December 13, 2010 Shareholder Voting Proxy Agreement by and among Han Junping Xiong Wei and Shanghai Huopu Cloud Computing Terminal Technology Co., Ltd. The9 Computer Technology Consulting (Shanghai) Co., Ltd. Regarding Shanghai Huopu Cloud Computing...
Exhibit 4.36
Translation
December 13, 2010
by and among
Xxx Xxxxxxx
Xxxxx Xxx
and
Shanghai Huopu Cloud Computing Terminal Technology Co., Ltd.
The9 Computer Technology Consulting (Shanghai) Co., Ltd.
Regarding
Shanghai Huopu Cloud Computing Terminal Technology Co., Ltd.
This Shareholder Voting Proxy Agreement (hereinafter this “Agreement”) is entered into in
Shanghai as of December 13, 2010 by and among the following Parties:
| 1. | The9 Computer Technology Consulting (Shanghai) Co., Ltd. (hereinafter “The9 Computer”) |
Registered address: Xxxx 000, Xxxxxxxx 0, Xx. 000 Xxxx Xxxx, Xxxxxxxxxx Hi-Tech Park, Shanghai
| 2. | Shanghai Huopu Cloud Computing Terminal Technology Co., Ltd. (hereinafter the “Company”) |
Registered address:
| 3. | Xxx Xxxxxxx, identity card number: |
Domicile address:
| 4. | Xxxxx Xxx, identity card number: |
Domicile address:
(Xxx Xxxxxxx and Xxxxx Xxx are hereinafter referred to individually and collectively as the
“Shareholder(s)”)
(In this Agreement, all parties mentioned above are referred to individually as a “Party” and
collectively as the “Parties”.)
WHEREAS:
| 1. | The Shareholders are all existing shareholders of the Company, who own 100% equity interest
in the Company; |
| 2. | Each of the Shareholders intends to entrust any individual designated by The9 Computer to
exercise his voting rights in the Company, and The9 Computer intends to designate such
individuals to accept the entrustment. |
Therefore, the Parties have reached the following agreement upon friendly consultations:
Article 1 Entrustment of Voting Right
| 1.1 | The Shareholders hereby irrevocably undertake that they will, upon execution hereof, sign a
power of attorney in substance and form as set out in Appendix I hereto, respectively, to
entrust any individuals then designated by The9 Computer (hereinafter the “Entrusted Persons”)
to exercise, on behalf of each of the Shareholders, the following rights to which the
Shareholders are entitled in their capacity of the Company’s shareholders under the articles
of association of the Company then in effect (collectively the “Entrusted Rights”): |
| (1) | to propose to convene and attend Shareholders’ meetings of the Company as the
proxy of each of the Shareholders according to the articles of association of the
Company; |
| (2) | to exercise, on behalf of each of the Shareholders, his voting rights on all
matters requiring discussion or resolutions of the Shareholders’ meeting of the
Company, including without limitation, the designation and election of the Company’s
directors and general manager, and other senior management that shall be appointed and
removed by the Shareholders; |
| (3) | to exercise other voting rights to which the Shareholders are entitled under
the laws and regulations of the PRC (including any amendment, change, addition and
supplement and reenactment thereof, irrespective of whether they take effect before or
after the formation of this Agreement); |
| (4) | to exercise other voting rights of the Shareholders as specified in the
articles of association of the Company (including any other shareholders’ voting rights
as specified in the amended articles of association). |
The above authorization and entrustment shall be conditional upon The9 Computer approving
such authorization and entrustment. If and only if The9 Computer gives a written notice for
removal and replacement of the Entrusted Person(s) to each of the Shareholders, the
Shareholders shall immediately designate the other PRC citizen then designated by The9
Computer to exercise the above Entrusted Rights, and the new power of attorney shall, once
made, supersede the original power of attorney. Save as aforesaid, no Shareholders shall
revoke the authorization and entrustment given to the Entrusted Person(s).
| 1.2 | The Entrusted Person(s) shall perform their obligations in respect of the entrustment
hereunder to the extent authorized hereunder with due care and diligence and in compliance
with laws. The Shareholders shall acknowledge and assume liabilities for any legal
consequences resulting from the exercise by the Entrusted Persons of the Entrusted Rights
described above. |
| 1.3 | The Shareholders hereby confirm that the Entrusted Persons shall not be required to seek
opinions from the Shareholders prior to their exercise of the above Entrusted Rights.
