Agreement on Exclusive Purchase Right
Agreement
on Exclusive
Purchase Right
This
agreement is signed by the following parties on December 27, 2007:
Party
A:
Century City Infrastructure Facility Co. Ltd.
A
foreign-owned company limited established in People’s Republic of China
(hereinafter referred to as “China”), the registered address is Room 1199,
Silicon Valley Mansion, No.1198 Silicon Valley Street, Changchun Hi-tech
Development Zone.
Party
B:
Xxxx Xx, Chinese citizen.
Chinese
ID No.: 000000000000000000
Address:
Xx.000 Xxxxxxxx 0, Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx Garden, Haidian District,
Beijing
Yu
Mao,
Chinese citizen.
Chinese
ID No.: 44030119560928411X
Address:
No.408 Xxxx 0, Xxxxxxxx 00, Xxxxx Xxxxxxx, Xxxxx Xxxx, Xxxxx District, Shenzhen,
Guangdong
(Xxxx
Xx
and Xx Xxx are referred to as “Party B”)
Party
C:
Shanghai New Century City Infrastructure Construction Co., Ltd. (hereinafter
referred to as “New Century”), an effectively existing company limited
established according to Chinese law, the registered address is Room 2023
Building 7, No.515 Kesheng Road, Nanxiang Town, Jiading District, Shanghai
City.
Whereas:
| 1. |
Party
B holds 100% equity of Party C.
|
| 2. |
Party
C and Party A sign a series of agreements as “Business Cooperation and
Consulting Service Agreement”
|
Upon
the
consensus in the negotiation, the parties come to the following agreement:
1
Equity
Trade
| 1.1 |
Authorization
rights
|
Party
B
shall irrepealably authorize Party A an irrepealable right (hereinafter referred
to as “equity purchase right”) to purchase from Party B at any moment or appoint
one person or several persons (hereinafter referred to as “the appointed
person”) to purchase all or partial equity of Party C that Party B holds under
the precondition of allowance of Chinese law and according to the execution
steps decided by Party A and according to the price mentioned in Item 1.3 in
this agreement. Except for Party A and the appointed person, any third person
shall not enjoy the equity purchase right. The “person” regulated by this item
and this agreement refers to the individual, company, joint enterprise,
cooperation, enterprise, credit or non-company organization.
| 1.2 |
Execution
steps
|
The
execution of Party A on the equity purchase right shall confirm to the
regulation of Chinese law and regulation, when performing the equity purchase
right, Party A shall send a written notice (hereinafter referred to as “Equity
Purchase Notice”) to Party B, and the Equity Purchase Notice shall indicate the
following issues: (a) The decision of Party A on performing the purchase right;
(b) The equity share that Party A plans to purchase from Party B (hereinafter
referred to as “the purchased equity”); (c) Purchase day/equity transfer
day.
| 1.3 |
Buying
price of equity
|
The
buying price of the purchased equity (hereinafter referred to as the “buying
price”) shall be confirmed by the buyer according to the assessment value
approved by the authority when purchasing the equity, and shall be the lowest
price allowed by Chinese law and regulation.
| 1.4 |
Transfer
the purchased equity
|
When
Party A performs the equity purchase right:
| 1.4.1 |
Party
B shall order Party C to hold the shareholder meeting and approve the
resolution on Party B’s transferring equity to Party A and (or) the
appointed person on this meeting;
|
| 1.4.2 |
Party
B shall sign the equity transfer agreement with Party A (or the appointed
person under the applicable situation) according to the regulation
of this
agreement and the Equity Purchase Notice;
|
| 1.4.3 |
Relevant
parties shall sign all other required agreements or documents, get
all
required governmental approval and agreement, and take all required
actions to transfer the effective ownership of the purchased equity
to
Party A and (or) the appointed person and make Party A and (or) the
appointed person become the registered owner of the purchased equity
under
the situation without any attached security interests. For the purpose
of
this item and this agreement, the “security interests” include guaranty,
mortgage, right and interests of the third party, any stock option,
purchase right, right of preemption, setoff right, ownership compensation
or other guarantee arrangement etc., however in order to be clear,
not
including any security interests produced under this agreement and
Party
B’s equity pledge agreement. The “Party B’s equity pledge agreement”
regulated by this item and this agreement refers to the “Equity Pledge
Agreement” (hereinafter referred to as “equity pledge agreement”) signed
by Party B and Party A on 2007.
