EXHIBIT 10.13
Nominee Agreement
This nominee agreement ("Agreement") is made on this day of May 13, 2005 by
and between
a) Mr. XXXX Xx, a citizen of the People's Republic of China (the "PRC") with his
ID card number of 000000000000000000; and
b) T2CN Holding Limited, a private company limited by shares organized and
existing under the laws of the British Virgin Islands with its principal
business address at Xxxxx 0 Xx. 00, Xxxxxxxx Xxxx, Xxxxxxxx, XXX (200233)
("T2CN Holding");
WHEREAS, as of the date of this Agreement, Mr. XXXX Xx holds 20% of the
registered capital of Shanghai T2 Entertainment Co., Ltd. ("T2 Entertainment"),
in the capacity of T2CN Holding's nominee.
NOW THEREFORE, in order to specify the rights and obligations of the parties
under the contemplated nominee arrangement between the parties, after friendly
consultations between them, the parties agree as follows:
Article 1 Nominee
1.1 For due and equitable consideration, T2CN Holding hereby designates Mr.
XXXX Xx to, and Mr. XXXX Xx hereby agrees to act as T2CN Holding's nominee
to dispose of the capital in the amount of RMB200,000 (the "Original
Capital") released by T2CN Holding for the sole purpose of holding 20% of
T2 Entertainment's total equity interest by Mr. XXXX Xx, in accordance with
the prior written instruction provided by T2CN Holding from time to time.
1.2 The parties hereto acknowledge the terms of this Agreement and agree that
the Original Capital described in above Article 1.1 shall be disposed of
for the sole purpose of the equity investment in T2 Entertainment directly
by Mr. XXXX Xx, whereby Mr. XXXX Xx directly holds 20% of the total
registered capital of T2 Entertainment, in the capacity as T2CN Holding's
nominee.
1.3 T2CN Holding may, at its sole discretion and from time to time, provide
further capital (the "Additional Capital") to Mr. XXXX Xx for the purpose
of increasing the capital contribution in the name of Mr. XXXX Xx to T2
Entertainment (the "Additional Capital Increase"). In the case of request
of the Additional Capital Increase by T2CN Holding, Mr. XXXX Xx shall take
each and all action and execute each and all instrument as necessary or
appropriate to consummate the capital increase. However, the immediately
preceding sentences shall not constitute any obligation on the part of T2CN
Holding to release any further capital to Mr. XXXX Xx for the purpose of
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the Additional Capital Increase.
1.4 Mr. XXXX Xx hereby covenants that he shall not increase his capital
contribution to the registered capital of T2 Entertainment except as
instructed by T2CN Holding.
1.5 Mr. XXXX Xx hereby warrants that he shall dispose of the Property (as
defined below) in fiduciary care to ensure the benefits of T2CN Holding
under this Agreement.
Article 2 Property
The property subject to the terms of this Agreement (the "Nominated Property")
shall include: (i) the Original Capital released to Mr. XXXX Xx, (ii) any
Additional Capital released to Mr. XXXX Xx for the purpose of the Additional
Capital Increase, (iii) any dividend or other distributions arising from the
equity interest registered in the name by Mr. XXXX Xx as contemplated hereunder
("T2 Entertainment Equity"), (iv) any amounts arising from a transfer or
disposal of T2 Entertainment Equity, (v) liquidation distribution obtained by
Mr. XXXX Xx as the holder of T2 Entertainment Equity from bankruptcy,
dissolution, liquidation or winding-up proceedings of T2 Entertainment, and (vi)
such other rights, interests, benefits and privileges conferring to T2
Entertainment Equity.
Article 3 Benefit
3.1 Mr. XXXX Xx hereby covenants to deliver the Nominated Property to T2CN
Holding at its instruction from time to time.
