CALL OPTION AND COOPERATION
CALL OPTION AND COOPERATION
AGREEMENT
Regarding
LongSheng
Horticulture Technology Co., Ltd.
among
XXXX
Xxxxx
and
LongSheng
Horticulture Technology Co., Ltd.
and
Shenzheng
Zhihao Dongbo Technology Ltd.
Dated
this 10 day of March, 2010
Call
Option and Cooperation Agreement
This Call
Option and Cooperation Agreement (the “Agreement”) is entered into in
Dandong, Liaoning Province, the People’s Republic of China (the “PRC”) as of this 10 day of
March, 2010 by and between the following parties:
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(1)
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Xxxx Xxxxx, a PRC
citizen with his identiy card number is 232330196808084611 (hereinafter
referred to as the “Existing
Shareholder”);
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(2)
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Shenzheng Zhihao Dongbo
Technology Ltd. (hereinafter referred to as “WFOE”)
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Registered
address:
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32E,
CaiHuiGe, Rainbow New City, Caitian Road, Futian District, Shenzhen;
and
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(3)
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LongSheng Horticulture
Technology Co., Ltd. (hereinafter referred to as “LongSheng”)
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Registered
address:
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Group1,
Longsheng Village, Shancheng Town, ZhenAn District, Dandong, LiaoNing
Province.
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(In this
Agreement, the above-mentioned parties are collectively referred to as the
“Parties” and
individually as a “Party”)
Whereas:
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(1)
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The
Existing Shareholder is the enrolled shareholder of LongSheng and lawfully
holds all equities of LongSheng.
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(2)
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WFOE
is a limited liability company duly incorporated and validly existing in
PRC, and it is an important partner of LongSheng providing technical
support, consultancy and other relevant service for
it.
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(3)
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The
Existing Shareholder agrees to exclusively grant the WFOE with an
irrevocable call option (the “Call Option”), pursuant
to which and to the extent permitted by PRC laws, the Existing Shareholder
shall, at the request of WFOE, transfer the Option Equity (as defined
below) to WFOE and/or any other entity or individual designated by WFOE in
accordance with this Agreement.
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(4)
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LongSheng
agrees that the Existing Shareholder may grant to WFOE the Call Option in
accordance with this Agreement.
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(5)
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WFOE
agrees to cooperate with the Existing Shareholder and LongSheng according
to this Agreement.
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THEREFORE,
the Parties have reached the following agreement upon mutual
consultation:
Clause
1-
Definition
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1.1
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Unless
otherwise required by the context, the following terms in this Agreement
shall have the following meanings:
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“PRC Law” means the laws,
administrative regulations, administrative rules, local regulations, judicial
interpretations and other binding regulatory documents of the People’s Republic
of China then in effect.
“Option Equity” shall mean, in
respect of the Existing Shareholder, all his equity share in the registered
capital of LongSheng, which is 100% of the registered capital of
LongSheng.
“Transferred Equity” shall mean
the equity of LongSheng which the WFOE has the right to require the Existing
Shareholder to transfer to it or its designated entity or individual when the
WFOE exercises its Call Option (the “Exercise of Option”) in
accordance with Clause 3.2 herein, and the amount thereof may be whole or part
of the Option Equity and the specific amount thereof may be determined by the
WFOE according to the PRC Laws then in effect and the its own business
condition.
“Transferring Price” shall mean
all consideration to be paid by the WFOE or its designated entity or individual
to the Existing Shareholder in order to obtain the Transferred Equity upon each
Exercise of Option.
“Longsheng Assets” shall mean
all tangible or intangible assets which Longsheng owns or has the right to use
during the term of this Agreement, including but not limited to any immovable or
moveable assets, and trademarks, copyrights, patents, know-how, domain names,
software use right and other such intellectual properties.
“Material Agreements” means
those agreements singed by Longsheng as a party thereto, and having material
influence on the business or assets of LongSheng (including but not limited to
the Exclusive Technical Support and Service Agreement and other agreements in
relation to LongSheng’s business).