According to the equity pledge agreement, in order to assure that Party
C
can implement the obligations under a series of agreements as “Business
Cooperation and Consulting Service Agreement” (“Service Agreement”) etc.
signed by Party C and Party A on 2007,
Party B impawn all held equity of Party C to Party A.
|
| 1.5 |
Payment
of equity purchase price
|
| 1.5.1 |
Party
A shall pay to Party B in the stipulated mode according to the buying
price stipulated by Item 1.3.
|
2 Promises
on equity
2.1 Party
C promises
that:
2.1.1
Not
supplement, modify the company rule document of Party C in any form, not
increase or reduce the registered capitals, or change the registered capital
structure in other method without the written approval of Party A in
advance;
2.1.2
Main the effective existence of the company, prudently and effectively manage
the business and treat the company affair according to the good commercial
standard and routines;
2.1.3
No
sell, transfer, mortgage or dispose any asset, business or legal or beneficial
interest of income of Party C in other mode or allow to set any other security
interest on in any time as of the signing day of this agreement without the
written approval of Party A in advance;
2.1.4
Not
happen, inherit, assure or allow any debt without the written approval of Party
A in advance, however except for i. the legal debts produced in the normal
or
daily business process instead of the mode of loan, and ii. The debt that has
been disclosed to Party A and gets the written approval of Party A;
2.1.5
Always operate all business in the normal business process to maintain the
asset
value of Party C, not have any feasance/ nonfeasance that is sufficient to
affect the operation condition and asset value;
2.1.6
Not
sign any great agreement (as to this section, if the value of an agreement
is
over XXX 000 xxxxxxxx Xxxx, xx will be regarded as the great agreement) without
the written approval of Party A in advance;
2.1.7
Not
provide any loan or credit to anyone without the written approval of Party
A in
advance;
2.1.8
Provide the data on the operation and financial status of Party C according
to
the requirement of Party A;
2.1.9
Party C shall purchase and always hold the insurance purchased from the
insurance company accepted by Party A, the maintained insurance amount and
type
shall be the same as the amount and type insured by the company operating the
similar business and owning the similar property or asset in the same
area;
2.1.10
Not merge or associate with anyone or c[purchase anyone or invest anyone without
the written approval of Party A in advance;
2.1.11
Immediately notify Party A the occurred or possible ligation, arbitration or
administrative procedure relating to the asset, business and income of Party
C;
2.1.12
In
order to maintain the ownership of Party C on all assets, sign all necessary
or
proper documents, and take all necessary or proper actions and propose all
necessary or proper impeachment or make necessary and proper deraignment against
all compensation claim;
2.1.13
Not distribute the dividend to the shareholders in any form without the written
approval of Party A in advance, however, once upon the requirement of Party
A,
immediately distribute all the distributable profits to the respective
shareholders.
2.2
Party
B promises that:
2.2.1
Not
sell, transfer, mortgage or dispose any asset, business or legal or beneficial
interest of income of Party C in other mode or allow to set any other security
interest on in any time as of the signing day of this agreement without the
written approval of Party A in advance, however except for the approved pledge
set on the equity of Party B according to the security interest produced by
this
agreement and the equity pledge agreement of Party B;
2.2.2
Promote other company shareholders not to approve to sell, transfer, mortgage
or
dispose any legal or beneficial interest of any equity in other mode or allow
to
set any other security interest on without the written approval of Party A
in
advance, however except for the approved pledge set on the equity of Party
B
according to the security interest produced by this agreement and the equity
pledge agreement of Party B;
2.2.3
Promote other company shareholders not approve Party C to merge or associate
with anyone, or purchase anyone or invest anyone without the written approval
of
Party
2.2.4
Immediately notify Party A the occurred or possible ligation, arbitration or
administrative procedure on the equity it owns;
2.2.5
Promote other company shareholders to vote for agreeing with the transfer of
the
purchased equity regulated by this agreement;
2.2.6
In
order to maintain the ownership on the equity, sign all necessary or proper
documents, and take all necessary or proper actions and propose all necessary
or
proper impeachment or make necessary and proper deraignment against all
compensation claim;
2.2.7
Upon the requirement of Party A in any moment, immediately unconditionally
transfer the equity to Party A or the appointed person in any time.
2.2.8
Strictly abide by the regulation of this agreement and other agreements joint
signed or respectively signed by Party B, Party C and Party A, implement the
obligations under the agreement, and not make any feasance/ nonfeasance that
is
sufficient to affect the effectiveness and execution of the agreement.
