EXHIBIT 10.28
AMENDED AND RESTATED
SUBROGATION AGREEMENT
This Amended and Restated Subrogation Agreement (the "AGREEMENT") is made and
entered into as of ________________, 2006, (the "EFFECTIVE DATE"), by and among
1. PARTY A: [Name of the contracting shareholder of the affiliated entity], a
People's Republic of China ("PRC") national and holder of PRC [ID number]
("PARTY A");
2. PARTY B: [Name of the affiliated entity, the wholly-owned foreign
enterprise], a company incorporated under the laws of the PRC and having
its principal office located at [Address] ("PARTY B"); and
3. PARTY C: [Name of the PRC subsidiary], a limited liability company
incorporated under the laws of the PRC and having its registered office at
[Address] ("PARTY C").
WHEREAS:
A. By means of an Amended and Restated Loan Agreement (the "LOAN AGREEMENT")
entered into by and between PARTY A and PARTY B on [date], PARTY A borrowed
from PARTY B a total sum of RMB [Amount] (the "INVESTMENT AMOUNT") to
acquire [___] percent ([___] %) of the total of the equity interest in
PARTY C;
B. PARTY A executed equity pledge agreement dated [date] and [date],
respectively (the "EQUITY PLEDGE AGREEMENT") by which it pledged all of its
equity interest in PARTY C to PARTY B as security for PARTY B;
C. PARTY A agrees to voluntarily and irrevocably appoint the person designated
in writing by PARTY B from time to time (the "APPOINTEE") to act as PARTY
A's attorney-at-law and specifically authorize him/her to act for PARTY A
to exercise PARTY A's voting right arising from his/her equity interests in
PARTY C and to execute and deliver an authorization letter respectively in
the form attached at Exhibit A hereto upon such appointment and as required
by PARTY B; and
D. PARTY A, PARTY B and PARTY C entered into a Subrogation Agreement on
[date].
NOW THEREFORE, the parties hereto have amended and restated the Subrogation
Agreements as follows:
ARTICLE 1. RIGHTS OF PARTY A AS EQUITY HOLDER
1.1 PARTY A invested the Investment Amount in acquiring [___] percent ([___]%)
of the total equity interest in PARTY C in the PRC. PARTY A has all rights
and
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powers as stipulated by any applicable laws of the PRC and the articles of
association of PARTY C.
ARTICLE 2. RIGHT OF SUBROGATION
2.1 As permitted by the applicable law, PARTY A hereby unconditionally and
irrevocably authorises the Appointee or other person designated by PARTY B
from time to time with his or her shareholder's voting rights and other
shareholder's right for representing him or her to exercise such rights at
the shareholders meeting of PARTY C in accordance with the laws and its
Article of Association including, but without limitation to, the rights to
sell or transfer all or any of his or her equity interests in PARTY C,
increase or reduction of the registered capital of PARTY C, merger,
sub-division, change in form, winding up and liquidation of PARTY C.
2.2 PARTY A acknowledges that without the prior written consent of PARTY B, it
shall not transfer any or all of his or her equity interests in PARTY C
during the period of subrogation to the Appointees.
2.3 For the purposes of exercising the aforesaid rights and powers, the
Appointee shall have access to all information in relation to and the right
to investigate matters concerning the operation, business, clients,
financials and employees of PARTY C and to review and peruse any other
information in relation to PARTY C. PARTY C shall provide full assistance
to the Appointee to achieve this purpose.
ARTICLE 3. EXERCISE OF RIGHT OF SUBROGATION
3.1 In the exercise of the rights hereunder, the Appointee shall be deemed as
authorized representatives of PARTY A so far as is necessary in the view of
the Appointee or PARTY B. PARTY A shall be responsible for all claims
whatsoever arising from or in connection with such appointment.
3.2 PARTY A shall provide all necessary assistance to the Appointee in the
exercise of the aforesaid rights and powers, including but not limited to
signing any shareholders' resolution or any other relevant documents as
requested by the Appointee, whether the signing is for the purpose of
compliance with any applicable laws (including but not limited to documents
required to be submitted to any governmental authority for examination,
approval or registration) or as requested by the Appointee (including but
not limited to documents which the Appointee deemed to be more appropriate
if the same were signed by PARTY A).
3.3 If for whatever reason, (except for any breach by PARTY A or PARTY C) the
rights and powers as conferred herein to the Appointee cannot be exercised
during the term of this Agreement, all parties shall agree on an
alternative arrangement most akin to the arrangement as stipulated
hereunder, and to execute, if necessary, any supplementary agreement,
amendment or revision of this agreement to achieve a similar effect as a
result of the provision of this agreement.
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3.4 PARTY A and PARTY C hereby unconditionally and irrevocably agree that
neither the Appointee nor PARTY B shall be responsible for any loss or
damage sustained by PARTY C arising from or in connection with the exercise
of any of the aforesaid rights or powers.