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1.2
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Reference
to any PRC Law herein shall be construed as including references
to:
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(1)
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the
revise, amendment, supplement and reenactment of such law, irrespective of
whether they come into force prior or after the formation of this
Agreement; and
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(2)
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other
decisions, notices or regulations enacted in accordance therewith or
effective as a result thereof.
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1.3
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Unless
otherwise stated in the context herein, references to any clause, item or
paragraph shall refer to the relevant part of this
Agreement.
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Clause
2-
Grant of Call Option
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2.1
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The
Existing Shareholder hereby agree to irrevocably and unconditionally grant
the WFOE an exclusive call option, pursuant to which the WFOE shall be
entitled (to the extent permitted by PRC laws) to request the Existing
Shareholder to transfer the Option Equity to the WFOE and/or its
designated entity or individual in accordance with the terms and
conditions hereunder. WFOE also agrees to accept such Call
Option.
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2.2
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LongSheng
hereby agrees that the Existing Shareholder may grant WFOE with such Call
Option in accordance with Clause 2.1 and other provisions of this
Agreement
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Clause
3-
Method for Exercise of Option
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3.1
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To
the extent permitted by PRC Law, WFOE shall have the absolute discretion
on determining the specific time, method and times of its Exercise of
Option.
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3.2
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If
the PRC Law then in effect permits the WFOE and/or other entity or
individual designated by it to hold all equities of LongSheng, the WFOE
shall have the right to exercise all of its Call Option by a single
Exercise of Option, and the WFOE and/or its designated entity or
individual will accept all Option Equity from the Existing Shareholder on
a one-time basis. If the PRC Law then in effect only permits the WFOE
and/or other entity or individual designated by it to hold part of
LongSheng’s equities, the WFOE shall have the right to determine the
amount of Transferred Equity within the upper limit of shareholding ratio
set out by the PRC Law (the “Shareholder Limit”), and
the WFOE and/or its designated entity or individual will accept such
amount of the Transferred Equity from the Existing Shareholder. In the
latter case, the WFOE shall be entitled to exercise its Call Option at
multiple times in line with the gradual raise by the PRC Law in the
Shareholding Limit, so as to eventually obtain all Option
Equity.
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3.3
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At
each Exercise of Option, the WFOE shall have the right to determine the
amount of Transferred Equity to be transferred by the Existing Shareholder
to the WFOE and/or any other entity or individual designated by it in such
Exercise of Option, and the Existing Shareholder shall transfer the such
amount of Transferred Equity as required by the WFOE to the WFOE and/or
its designated entity or individual. WFOE and/or its designated entity or
individual shall pay Transferring Price to the Existing Shareholder in
respect of the Transferred Option accepted by it in each Exercise of
Option.
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3.4
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In
each Exercise of Option, the WFOE may accept the Transferred Option by
itself, or designate any third party to accept all or part of the
Transferred Equity.
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3.5
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After
the WFOE has made its decision on each Exercise of Option, it shall serve
a notice to the Existing Shareholder stating its intention of exercising
Call Option (the “Exercise Notice”, the
form of which is set out in Appendix 2 hereto). The Existing Shareholder
shall, upon receipt of the Exercise Notice, forthwith transfer the
Transferred Equity in accordance with the Exercise Notice to the WFOE
and/or its designated entity or individual in such method as specified in
Clause 3.3 herein.
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3.6
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The
Existing Shareholder undertakes and guarantees that, once the WFOE issued
the Exercise Notice, it shall:
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(1)
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immediately
enter into an equity transfer agreement with the WFOE and/or other entity
or individual designated by WFOE for transfer of all the Transferred
Equity to the WFOE and/or such designated entity or
individual;
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(2)
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offer
necessary support to the WFOE (including providing and signing all
relevant legal documents, processing all formalities for governmental
approval and/or registration, and bearing all relevant obligations) in
accordance with the requirements of laws and regulations, so as to enable
the WFOE and/or its designated entity or individual to obtain all
Transferred Equity free from any legal defect;
and
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(3)
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immediately
take all necessary actions (including but not limited to, delivering the
official seal, business license, books of accounts and originals of other
certificates and licenses of LongSheng to the WFOE and/or its designated
entity or individual) to enable the WFOE and/or its designated entity or
individual to obtain the actual control over
LongSheng.