3 Statement
and Guarantee
3.1
The
common and respective statement and guarantee of Party B and Party C on the
signing day of this agreement and each day of transfer are as follows:
3.1.1
To
have the power and ability of signing and delivering this agreement and any
equity transfer agreement (the name is “Transfer Agreement”) signed for each
transferring the purchased equity according to this agreement, and the power
and
ability of implementing the obligation under this agreement and any transfer
agreement. After this agreement and the transfer agreement are signed, the
legal, effective obligation with binding force will be composed, which can
be
compulsorily executed according to the items;
3.1.2
No
matter it’s the signing and delivery of this agreement or any transfer agreement
or the implementation of the obligation under this agreement or any transfer
agreement shall not: (i) lead to any breach of relevant Chinese law; (ii)
collide with the rule or other organization documents; (iii) lead to the breach
of any party or any agreement or document certificate with binding force, or
compose the breach of agreement of any party or any agreement or document
certificate with binding force; (iv) lead to any breach of relevant issued
permission or approval or any continuously effective condition; or (v) lead
to
the suspension or cancellation or additional condition of any issued permission
or approval;
3.1.3
Party B shall have good and sellable ownership on all assets. Party A shall
have
set no security interest on the above mentioned assets, however except for
the
security interests produced in this agreement and the pledge set by the equity
pledge agreement of Party B on the equity of Party B;
3.1.4
Party C shall have no debt that is not reimbursed , however except for i. the
legal debt produced in the normal business process, and ii the debt that has
been disclosed to Party A and gets the written approval of Party A;
3.1.5
Party C shall abide by all law and regulation applicable for the equity
purchase;
3.1.6
There is no underway or suspended or possible litigation, arbitration or
administrative procedure relating to the equity, asset of Party C, or the
company.
4 Date
of
inception
4.1
This
agreement shall come into effect as of the signing day (hereinafter referred
to
as “date of inception”), and the period of invalidity is ten years.
5 Applicable
law and settlement of dispute
5.1
Applicable law
This
agreement shall be governed by Chinese law on each aspect, and shall make
explanation according to Chinese law.
5.2
Settlement of dispute
Any
dispute arising from performance of this agreement, both parties shall negotiate
with each other friendly. If the settlement fails to be solved within 30 days
after one party sends the written notice on negotiation to the other party,
any
party can submit the dispute to China International Economic and Trade
Arbitration Commission, and this Commission will arbitrate according to the
current effective arbitration rule. The arbitration location: Beijing, and
the
arbitration language is Chinese. The arbitration shall be final award with
binding force to each party.
6 Taxation,
fees
6.1
Each
party shall bear any produced or levied transfer and registration tax, expense
and fees for preparing and signing this agreement and each transfer agreement
and completing this agreement and the trade planned by the transfer agreement
according to Chinese law.
7 Notice
7.1
This
agreement requires the notice or other communication sent by any party or the
company to be written in Chinese, and to be sent to the addresses below of
other
parties or other notified appointed addresses of other parties in the form
of
special delivery or letter or fax. The notice shall be regarded as the actual
delivery date, and shall be confirmed as follows: (a) the notice delivered
by
special personnel, the day of the special personnel delivery shall be regarded
as the actual arrival; (b) the notice sent in the form of letter, the tenth
day
after the delivery day of air registered mail paid postage will be regarded
as
the actual arrival, or the fourth day after delivering to the special express
service institution admitted by the world will be regarded as the actual
arrival; and (c) the notice delivered in the form of fax, the receiving time
displayed on the delivery confirmation of relevant document will be regarded
as
the actual arrival.
Party
A:
Century Ciry Infrastructure Facility Co. Ltd.
Address:
Room 1199, Silicon Valley Mansion, No.1198 Silicon Valley Street, Changchun
Hi-tech Development Zone
Party
B:
Xxxx Xx, Yu Mao
Address
of Xxxx Xx: Xx.000 Xxxxxxxx 0, Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx Garden, Haidian
District, Beijing
Address
of Yu Mao: Xx.000 Xxxx 0, Xxxxxxxx 00, Xxxxx Village, Binhe Road, Luohu
District, Shenzhen, Guangdong
Party
C:
Shanghai New Century City Infrastructure Construction Co., Ltd.
Address:
Room 2023 Xxxxxxxx 0, Xx.000 Xxxxxxx Xxxx, Xxxxxxxx Town, Jiading District,
Shanghai City.
8 Confidential
liability
8.1
Each
party shall admit and confirm that any oral or written data exchanged on this
agreement are confidential data. Each party shall be confidential on all these
data, and shall not disclose any data to any third party without the written
approval of the other party, except for the following situations: (a) the data
that have been know by the public or are to be known by the public (not
disclosed to the public by the party accepting the data); (b) the applicable
law
requires to disclose the data; or (c) any party needs to disclose the data
to
the law or financial consultant according to the trade mentioned by this
agreement and this law or financial consultant shall abide by the confidential
liability similar to this item. The secret disclosure made by the working
personnel or the employed intuition of any party shall be regarded as the secret
disclosure made by this party, and this party shall bear the liability for
breach of agreement according to this agreement. No matter which reason causes
the termination of this agreement, this item shall be still effective.