ARTICLE 4. TERM OF SUBROGATION
4.1 The right of subrogation, conferred by PARTY A on the Appointee pursuant to
any provisions of this Agreement, shall become effective upon the execution
of this Agreement and shall terminate upon the repayment in full of the
indebtedness incurred under the Loan Agreement.
ARTICLE 5. NOTICE
5.1 All notices, requests, demands and other communications to be given
pursuant to the terms of this Agreement shall be in writing and shall be
deemed effectively given upon personal delivery or upon deposit in the
government postal service or upon deposit for delivery by an
internationally recognized express mail courier service (for international
delivery of notice), with postage and fees prepaid, addressed to the other
party at its address as shown below, or to such other address as such party
may designate in writing from time to time to the other party.
ARTICLE 6. LIABILITY FOR DEFAULT
6.1 Breach of any provisions of this Agreement by any party hereto shall be
deemed as a default.
6.2 During the performance of this Agreement, any allowance given by PARTY B to
any default or delay by PARTY A, or postponement of the exercise of
interests and powers specified in this Agreement by PARTY B and PARTY C,
shall not harm, affect or resist all interests and powers of PARTY B
pursuant to any provisions of this Agreement and applicable law. The
aforesaid allowance, grace or postponement of the exercise of interests and
powers specified in this Agreement by PARTY B shall be deemed neither as
permission or acquiescence of any breach of this Agreement, nor as waiver
by PARTY B of the right of taking actions against present or future default
by PARTY A.
ARTICLE 7. APPLICABLE LAW AND SETTLEMENT OF DISPUTES
7.1 This Agreement shall be governed by the laws of the PRC.
7.2 If the parties hereto are unable to settle any dispute arising from or in
connection with the provisions of this Agreement through mediation, any
party hereto can submit the dispute for final and binding arbitration to
the China International Economic and Trade Arbitration Commission
("CIETAC") in Shanghai before a panel of three (3) arbitrators pursuant to
the then valid arbitration rules of CIETAC.
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ARTICLE 8. CONFIDENTIALITY
8.1 Except as may be required by applicable law, without the consent of the
other parties hereto, no party hereto shall disclose to a third party the
existence, or provisions and conditions of this Agreement, nor allow the
party's board directors, management personnel, employee or agent to make
such disclosure.
ARTICLE 9. EFFECTIVE DATE AND MISCELLANEOUS
9.1 This Agreement shall come into force upon signature or seal by authorized
representatives of each party hereto and shall replace the original
Subrogation Agreement entered into on [date].
9.2 Any provision of this Agreement which is invalid, illegal or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability, without
affecting in any way the remaining provisions hereof in such jurisdiction
or rendering that or any other provision of this Agreement invalid,
illegality or unenforceable in any other jurisdiction. The Parties shall,
through friendly consultation, make reasonable efforts to replace those
invalid, illegal or non-enforceable provisions with valid provisions that
may bring the similar economic effects with the effects caused by those
invalid, illegal or non-enforceable provisions.
9.3 This Agreement may be executed in counterparts and each copy shall have the
equal legal effect.
9.4 The terms of this Agreement will inure to the benefit of and bind the
parties hereto and their respective successors, assigns, executors, heirs
and legal representatives.
9.5 This Agreement, the Loan Agreement, and the Equity Pledge Agreement shall
be mutually indivisible.
9.6 Each party hereto has read carefully all provisions of this Agreement and
agrees to strictly comply with this Agreement.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the parties have executed this Subrogation Agreement as of
the date and year first above written.
PARTY A PARTY B
[Name of the contracting shareholder [Name of the affiliated entity, the
of the affiliated entity] wholly-owned foreign enterprise]
By:
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By: Name:
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Title:
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PARTY C
[Name of the PRC subsidiary]
By:
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Name:
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Title: Legal Representative
EXHIBIT A
Authorization Letter
To: [_________________________________] ("APPOINTEE")
From: [Name of the contracting shareholder of the affiliated entity]
I, [Name of the contracting shareholder of the affiliated entity], a People's
Republic of China ("PRC") national and holder of PRC identity number [ID
number], is a holder of [___] percent ([___]%) of the total equity interest in
[Name of the PRC subsidiary] ("XYZ"), a limited liability company incorporated
under the laws of the PRC. I hereby appoint __________ as my attorney-at-law and
specifically authorize him/her to act for me to exercise all the shareholder's
voting right arising from and in connection with my equity interests in XYZ,
including but not limited to the right to sell or transfer any or all of equity
interests of XYZ and to designate and appoint the general manager of XYZ as my
authorized representative on the shareholders' meeting of XYZ.
The term of this Power of Attorney shall commence from the date hereof and shall
remain in full force and effect during the term of the Amended and Restated
Subrogation Agreement entered into among XYZ, [Name of the affiliated entity,
the wholly-owned foreign enterprise] and me.
Executed this _______________________.
________________________________________
[Name of the contracting shareholder]