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3.7
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At
the same time of executing this Agreement, the Existing Shareholder shall
sign a power of attorney (the form of which is set out in Appendix 2
hereto, hereinafter referred to as the “Power of Attorney”) to
authorize any person appointed by the WFOE to sign on behalf of the
Existing Shareholder any and all legal documents, so as to ensure that the
WFOE and/or its designated entity or individual may obtain all Transferred
Equity free from any legal defect. Such Power of Attorney shall be
delivered to and kept by the WFOE, and, if necessary, the WFOE may request
the Existing Shareholder to execute multiple copies of the Power of
Attorney at any time and submit such Power of Attorney to relevant
governmental authorities.
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Clause
4-
Transferring Price
At each
Exercise of Option by the WFOE, all the Transferring Price to be paid by the
WFOE or its designated entity or individual to the Existing Shareholder shall be
the amount of the net assets value of LongSheng in correspondent to the
Transferred Equity as of the date of transfer (the “Correspondent Amount”). If the
PRC Law provides any compulsory requirements on the Transferring Price then,
which causes that the Transferring Price must be higher than the Correspondent
Amount mentioned in the preceding sentence, the WFOE and/or its designated
entity or individual shall be entitled, according to PRC Laws, to choose the
lowest price permitted by the PRC Laws as the Transferring Price. Subject to all
applicable laws and regulations, differences (if any) between the Transferring
Price and the Correspondent Amount shall be given to LongSheng.
Clause
5-
Representations and Warranties
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5.1
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The
Existing Shareholder hereby represents and warrant as follows, and such
representations and warranties shall be continually effective as if made
at the time of transferring the Transferred
Equity:
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5.1.1
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The
Existing Shareholder is a PRC citizen with full capacity. The Existing
Shareholder has full and independent legal status and legal capacity to
execute, deliver and perform this Agreement, and may act independently as
a litigant party.
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5.1.2
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The
Existing Shareholder has full power and authorization to execute and
deliver this Agreement as well as other documents relating to the
transaction contemplated hereunder and to be executed by him. The Pledgor
also has full power and authorization to complete the transaction
contemplated herein.
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5.1.3
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This
Agreement is duly executed and delivered by the Existing Shareholder and
constitutes legal and binding obligations on the part of the Existing
Shareholder. It is enforceable against him in accordance with its terms
and conditions.
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5.1.4
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When
this Agreement comes into force, the Existing Shareholder is the lawful
owner of the Option Equity, and the Option Equity is free of any lien,
pledge, claim and other encumbrance or third-party rights other than those
rights created by this Agreement, the Equity Pledge Agreement and the
Exclusive Technical Consulting and Service Agreement between the Existing
Shareholder and the WFOE. Pursuant to this Agreement, the WFOE and/or its
designated entity or individual may, upon Exercise of Option, obtain the
proper title to the Transferred Equity free from any lien, pledge, claim
and other encumbrances or third party
rights.
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5.2
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LongSheng
hereby represents and warrant as
follows:
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5.2.1
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LongSheng
is a limited liability company duly incorporated and validly existing
under the PRC Law and has an independent status as a legal person.
LongSheng has full and independent legal status and legal capacity to
execute, deliver and perform this Agreement, and may act independently as
a litigant party.
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5.2.2
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LongSheng
has the full power and authorization to execute and deliver this Agreement
as well as other documents to be signed by it in relation to the
transaction contemplated herein, and it has full power and authorization
to complete the transaction
hereunder.
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5.2.3
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This
Agreement is duly executed and delivered by LongSheng and constitutes
legal and binding obligations on
it.
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5.2.4
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The
Existing Shareholder is the only enrolled lawful shareholder of LongSheng
as of the effective date hereof. Pursuant to this Agreement, the WFOE
and/or its designated entity or individual may, upon Exercise of Option,
obtain the proper title to the Transferred Equity free from any lien,
pledge, claim and other encumbrances or third-party
rights.