Article 4 Term and Termination of the Agreement
4.1 This Agreement shall take effect upon due execution by both parties.
4.2 This Agreement may be terminated under the following circumstances:
(i) upon the transfer by Mr. XXXX Xx of the capital gains from transfer
of T2 Entertainment Equity to T2CN Holding of all of the Nominated
Property in accordance with Article 3.1;
(ii) upon one (1) month prior notice in writing by T2CN Holding to Mr.
XXXX Xx; and
(iii) upon occurrence of any event that prohibits or restricts Mr. XXXX Xx
to hold the Nominated Property in accordance with the applicable
laws.
4.3 Upon termination of this Agreement in accordance with Article 4.2(ii) or
(iii), Mr. XXXX Xx shall act at the instruction of T2CN Holding to:
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(i) pay, within five (5) working days of the termination of this
Agreement, the Nominated Property comprising cash to the bank account
designated by T2CN Holding provided that all payment shall be made in
accordance with the applicable law; and
(ii) take all necessary actions immediately, from the date on which this
Agreement is terminated, to transfer T2 Entertainment Equity to T2CN
Holding or any entity or individual designated by T2CN Holding to the
extent permitted by the applicable laws.
Article 5 Default Liability
5.1 The parties agree and confirm that, if either party (the "Defaulting Party")
breaches substantially any of the agreements made under this Agreement, or
fails substantially to perform any of the obligations under this Agreement,
such a breach shall constitute a default under this Agreement (a "Default"),
then the non-defaulting party (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 reasonable
period or within ten (10) days of relevant Non-defaulting Party notifying
the Defaulting Party in writing and requiring it to rectify the Default,
then the Non-defaulting Party shall have the right, at its or his own
discretion, to (1) terminate this Agreement and require the Defaulting Party
to indemnify it fully for the damage; or (2) demand the enforcement of the
Defaulting Party's obligations hereunder and require the Defaulting Party to
indemnify it fully for the damage.
Article 6 Miscellaneous
6.1 Notwithstanding any other provisions herein, the validity of Article 5 and
the requirements of Mr. XXXX Xx in accordance with Article 4.3 to return the
Nominated Property shall not be affected by the prior suspension or
termination of this Agreement.
6.2 The formation, validity, execution, amendment, interpretation and
termination of this Agreement shall be subject to the laws of the British
Virgin Islands.
6.3 Any dispute under this Agreement which at the discretion of either party may
not be solved by amicable consultation shall be submitted to arbitration to
the exclusion of litigation. The arbitration shall be conducted by Hong Kong
International Arbitration Center according to its rules, and the arbitration
award of which shall be final and binding to both parties.
6.4 Any rights, powers and remedies empowered to either party by any provisions
herein shall not preclude any other rights, powers and remedies enjoyed by
such party in accordance with laws and other provisions under this
Agreement, and the exercise of its or his rights, powers and remedies by
either party shall not preclude its or his exercise of its or his other
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rights, powers and remedies by such party.
6.5 Any failure or delay by either party in exercising any of its or his rights,
powers and remedies hereunder or in accordance with laws (the "Party's
Rights") shall not lead to a waiver of such rights, and the waiver of any
single or partial exercise of the Party's Rights shall not preclude such
party from exercising such rights in any other way and exercising the
remaining part of the Party's Rights.
6.6 The titles of the articles contained herein shall be for reference only, and
in no circumstances shall such titles be used in or affect the
interpretation of the provisions hereof.
6.7 Each provision contained herein shall be severable and independent from each
of other provisions, and if at any time any one or more articles herein
become invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions herein shall not be affected as a
result thereof.
6.8 Any amendments or supplements to this Agreement shall be made in writing and
shall take effect only when properly signed by the parties to this
Agreement.
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IN WITNESS of which the parties hereto have executed this Agreement on the date
first mentioned above.
EXECUTED as a deed by XXXX Xx
/s/ Xx Xxxx
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WITNESS
/s/
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EXECUTED as a deed of T2CN HOLDING LIMITED
SIGNED by /s/ Jun-Xxx Xxxx
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Name: [ ]
Position: [ ]
WITNESS
/s/
