this
Agreement. All authority herein conferred or agreed to be conferred and any
obligations of the Shareholders and the Company shall be binding upon the
successors, assigns, heirs or personal representatives of the Shareholders.
7.2 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
7.3 Governing Law. This Agreement shall be governed by and construed in
accordance with Hong Kong law, and the parties agree to submit to the
non-exclusive jurisdiction of the Hong Kong courts.
7.4 Headings. The headings and captions used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement. All references in this Agreement to sections and schedules shall,
unless otherwise provided, refer to sections hereof and schedules attached
hereto, all of which schedules are incorporated herein by this reference.
7.5 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a
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particular instance), only with the written consent of the parties hereto. Any
amendment or waiver effected in accordance with this Section 7.5 shall be
binding upon each party hereto.
7.6 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision(s) shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
7.7 Entire Agreement. This Agreement, together with all schedules hereto,
constitutes the entire agreement and understanding of the parties hereto with
respect to the subject matter hereof and supersedes any and all prior
negotiations, correspondence, agreements, understandings, duties or obligations
between the parties hereto with respect to the subject matter hereof.
7.8 Further Assurances. From and after the date of this Agreement, each of
the parties hereto shall execute and deliver such instruments, documents or
other writings as may be reasonably necessary or desirable to confirm and carry
out and to effectuate fully the intent and purposes of this Agreement.
7.9 Notice; Service of Process.
(a) All notices, requests, consents and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally, sent by overnight
courier, mailed by registered or certified mail (notices mailed shall be deemed
to have been given on the date mailed) at the address set forth next to each
party's name on page 1 hereto or the address set forth opposite each party's
name in Schedule A hereto, as the case may be.
(b) Each of the parties hereto hereby irrevocably authorizes and
appoints the agent described below opposite its name (or such other person being
resident of or incorporated in Hong Kong as it may by notice to the other
parties substitute) to accept service of all legal process arising out of or in
connection with this Agreement and service on such agent (or such substitute)
shall be deemed to be service on the party concerned.
NAME ADDRESS AND FAX NUMBER
---- ----------------------
- Ninetowns Digital World Trade Holdings Ninetowns Digital World Trade Holdings Limited
Limited Unit 2501, Worldwide House
- Jitter Bug Holdings Limited Xx. 00 Xxx Xxxxx Xxxx Xxxxxxx
- Xxxx Xxxxxx
- Xxxx Min Fax: (000) 0000 0000
- Ever Praise Holdings Limited
- Titan I Venture Capital Co., Ltd.
- Titan II Venture Capital Co., Ltd.
- CFM Investments Limited-CFM Greater
China Fund
6
- UOB Venture (Shenzhen) Limited
- Huitung Investments (BVI) Limited
- Value Chain International Limited
- Ferndale Associates Limited
- AIG Asian Opportunity G.P., L.L.C., in its AIG Global Investment Corporation (Asia) Ltd.
capacity as general partner for AIG Asian Suites 3601 & 10-12
Opportunity Fund, L.P. One Pacific Place
88 Queensway
- American International Assurance Company Hong Kong
(Bermuda) Limited
Fax number: (000) 0000 0000
China Equity Associates L.P. Suez Asia Holdings (Hong Kong) Limited
Suite 5004
One Exchange Square,
0 Xxxxxxxxx Xxxxx
Xxxxxxx
Xxxx Xxxx
Fax number: (000) 0000 0000
MMFI Capi Venture Investments Limited JAIC
Suite 1112
Two Xxxxxxx Xxxxx
00 Xxxxxxxxx
Xxxxxxxxx
Xxxx Xxxx
Fax number: (000) 0000 0000
7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day shown on the first page of this Agreement.
NINETOWNS DIGITAL WORLD TRADE
HOLDINGS LIMITED
By:
------------------------------------
Name:
Title:
JITTER BUG HOLDINGS LIMITED
By:
------------------------------------
Name:
Title:
AIG ASIAN OPPORTUNITY G.P., L.L.C., in its
capacity as general partner for AIG ASIAN
OPPORTUNITY FUND, L.P.
By:
------------------------------------
Name:
Title:
8
AMERICAN INTERNATIONAL ASSURANCE
COMPANY (BERMUDA) LIMITED
By:
------------------------------------
Name:
Title:
EVER PRAISE HOLDINGS LIMITED
By:
------------------------------------
Name:
Title:
TITAN I VENTURE CAPITAL CO., LTD.
By:
------------------------------------
Name:
Title:
TITAN II VENTURE CAPITAL CO., LTD.
By:
------------------------------------
Name:
Title:
0
XXX XXXXXXXXXXX XXXXXXX-XXX XXXXXXX
XXXXX FUND
By:
------------------------------------
Name:
Title:
CHINA EQUITY PARTNERS LIMITED, as general
partner for CHINA EQUITY ASSOCIATES L.P.