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Clause
6-
Undertakings by the Existing Shareholder
The
Existing Shareholder hereby undertakes as follows:
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6.1
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Within
the term of this Agreement, the Existing Shareholder shall not (unless and
until it has informed the WFOE thereof and obtained the prior written
consent from WFOE, or it is subject to a compulsory requirement provided
by laws):
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6.1.1
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transfer
or otherwise dispose of any Option Equity or create any encumbrance or
other third-party rights on any Option
Equity;
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6.1.2
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increase
or decrease the registered capital of
LongSheng;
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6.1.3
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declare
the distribution of or actually distribute any distributable profits,
dividends or bonus shares;
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6.1.4
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agree
or causes the merger or division of
LongSheng;
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6.1.5
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directly
or indirectly hold any equity in, or become the director or employee of,
or provide any services (save for services in the ordinary business course
of LongSheng) for entities engaging in any business that is similar to or
competing with LongSheng;
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6.1.6
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cause
LongSheng to be terminated, liquidated or dissolved;
and
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6.1.7
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amend
the articles of association of
LongSheng.
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6.2
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Within
the term of this Agreement, the Existing Shareholder must ensure that
LongSheng is in compliance with its undertakings specified in Clause 7.1
below.
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6.3
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During
the term of this Agreement, the Existing Shareholder shall make his best
efforts to develop LongSheng’s business and ensure that the business
operation of LongSheng is legal and consistent to the regulations. The
Existing Shareholder shall not engage in any actions or inactions which
may (i) harm Longsheng Assets or reputation of LongSheng, or (ii) affect
the validity of those certificates, licenses or qualifications necessary
for LongSheng’s various businesses. When the Existing Shareholder ceases
to be a shareholder of LongSheng, it shall cause its successor to accept
in writing the rights and obligations hereunder with equal
validity.
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Clause
7-
Undertakings by LongSheng
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7.1
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LongSheng
hereby undertakes that, within the term of this Agreement, it shall not
(unless it has obtained the prior written consent of WFOE or is subject to
any compulsory provisions of laws):
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7.1.1
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dispose
of any Longsheng Assets (other than in the ordinary business
course);
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7.1.2
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dispose
of in any way its operation rights and/or profit-sharing rights in
connection with any of its business other than in the ordinary course of
business;
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7.1.3
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terminate
any Material Agreements signed by it or enter into any other agreements in
conflict with the existing Material
Agreements;
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7.1.4
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lend
or borrow any loan, or provide any guarantee or any other forms of
security, or bear any substantial obligations other than in the ordinary
business activity;
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7.1.5
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purchase
or invest in any entity;
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7.1.6
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deposit
or permit any capitals of LongSheng to be deposited in the account of any
other entities or individuals (save for the temporary situation arising
out of the ordinary business course);
and
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7.1.7
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incur
any liabilities or contracts with an amount exceeding RMB500,000 (other
than in the ordinary business
course).
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7.2
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If
any consent, permission, waiver or authorization by any third party, or
any governmental approval, license, exemption or filing procedures with
any governmental agency (if required by laws) are required by the
execution and performance of this Agreement as well as the grant of Call
Option hereunder, LongSheng shall make its best efforts to fulfill above
conditions.
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7.3
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Without
the prior written consent of the WFOE, LongSheng shall not assist or
permit the Existing Shareholder to transfer or otherwise dispose of any
Option Equity, or create any encumbrance or other third-party rights on
any Option Equity.
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7.4
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LongSheng
shall not conduct or permit any behavior or activity that may adversely
affect the interest of WFOE under this
Agreement.
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Clause
8-
Undertakings by WFOE
With
respect to any losses or capital requirements of LongSheng that may occur in its
ordinary operation or business development courses, WFOE undertakes that,
notwithstanding the provisions in other agreements entered into between WFOE and
LongSheng, it shall offer necessary support to LongSheng to the extent permitted
by law; provided that the Existing Shareholder and LongSheng shall respectively
perform their obligations and undertakings hereunder, and the representations
and warranties made by them hereunder shall remain true and
effective.