However, the Entrusted Persons shall notify the Shareholders in a timely manner of any
resolution or proposal for convening an interim shareholders’ meeting after such resolution or
proposal is made. |
Article 2 Right to Information
| 2.1 | For the purpose of exercising the Entrusted Rights hereunder, the Entrusted Persons shall be
entitled to know all information of the Company relating to its operation, business,
customers, finance and employees, and shall have access to the relevant documents and
materials of the Company. The Company shall fully cooperate with the Entrusted Persons in
this regard. |
Article 3 Exercise of Entrusted Rights
| 3.1 | The Shareholders will provide sufficient assistances to the Entrusted Persons with regard to
their exercise of the Entrusted Rights, including the execution of resolutions of
shareholders’ meetings made by the Entrusted Persons or other relevant legal documents in a
timely manner when necessary (e.g., where the same is required in order to submit documents
for the purposes of government approvals, registrations or filings). |
| 3.2 | If, at any time within the term of this Agreement, the grant or exercise of the Entrusted
Rights hereunder cannot be realized due to any reason (except for the default of any
Shareholder or the Company), the Parties shall immediately seek the alternative proposal that
is most similar to the one that cannot be realized and, if necessary, enter into a
supplementary agreement to amend or adjust the provisions herein, in order to ensure that the
purpose of this Agreement can continue to realize. |
Article 4 Exemption and Compensation
| 4.1 | The Parties acknowledge that in no case shall The9 Computer be required to be liable to or
compensate (economic or otherwise) the other Parties or any third party in connection with any
exercise of the Entrusted Rights hereunder by the individuals designated by it. |
| 4.2 | The Shareholders and the Company agree to indemnify and hold The9 Computer harmless against
all losses suffered or likely to be suffered by it due to any exercise of the Entrusted Rights
by the Entrusted Persons designated by The9 Computer, including without limitation, any loss
resulting from any litigation, demand, arbitration or claim by any third party against it or
from administrative investigation or penalty by government authorities, provided, however,
that no indemnification is available for any losses caused by a willful default or gross
negligence of the Entrusted Persons. |
Article 5 Representations and Warranties
| 5.1 | Each of the Shareholders hereby jointly and severally represents and warrants as follows: |
| 5.1.1 | He is a PRC citizen with full capacity, has full and independent legal status
and legal capacity to execute, deliver and perform this Agreement, and may act
independently as a party to lawsuit. |
| 5.1.2 | He has full power to execute and deliver this Agreement and all the other
documents to be signed by him in relation to the transaction referred to herein, and
has the full power to complete the transaction referred to herein. This Agreement
shall be executed and delivered by him legally and properly. This Agreement
constitutes the legal and binding obligations on him and is enforceable against him in
accordance with its terms and conditions |
| 5.1.3 | He is the legitimate shareholder of the Company whose name appears on its
register of members as of the effective date of this Agreement, and except for the
rights created by this Agreement, the Equity Pledge Agreement and the Exclusive Call
Option Agreement entered into by the Shareholders, the
Company and The9 Computer, there is no third party right on the Entrusted Rights.