By:
------------------------------------
Name:
Title:
MMFI CAPI VENTURE INVESTMENTS LIMITED
By:
------------------------------------
Name:
Title:
UOB VENTURE (SHENZHEN) LIMITED
By:
------------------------------------
Name:
Title:
10
HUITUNG INVESTMENTS (BVI) LIMITED
By:
------------------------------------
Name:
Title:
FERNDALE ASSOCIATES LIMITED
By:
------------------------------------
Name:
Title:
VALUE CHAIN INTERNATIONAL LIMITED
By:
------------------------------------
Name:
Title:
----------------------------------------
XXXXXX XXXX
----------------------------------------
MIN DONG
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SCHEDULE A
OTHER SHAREHOLDERS
Company Name Notice Address Jurisdiction
------------ -------------- ------------
1. EVER PRAISE HOLDINGS LIMITED Room 701, Euro Trade Centre British Virgin Islands
00-00 Xxx Xxxxx Xxxx Xxxxxxx
Xxxx Xxxx
2. TITAN I VENTURE CAPITAL 00/X., 0 Xxx Xxx X. Xxxx Xxxxxx
CO., LTD. Taipei
Taiwan
3. TITAN II VENTURE CAPITAL 10/F., 6 Tun Hwa N. Road Taiwan
CO., LTD. Taipei
Taiwan
4. CFM INVESTMENTS LIMITED-CFM 0/X., 00X Xxxxxxx Xxxxx Xxxxxx Xxxxxxx
XXXXXXX XXXXX FUND Xx. Xxx'x Drive, Xxxxxx Town
Grand Cayman, Cayman Islands
British, West Indies
5. CHINA EQUITY ASSOCIATES L.P. Suite 5004 Cayman Islands
Xxx Xxxxxxxx Xxxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxxx
Xxxx Xxxx
6. MMFI CAPI VENTURE Suite 1112 British Virgin Islands
INVESTMENTS LIMITED Two Xxxxxxx Xxxxx
00 Xxxxxxxxx
Xxxxxxxxx
Xxxx Xxxx
7. UOB VENTURE (SHENZHEN) SZVC UOB Venture Management Co., Ltd. Mauritius
LIMITED Fl. 00, Xxxxxxxxxx Xxxxxxxx, Xx.
0000, Xxxxxxx Xxxx
Xxxxxx Xxxxxxx Xxxxxxxx, Xxxxxxxx,
X.X. Xxxxx 000000
Gen Line: (00) 000 00000000
Fax: (00) 000 0000 0000
Attention: Mr. Xxx Xxxx Xxx and Xx.
Xxxxx Xxx
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8. HUITUNG INVESTMENTS (BVI) P.O. Box 3140 British Virgin Islands
LIMITED Road Town, Tortola
British Virgin Islands
9. FERNDALE ASSOCIATES LIMITED X.X. Xxx 00-000 Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxx 105
10. VALUE CHAIN INTERNATIONAL c/o Offshore Incorporations Limited British Virgin Islands
LIMITED P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
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SCHEDULE B
SCHEDULE B AGREEMENTS
AGREEMENT PARTIES DATE
--------- ------- ----
1. Sale and Purchase Agreement relating to Jitter Bug Holdings Limited October 3, 2003
Shares in Ninetowns Digital World Trade
Holdings Limited ("TITAN SALE AND UOB Venture (Shenzhen) Limited
PURCHASE AGREEMENT")
Titan I Venture Capital Co., Ltd.
Titan II Venture Capital Co., Ltd.
CFM Investments Limited - CFM Greater
China Fund
Ninetowns Digital World Trade Holdings
Limited
2. Sale and Purchase Agreement relating to Jitter Bug Holdings Limited October 8, 2003
Shares in Ninetowns Digital World Trade
Holdings Limited ("CEA/MMFI SALE AND China Equity Associates L.P.
PURCHASE AGREEMENT")
MMFI CAPI Venture Investments Limited
Ninetowns Digital World Trade Holdings
Limited
3. Subscription Agreement for 195,000 Ninetowns Digital World Trade Holdings October 8, 2003
Shares in Ninetowns Digital World Trade Limited
Holdings Limited ("EVER PRAISE
SUBSCRIPTION AGREEMENT") Ever Praise Holdings Limited
4. Share Subscription Agreement concerning Ninetowns Digital World Trade Holdings October 9, 2003
624,004 Shares in Ninetowns Digital Limited
World Trade Holdings Limited ("AIG
SUBSCRIPTION AGREEMENT") Jitter Bug Holdings Limited
AIG Asian Opportunity Fund, L.P.
American International Assurance Company
(Bermuda) Limited
Xxxx Xxxxxx
Dong Min
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AGREEMENT PARTIES DATE
--------- ------- ----
5. Sale and Purchase Agreement relating to Jitter Bug Holdings Limited October 16, 2003
Shares in Ninetowns Digital World Trade
Holdings Limited ("HUITUNG SALE AND Huitung Investments (BVI) Limited
PURCHASE AGREEMENT")
Ninetowns Digital World Trade Holdings
Limited
6. Subscription Agreement for 93,600 Ninetowns Digital World Trade Holdings December 11, 2003
Shares in Ninetowns Digital World Trade Limited
Holdings Limited ("TITAN SUBSCRIPTION
AGREEMENT") Jitter Bug Holdings Limited
Titan I Venture Capital Co., Ltd.
Titan II Venture Capital Co., Ltd.
CFM Investments Limited-CFM Greater China
Fund
7. Subscription Agreement for 23,400 Ninetowns Digital World Trade Holdings December 11, 2003
Shares in Ninetowns Digital World Trade Limited
Holdings Limited ("FERNDALE
SUBSCRIPTION AGREEMENT") Jitter Bug Holdings Limited
Ferndale Associates Limited
8. Agreement relating to the Sale and Value Chain International Limited June 30, 2004
Purchase of Shares in Better Chance
International Limited and Asia Pacific Ninetowns Digital World Trade Holdings
Logistics Limited ("VALUE CHAIN SHARE Limited
SALE AND PURCHASE AGREEMENT")
Better Chance International Limited
Asia Pacific Logistics Limited
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