Clause
9-
Obligation of Confidentiality
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9.1
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Notwithstanding
the termination of this Agreement, the Existing Shareholder shall be
obliged to keep the following information in
confidential:
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(1)
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the
execution, performance and the contents of this
Agreement;
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(2)
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trade
secret, proprietary information and customer information in relation to
the WFOE known to or received by it as a result of execution and
performance of this Agreement; and
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(3)
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trade
secret, proprietary information and customer information in relation to
LongSheng known to or received by it as LongSheng’s shareholder
(collectively referred to as the “Confidential
Information”).
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The
Existing Shareholder may use such Confidential information only for the purpose
of this Agreement. Without the written consent of the WFOE, the Existing
Shareholder shall not disclose above Confidential Information to any third
party, otherwise it shall be liable for breach of the agreement and compensate
for relevant losses.
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9.2
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Upon
termination of this Agreement, the Existing Shareholder shall, at request
of the WFOE, return, destroy or otherwise dispose of all documents,
materials or software containing the Confidential Information, and stop
using such Confidential
Information.
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9.3
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Notwithstanding
any other provisions herein, this Clause shall not be affected by the
suspension or termination of this
Agreement.
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Clause
10 – Term of Agreement
This
Agreement shall come into force upon formal signatures of the Parties, and shall
be valid until all Option Equity has been transferred to the WFOE and/or its
designated entity or individual in accordance with this Agreement.
Clause
11 – Notice
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11.1
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Any
notice, request, requirement or other communications hereunder shall be
made in writing and delivered to the relevant receiving
Party.
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11.2
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Above
notices or other communications shall be deemed to have been given when
(i) it is sent out if sent by facsimile or email, or (ii) when it is
delivered if deliver by person, or (iii) five (5) days following post if
posted by mail.
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Clause
12 – Liability for Breach of Contract
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12.1
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The
Parties agree and acknowledge that, if either Party (the “Defaulting Party”)
substantially breaches any terms hereunder, or substantially fails to
perform any of the obligations hereunder, it shall constitute a default
under this Agreement (the “Default”). The
non-defaulting Party shall have the right to require the Defaulting Party
to make corrections or remedies within a reasonable period. If the
Defaulting Party fails to make correction or remedy within ten (10) days
following receipt of the written notice from the non-defaulting Party, the
non-defaulting shall have the right to (at its/his own
discretion):
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(1)
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terminate
this Agreement, and to request the Defaulting Party to make full
compensation for losses and damages;
or
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(2)
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enforce
the Defaulting Party to perform its/his obligations hereunder, and to
request the Defaulting Party to compensate for all losses and
damages.
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12.2
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The
Parties agree and acknowledge that, in any circumstances, the Existing
Shareholder and LongSheng shall not request the termination of this
Agreement for any reason.
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12.3
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The
rights and remedies provided herein are accumulative and shall not
preclude any other rights or remedies under the
laws.
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12.4
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Notwithstanding
any other provision of this Agreement, the validity of this Clause shall
not be affected by the suspension or termination of this
Agreement.
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Clause
13 – Miscellaneous
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13.1
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This
Agreement is prepared in Chinese and shall be executed in three (3)
originals. Each Party hereto shall hold one (1) original
hereof.
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Dandong
Longsheng
Call
Option Agreement
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13.2
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This
Agreement shall be governed by and construed in accordance with the PRC
Laws.
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13.3
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Any
dispute arising out of or in connection with this Agreement shall be
settled by the Parties through friendly consultation. If no agreement has
been reached within thirty (30) days following the occurrence of such
dispute, it shall be submitted to the competent court for
resolution.
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13.4
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Any
right, power or remedy granted to any Party under any provisions herein
shall not preclude any other rights, powers or remedies that a Party may
be entitled to in accordance with laws or other provisions hereof. A
Party’s exercise of its rights, powers or remedies shall not preclude it
from exercising other rights, powers or remedies granted to such
Party.