In accordance with this Agreement, the Entrusted Persons may exercise the Entrusted
Rights fully and completely pursuant to the articles of association of the Company
then in effect. |
| 5.2 | Each of The9 Computer and the Company hereby severally represents and warrants as follows: |
| 5.2.1 | It is a company with limited liability duly incorporated and legally existing
under the laws of the place of its incorporation with an independent legal person
status. It has full and independent legal status and legal capacity to execute,
deliver and perform this Agreement and may act independently as a party to lawsuit. |
| 5.2.2 | It has the full corporate power and authority to execute and deliver this
Agreement and all the other documents to be signed by it in relation to the transaction
referred to herein, and it has the full power and authority to complete the transaction
referred to herein. |
| 5.3 | The Company further represents and warrants as follows: |
| 5.3.1 | The Shareholders are all legitimate shareholders of the Company whose names
appear on its register of members as of the effective date of this Agreement, and
except for the rights created by this Agreement, the Equity Pledge Agreement and the
Exclusive Call Option Agreement entered into by the Shareholders, the Company and The9
Computer, there is no third party right on the Entrusted Rights. In accordance with
this Agreement, the Entrusted Persons may exercise the Entrusted Rights fully and
completely pursuant to the articles of association of the Company then in effect. |
Article 6 Term of Agreement
| 6.1 | Subject to Articles 6.2 and 6.3 hereof, this Agreement shall become effective once it is duly
signed by the Parties, and shall remain effective until the date on which the business term of
the Company or The9 Computer expires (whichever is earlier), unless it is early terminated by
the Parties in writing or pursuant to Article 9.1 hereof. This Agreement will be
automatically extended for one (1) year upon the expiration except where The9 Computer gives
the other Parties a prior notice of thirty (30) days not to extend the term of this Agreement
upon its expiration, and the same mechanism will apply subsequently upon the expiration of
each extended term. |
| 6.2 | This Agreement shall terminate if the Company or The9 Computer, upon expiry of its business
term, fails to complete the formalities in relation to the approval and registration for the
extension thereof. |
| 6.3 | If any of the Shareholders transfers all of his equity interest in the Company with the prior
consent of The9 Computer, such Shareholder will no longer be a Party hereto and the
obligations and undertakings of any other Parties hereunder will not be adversely affected. |
Article 7 Notice
| 7.1 | Any notice, request, demand and other correspondences required by this Agreement or made in
accordance with this Agreement shall be delivered in writing to the relevant Party. |
| 7.2 | Any such notice or other correspondences shall be deemed to have been delivered, if sent by
facsimile or telex, when it is sent, and if delivered in person, when it is delivered, and if
sent by post, five (5) days after it was posted. |
Article 9 Liabilities for Breach of Contract
| 9.1 | The Parties agree and confirm that, if any Party (hereinafter the “Defaulting Party”)
substantially violates any of the provisions herein or substantially fails to perform any of
the obligations hereunder, such violation or failure shall constitute a default under this
Agreement (hereinafter a “Default”), and any of the other non-defaulting Parties (hereinafter
the “Non-defaulting Party”) shall have the right to require the Defaulting Party to rectify
such Default or take remedial measures within a reasonable period. If the Defaulting Party
fails to rectify such Default or take remedial measures within such a reasonable period or
within ten (10) days after the Non-defaulting Party notifies the Defaulting Party in writing
and require it to rectify the Default, then: (1) if any Shareholder or the Company is the
Defaulting Party, The9 Computer shall be entitled to terminate this Agreement and require the
Defaulting Party to make compensation for damages; (2) if The9 Computer is the Defaulting
Party, the Non-defaulting Party shall be entitled to require the Defaulting Party to make
compensation for damages, but unless otherwise provided by law, the Non-defaulting Party shall
have no right to terminate or discharge this Agreement or the entrustment hereunder in any
circumstances. |
| 9.2 | The rights and remedies set out herein shall be cumulative, and shall not preclude any other
rights or remedies provided by law. |
| 9.3 | Notwithstanding any other provisions herein, the effect of this Article shall not be affected