9 Further
guarantee
9.1
Each
party shall agree to rapidly sign the rationally required document or document
favorable for executing the regulation of this agreement and realizing the
purpose of this agreement, and take rationally required further action or
further action favorable for executing the regulation of this agreement and
realizing the purpose of this agreement.
10 Others
10.1
Modification and supplementation
Each
party shall sign a written agreement on the amendment, modification and
supplementation on this agreement.
10.2
Abidance of law and regulation
Each
party shall abide by and assure the operation of each party to totally abide
by
all laws and regulations formally issued by China and opened to the
public.
10.3
Complete agreement
Besides
the written amendment, supplementation or modification after this agreement
is
signed, this agreement and the appendix shall compose the complete agreement
reached by each party on the subject matter of this agreement, and shall replace
all oral or written negotiation, statement and agreement reached on the subject
matter of this agreement before.
10.4
Topic
The
topic
of this agreement is set only for being convenient for reading, and shall not
be
used to explain, describe or affect the definition regulated by this agreement
on other aspect.
10.5
Language
This
agreement shall be written in Chinese and English, if the Chinese text conflicts
with the English text, subject to Chinese. The original of this agreement shall
be provided in triplicate.
10.6
Dividability
If
this
agreement has any item that is judged to be invalid, illegal or inexecutable
on
any aspect according to any law or regulation, the validity, legality or
executability of the rest regulations of this agreement will not be affected
or
damaged by this on any aspect. Each party shall struggle for replacing the
invalid, illegal or inexecutable regulation with valid regulation through
negotiation, and the economic effect produced by the valid regulations shall
try
to be the same or similar to the economic effect produced by the invalid,
illegal or inexecutable regulation.
10.7
Successor
This
agreement shall have binding force and favorable to the successor and the
transferee allowed by each party.
10.8
Continuity of invalidity
10.8.1
Any obligation occurring or expiring for this agreement when this agreement
is
expired or terminated in advance shall continue to be invalid after this
agreement is expired or terminated in advance.
10.8.2
The regulations in Item Five, Seven, Eight and Item 10.8 shall continue to
be
invalid after this agreement is terminated.
10.9
Renunciation
Any
party
can waive the rights on the item and condition of this agreement in a written
form that shall be signed by each party. The renunciation made by one party
on
the breach of agreement of other party under certain situation shall not be
regarded as that this party will make renunciation on the similar breach of
agreement under other situation.
[No
text
below]
This
page
is the signing page of the exclusive purchase right agreement, this agreement
has been signed by the party below on the date indicated on the first
page:
Party
A:
Century City Infrastructure Facility Co. Ltd. (seal)
Authorized
representative: Yu
Mao
(signed)
| Party B: |
Xxxx
Xx
|
| Xxxx Xx (signed) |
| Yu Mao |
| Yu Mao (signed) |
Party
C:
Shanghai New Century City Infrastructure Construction Co., Ltd.
(seal)
Legal
representative: Yu
Mao
Appendix
Declaration
I
hereby
certify that Shanghai New Century City Infrastructure Construction Co., Ltd.
(“New Century”) is a company limited established on Jul. 11th,
2005.
As the shareholder of New Century, at present I hold 50% of the equity of New
Century, and hold the total 100% of the equity of New Century together with
Yu
Mao, another shareholder of New Century. I agree and promise that I will
permanently and irrepealably renunciate the priority to accept transfer of
my
50% of the equity of New Century and will not baffle the transfer of the equity
in any form.
This
declaration comes into effect as of my signing day.
Declarer:
Xxxx Xx
Xxxx
Xx (signed)
MM/DD/YY
Declaration
I
hereby
certify that Shanghai New Century City Infrastructure Construction Co., Ltd.
(“New Century”) is a company limited established on Jul. 11th,
2005.
As the shareholder of New Century, at present I hold 50% of the equity of New
Century, and hold the total 100% of the equity of New Century together with
Xxxx
Xx, another shareholder of New Century. I agree and promise that I will
permanently and irrepealably renunciate the priority to accept transfer of
my
50% of the equity of New Century and will not baffle the transfer of the equity
in any form.
This
declaration comes into effect as of my signing day.
Declarer:
Yu Mao
Yu
Mao
(signed)
December
27, 2007