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13.5
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Any
failure or delay by a Party in exercising any of its rights, powers and
remedies hereunder or in accordance with laws (the “Party’s Rights”) shall
not be deemed as a waiver thereof, and any single or partial exercise of
the Party’s Rights shall not preclude (i) such Party’s further exercise of
such rights and (ii) exercise of other Party’s
Rights.
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13.6
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The
headings of this Agreement are for easy reference only and shall not be
used for or affect the interpretation hereof in any
circumstances.
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13.7
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Each
provision hereunder shall be severable and independent from each other,
and, if any provision(s) hereunder has been held invalid, illegal or
unenforceable at any time, the validity, legality and enforceability of
the remaining provision shall not be affected
thereby.
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13.8
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Upon
execution, this Agreement shall supersede any other legal documents
previously executed by the Parties in respect of the same subject. Any
amendment or supplement to this Agreement shall be made in writing, and no
amendment or supplement to this Agreement shall be effective without being
duly signed by the Parties
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13.9
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Without
the prior written consent of the WFOE, neither the Existing Shareholder
nor LongSheng may transfer its rights and/or obligations hereunder to any
third party. WFOE shall have the right to transfer its rights and/or
obligations to any of its designated third party upon notice to the
Existing Shareholder and LongSheng.
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13.10
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This
Agreement shall be binding upon the lawful successor of each
Party.
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[THE
REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK]
Dandong
Longsheng
Call
Option Agreement
[EXECUTION
PAGE]
IN WITNESS WHEREOF, the
following Parties have caused this Equity Pledge Agreement to be executed as of
the date and in the place first written above.
XXXX
Xxxxx
Signed
by : _________________
Shenzheng
Zhihao Dongbo Technology Ltd.
(company
seal)
Authorized
Representative : _________________
Name:
Title:
LongSheng
Horticulture Technology Co., Ltd.
(company
seal)
Authorized
Representative : _________________
Name:
Title:
Dandong
Longsheng
Call
Option Agreement
Appendix
1
Basic Information of
LongSheng
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Company
name
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:
LongSheng Horticulture Technology Co., Ltd.
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Registered
address
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:
Group1, Longsheng Village, Shancheng Town, ZhenAn District, Dandong,
LiaoNing Province
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Registered
capital
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:
RMB100,000
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Equity
structure
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:
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Name of Shareholder
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Capital Contribution
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Equity Share
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Contribution
Method
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||||
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XXXX
Xxxxx
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RMB100,000
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100 | % |
Cash
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Fiscal
year
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:
from January 1 to December 31 (calendar
date)
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Dandong Longsheng
Call
Option Agreement
Appendix
2
Option Exercise
Notice
To: Xx.
Xxxx Guang
Given
that we have entered into the Call Option and Cooperation Agreement with you and
LongSheng Horticulture Technology Co., Ltd. (“LongSheng”), as of this 10 day
of March, 2010 (the “Option
Agreement”) and reached an agreement that, to the extent permitted by PRC
laws and regulations, you shall transfer your equity interest in LongSheng to
our company or any third party designated by us based on our
demand.
Therefore,
we hereby notify you as follows:
We hereby
request to exercise the Call Option under the Option Agreement, and we/[name of
company/individual] designated by us will accept _____% equity interest held by
you in LongSheng (the “Proposed
Equity”). Upon receipt of this Notice, please immediately transfer all
the Proposed Equity to us/[name of company/individual] designated by us in
accordance with the agreed terms in the Option Agreement.
Best
regards,
Shenzheng
Zhihao Dongbo Technology Ltd.
(company
seal)
Authorized
Representative: ______________
Date:
______________
Dandong
Longsheng
Call
Option Agreement
Appendix
3
Power
of Attorney
I, XXXX
Xxxxx (identity card number: 232330196808084611),
hereby irrevocably appoints any person designated by Shenzheng Zhihao Dongbo
Technology Ltd. as my authorized representative to sign on my behalf all legal
documents necessary for or in connection with enabling Shenzheng Zhihao Dongbo
Technology Ltd. to exercise its rights under the Call Option and Cooperation
Agreement entered into by and between it, LongSheng Horticulture Technology Co.,
Ltd. and myself.
Signature:
_________________
Date:
_____________________