by the suspension or termination of this Agreement. |
Article 10 Miscellaneous
| 10.1 | This Agreement is executed in Chinese in four (4) originals, with one (1) original to be
retained by each Party hereto. |
| 10.2 | The formation, effectiveness, performance, amendment, interpretation and termination of this
Agreement shall be governed by the laws of the PRC. |
| 10.3 | Any disputes arising out of and in connection with this Agreement shall be resolved through
consultations among the Parties. If the Parties cannot reach an agreement regarding such
disputes within thirty (30) days of their occurrence, such disputes shall be submitted to
China International Economic and Trade Arbitration Commission, Shanghai Branch, for
arbitration in Shanghai in accordance with the arbitration rules of such Commission, and the
arbitration award shall be final and binding on the Parties. |
| 10.4 | None of the rights, powers and remedies granted to any Party by any provisions herein shall
preclude any other rights, powers and remedies available to such Party at law and under the
other provisions of this Agreement, nor shall the exercise by a Party of its rights, powers
and remedies preclude any exercise by such Party of its other rights, powers and remedies. |
| 10.5 | No failure or delay by a Party in exercising any of its rights, powers and remedies hereunder
or in accordance with laws (hereinafter the “Party’s Rights”) shall result in a waiver
thereof, nor shall the waiver of any single or partial exercise of the Party’s Rights preclude
such Party from exercising such rights in any other way and exercising the other Party’s
Rights. |
| 10.6 | The headings of the provisions herein are for reference only, and in no circumstances shall
such headings be used for or affect the interpretation of the provisions hereof. |
| 10.7 | Each provision contained herein shall be severable and independent from each of other
provisions, and if at any time any one or more provisions herein become(s) invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions herein
shall not be affected as a result thereof. |
| 10.8 | Any amendments or supplements to this Agreement shall be made in writing, and shall become
effective only when duly signed by the Parties to this Agreement. |
| 10.9 | Without the prior written consent of The9 Computer, the other Parties shall not transfer any
of their rights and/or obligations hereunder to any third parties. The Shareholders and the
Company hereby agree that The9 Computer shall be entitled to transfer any of its rights and/or
obligations hereunder to any third party after serving written notice to the Shareholders and
the Company. |
| 10.10 | This Agreement shall be binding on the legal successors of the Parties. |
IN WITNESS HEREOF, the Parties have caused this Shareholder Voting Proxy Agreement to be
executed as of the date and in the place first above written.
The9 Computer Technology Consulting (Shanghai) Co., Ltd. [Chop affixed]
(Company chop)
(Company chop)
Shanghai Huopu Cloud Computing Terminal Technology Co., Ltd. [Chop affixed]
(Company chop)
(Company chop)
| Xxx Xxxxxxx | ||||
Signature:
|
/s/ Xxx Xxxxxxx
|
|||
| Xxxxx Xxx | ||||
Signature:
|
/s/ Xxxxx Xxx
|
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Appendix I
Form of the Power of Attorney
This power of attorney (“PoA”) is signed by [name of shareholder] (residence: ; ID
number: ) on , 2010, and is issued to [name of proxy] (residence: ; ID number:
)(“Proxy”)
I, , hereby irrevocably fully entrust the Proxy with the
following shareholder rights enjoyed by myself as a shareholder of Shanghai Huopu Cloud Computing
Terminal Technology Co., Ltd. (the “Company”):
| (1) | Attend, as my proxy, shareholder meetings pursuant to the Company’s articles of association; |
| (2) | Exercise voting rights with respect to all the matters discussed and resolved at the shareholders’ meetings as my proxy, including but not limited to designating and electing the Company’s directors and other senior management officers that ought to be appointed at a shareholders’ meeting; and |
| (3) | Exercise any other shareholder voting rights conferred on myself by the Company’s articles of association as my proxy (including any other shareholder voting rights provided for under any amendments to the articles of association). |
I hereby irrevocably confirm that, unless The9 Computer Technology Consulting (Shanghai) Co.,
Ltd. (“The9 Computer”) requests myself to substitute you with another proxy, this PoA shall expire
on the date of expiry or termination of the Shareholder Voting Proxy Agreement entered into among
The9 Computer, the Company, and the shareholders of the Company on , 2010.
Name:
Signature:
Signature:
