EXCLUSIVE EQUITY INTEREST PURCHASE AGREEMENT
THIS
EXCLUSIVE
EQUITY INTEREST PURCHASE
AGREEMENT (the
“Agreement”)
is
entered into by and among the following parties on March 31, 2008.
Party
A: WALLIS DEVELOPMENT LIMITED,
a
foreign company incorporated under the Laws of HongKong with its registered
address at Xxxx
00,
0xx
Xxxxx,
Xxx Xxxxx Xxxxx, 00 Xxx Xxxxx Xxxxxx, Xxxxxxx Xxxx Xxxx. .
Party
B: DALIAN
XXXXXXX INTERNATIONAL SHIPPING AGENCY CO., LTD.
Address:
Xx. 0, Xxxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxx, Dalian
Party
C: DALIAN
XXXXXXX INTERNATIONAL LOGISTICS CO., LTD.,
a
limited liability company duly established and valid existing under the PRC
laws, with its registered address at Room23-A2 Summit Building, Xx.0 Xxxxxxxx
Xxxx, Xxxxxxxxx Xxxxxxxx, Dalian
WHEREAS,
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1.
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Party
B holds1.4% equity interest in Party
C;
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2.
|
Party
C and [BEIJING
HUATE XINGYE KEJI CO., LTD.],
a
foreign invested company wholly owned by Party A, have entered into
Exclusive Consulting and Service Agreement, and other
agreements.
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NOW
THEREFORE, through
mutual negotiations, the Parties hereto agree as follows:
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1.
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Transfer
of Equity Interest
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| 1.1 |
Grant
Right
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Party
B
hereby irrevocably grants Party A the exclusive right that Party A, based on
the
consideration provided in Article 1.3 of this Agreement, can purchase or
designate one or more persons (the “Specified
Person”)
to
purchase the Equity Interest subject to compliance with legal restriction under
the applicable PRC laws(the “Purchase
Right”).
Except for Party A and the Specified Person, Party C shall not sell the Equity
Interest to any third party. Party C hereby agrees that Party B may grant the
Purchase Right to Party A, and the other shareholder of Party C hereby give
up
the preemption right relating to the Equity Interest evidenced by the
Announcement document attached hereto as the Appendix. Such person hereunder
in
this Agreement refers to individual, corporation, joint enterprise, partnership,
enterprise, trust or non-corporation organization.
1
| 1.2 |
Steps
for Exercise of the Purchase Right
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The
compliance with PRC laws and regulations shall be the precondition for exercise
of the Purchase Right by Party A. When Party A intends to exercise the Purchase
Right, it shall issue a written notice (the “Purchase
Notice”)
Party
C, and the Purchase Notice shall contain the following items: (a) Party A
intends to exercise the Purchase Right; (b) the percentage of the Equity
Interest to be purchased therewith; and (c)the effective date or transfer date.
| 1.3 |
Consideration
of the Equity Interest
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The
Transfer Fee (“Transfer
Fee”)
payable by Party A shall be confirmed by and between Party A and Party B through
negotiation according to the evaluation of the Equity Interest by the relevant
qualified institute, and it shall be the lowest price allowable by the PRC
laws
and regulations.
| 1.4 |
Transfer
of the Equity Interest
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When
Party A exercises the Purchase Right every time:
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1.4.1
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Party
B shall procure that Party C convene shareholders’ meeting timely and
shall pass the shareholders’ resolutions that Party B can transfer to
Party A or the Specified Person the Equity
Interest.
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| 1.4.2 |
Party
B shall enter into Equity Transfer Contract in relation to the Equity
Interest with Party A (or the Specified Person, if applicable) in
accordance with this Agreement and Purchase Notice.
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| 1.4.3 |
The
related parties shall execute all other necessary agreements or documents,
and obtain all necessary government approvals and consents, and take
all
necessary actions to legally transfer the ownership of the Equity
Interest
to Party A or the Specified Person and procure Party A or the Specified
Person to be registered as the owner of the Equity Interest. The
Equity
Interest should be free from any Security Interest. For the purpose
of
this Agreement, Security Interest include guarantee, mortgage, any
third
party rights or interest, any purchase rights, preemption rights,
offset
rights and any other security arrangements. It is clarified that
the
Security Interest do not include any security interest accrued in
accordance with this Agreement and the Equity Interest Pledge Agreement
which is entered into by and between Party B and [BEIJING
HUATE XINGYE KEJI CO., LTD.]
on
March 31, 2008 (“Equity
Interest Pledge Agreement”).
According to the Equity Interest Pledge Agreement, Party B shall
pledge
all the equity possessed by Party B in Party C to [BEIJING
HUATE XINGYE KEJI CO., LTD.]
as
a guarantee to the Exclusive Technical Consulting and Service Agreement
which is entered into by and between Party C and [BEIJING
HUATE XINGYE KEJI CO., LTD.]
on
March 31, 2008 (“Exclusive
Technical Consulting and Service Agreement”).
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2
| 1.5 |
Payment
for the Equity Interest
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| 1.5.1 |
Party
A shall pay the Transfer Fee to Party B in accordance with the provision
of Article 1.3.
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2.
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Warranties
Relating to the Equity
Interest
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2.1
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Warranties
of Party C
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2.1.1
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Without
the written consent from Party A or [BEIJING HUATE XINGYE KEJI CO.,
LTD.],
Party C will not amend, modify any provisions of the constitutional
documents of the company, and will not increase or reduce its registered
capital, or change the equity holding structures in other
methods.
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2.1.2
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Shall
keep the Party C legally existing, and prudently and efficiently
operate
its business and deal with corporate affairs in accordance with commercial
standards and practice.
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2.1.3
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Unless
having got prior written consent from Party A or [BEIJING HUATE XINGYE
KEJI CO., LTD.], Party C shall not sell, transfer, mortgage or dispose
of
any assets, business or beneficial rights of Party C, or allow any
creation of other Security
Interest.
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2.1.4
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Unless
having got prior written consent from Party A or [BEIJING HUATE XINGYE
KEJI CO., LTD.], Party C shall not occur, inherit, provide guarantee
to
any debts except for (i)the debt is occurred during the normal business
operation instead of loan; (ii) the debt has been disclosed to Party
A and
obtained Party A’s written consent.
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2.1.5
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Party
C shall operate its business normally to keep the value of its assets,
and
shall not take any action which shall bring material influence to
the
business operation and the value of the asset.
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3
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2.1.6
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Unless
having got prior written consent from Party A or [BEIJING HUATE XINGYE
KEJI CO., LTD.], Party C shall not enter into any material agreement
except for the purpose of normal business operation. (For the purpose
of
this paragraph, an agreement covering an amount in excess of RMB100,000
will be deemed as a material
agreement).
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2.1.7
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Unless
having got prior written consent from Party A or [BEIJING HUATE XINGYE
KEJI CO., LTD.], Party C shall not provide any loans to any third
party.
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2.1.8
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According
to Party A’s request, Party C shall provide any materials relating to the
operation and financial status of Party C to Party
A.
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2.1.9
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Party
C shall purchase insurance from the insurance company which can be
accepted by Party A and shall maintain such insurance. The amount
and
kinds of such insurance shall be same with the other companies which
operate the similarly business and possess similar assets with Party
C in
the same distraction.
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2.1.10
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Unless
having got prior written consent from Party A or [BEIJING HUATE XINGYE
KEJI CO., LTD.], Party C shall not merge with, combine or purchase
any
entity or make investment.
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2.1.11
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Party
C shall inform Party A of any occurred or potential litigation,
arbitration, or administrative procedure in relation to the Equity
Interest.
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2.1.12
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In
order to keep the ownership of all assets, Party C shall execute
all
necessary or proper documents, take all necessary or proper actions
and
substitute all necessary or proper claims, or make all necessary
or proper
answer to all compensation claims.
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2.1.13
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Without
the prior written consent from Party A, Party C shall not allot any
dividend to any shareholder. However, Party C shall immediately allot
all
dividends to the shareholders upon request of Party
A.
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2.2
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Warranties
of Party B
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2.2.1
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Unless
having
got prior written consent from Party A or [BEIJING HUATE XINGYE KEJI
CO.,
LTD.], Party B shall not sell, transfer, mortgage or dispose of any
rights
or interest relating to the Equity Interest, or allow any creation
of
other Security Interest on the Equity Interest. However the Security
Interest under this Agreement and the Equity Interest Pledge Agreement
is
not included.
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4
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2.2.2
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Unless
having got prior written consent from Party A or [BEIJING HUATE XINGYE
KEJI CO., LTD.], Party B shall try its best to prevent the shareholders’
meeting of Party C from approving resolutions relating to the sale,
transfer, mortgage, disposal of any rights or interests relating
to the
Equity Interest, or allow any creation of other Security Interest
on the
Equity Interest. However the Security Interest under this Agreement
and
the Equity Interest Pledge Agreement is not
included.
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2.2.3
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Unless
having got prior written consent from Party A or [BEIJING HUATE XINGYE
KEJI CO., LTD.], Party B shall try its best to prevent the other
shareholders of Party C from approving resolutions relating to merge
with,
combination with or purchase any entity or make investment.
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| 2.2.4 |
Party
B shall inform Party A of any occurred or potential litigation,
arbitration, or administrative procedure in relation to the Equity
Interest.
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| 2.2.5 |
Party
B shall procure the other shareholders of Party C approve the transfer
of
the Equity Interest as set out in this
Agreement.
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2.2.6
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In
order to keep the ownership of the Equity Interest, Party C shall
execute
all necessary or proper documents, take all necessary or proper actions
and substitute all necessary or proper claims, or make all necessary
or
proper answer to all compensation
claims.
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2.2.7
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Upon
requirement by Party A or [BEIJING HUATE XINGYE KEJI CO., LTD.] from
time
to time, Party B shall immediately transfer to Party A or the Specified
Person of the Equity Interest unconditionally at any time.
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2.2.8
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Party
B shall strictly comply with this Agreement and any other agreements
which
may be entered into Party B, Party C and Party A collectively or
separately, and shall perform its obligations under such agreements,
and
shall not make any actions which shall affect the validity and
enforceability of such agreements.
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3.
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Representations
and Warranties
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3.1
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Party
B and Party C jointly and separately make representations and undertakings
as followed:
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3.1.1
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It
has the power to enter into and deliver this Agreement and Equity
Transfer
Contract which will executed by Party B from time to time for the
transfer
of the Equity Interest, and it has the power and capacity to perform
its
obligations under this Agreements and Equity Transfer
Contract.
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5
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3.1.2
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Neither
the execution and delivery of this Agreement or any Equity Transfer
Contract, nor performance of the obligations under this Agreement
or any
Equity Transfer Contract will: (i) violate any PRC laws; (ii) conflict
with its Articles of Association or other organizational documents;
(iii)
breach any contract or document which Party C is a party or which
binds on
Party C; (iv) violate any acquired permit, approval or any valid
qualification; or (v) result in the ceasing or revocation or additional
conditions to the acquired permit, approval.
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3.1.3
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Party
B obtains full and transferable ownership on its assets and facilities.
Besides the pledge and/or mortgage incurred by this Agreement and
the
pledge set on Party B’s equity interest incurred by the Equity Interests
Pledge Agreement, there is no any other pledge and/or mortgage on
such
assets and facilities.
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3.1.4
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Party
C has no outstanding debt except for (i)the legal debt, which is
occurred
during the normal business operation instead of loan; (ii) the debt
has
been disclosed to Party A.
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3.1.5
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Party
C complies with all applicable laws and regulations relating to equity
transfer.
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3.1.6
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There
is no occurred, pending or potential litigation, arbitration, or
administrative procedure in relation to the Equity Interest, assets
of
Party C and other matters of Party
C.
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4.
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Effectiveness
and Term of this Agreement
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This
Agreement shall take effect upon execution by the Parties (“Effective Date”),
the term will be ten (10) years, and it may be extended for another ten (10)
years if Party A requires so.
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5.
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Governing
Law and Dispute Settlement
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5.1
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Governing
Law
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The
formation, validity, interpretation and implementation, and dispute settlement
under this Agreement shall be governed by PRC laws.
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5.2
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Dispute
Settlement
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With
regards to any dispute in relation to the interpretation or implementation
of
this Agreement, the Parties shall negotiate friendly to settle the dispute.
If
it can not be settled within thirty (30) days from the date any party issuing
written notice requesting settlement of dispute through negotiation, each party
has the right to submit it to China International Economic and Trade Arbitration
Committee for arbitration according to the valid arbitration rules. The
arbitration shall be held in Beijing. The arbitration award is final and binding
on each party.
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6.
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Tax
and Expenses
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Each
party shall bear its own tax, costs and expenses relating to preparing for
and
executing this Agreement and Equity Transfer Contract and relating to completing
the contemplated deal.
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7.
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Notice
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Any
notice or other communication under this Agreement shall be in Chinese and
be
sent to the address listed below or other address as may be designated from
time
to time by hand delivery or mail or facsimile. Any notice required or given
hereunder shall be deemed to have been served: (a) the same date if sent by
hand
delivery; (b)the tenth date if sent by air-mail , or the fourth date if sent
by
the professional hand deliver which is acknowledged worldwide; and (c) the
receipt date displayed on the transmission confirmation notice if sent by
facsimile.
Party
A: WALLIS DEVELOPMENT LIMITED,
a
foreign company incorporated under the Laws of HongKong with its registered
address at Xxxx
00,
0xx
Xxxxx,
Xxx Xxxxx Xxxxx, 00 Xxx Xxxxx Xxxxxx, Xxxxxxx Xxxx Xxxx. .
Party
B: DALIAN
XXXXXXX INTERNATIONAL SHIPPING AGENCY CO., LTD.
Address:
Xx. 0, Xxxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxx, Dalian
Party
C: DALIAN
XXXXXXX INTERNATIONAL LOGISTICS CO., LTD.,
a
limited liability company duly established and valid existing under the PRC
laws, with its registered address at Room23-A2 Summit Building, Xx.0 Xxxxxxxx
Xxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxx
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0.
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Confidentiality
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8.1
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The
Parties acknowledge and confirm that any oral or written information
relating to this Agreement communicated among the Parties shall be
deemed
as confidential information (“Confidential Information”). The Parties
shall keep confidential of such Confidential Information and shall
not
disclose to any third party unless having got written consent from
the
other parties. The following situations shall be excluded: (a) It
is
publicly available or will become publicly available( it is not disclosed
by the party receiving such Confidential Information); (b) it is
disclosed
in accordance with applicable laws or regulations; or (c) the party
who
disclose any Confidential Information to its attorney or financial
advisor
who need to access such information shall ensure that such attorney
or
financial advisor complies with this Article and keep confidential
of such
information. The disclosure by the employee or agent of Each Party
shall
be deemed that it is disclosed by such party itself, and the party
shall
undertake breaching liability. The Parties agree that the provisions
of
this Article shall survive notwithstanding the termination of this
Agreement.
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7
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9.
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Further
Assurance
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9.1
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The
Parties agree that they will, without any hesitation, execute any
necessary documents for the purpose of performing or objective of
this
Agreement or any documents which is benefit for the purpose of this
Agreement, and will take all necessary actions for the purpose of
performing or objective of this Agreement or take actions which is
benefit
for the purpose of this Agreement.
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10.
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Miscellaneous
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10.1
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Amendment
and supplementation
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Any
revision, amendment and supplementation of this Agreement shall be in writing
and be executed by Each Party.
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10.2
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Compliance
with laws and regulations
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The
Parties shall comply with all applicable laws and regulations which have been
formally issued and may be publicly acquired.
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10.3
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Entire
agreement
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Unless
it
is otherwise revised, amended or supplemented after execution of this Agreement,
this Agreement constitutes the entire agreement among the parties as to the
subject matter, and supersedes any prior oral or written negotiations,
statements or agreement among the parties relating thereto.
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10.4
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Headings
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Headings
in this Agreement is only set out for reading convenience, and shall not be
used
to interpret, explain or otherwise influence the meaning of the provisions
of
this Agreement.
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10.5
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Language
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This
Agreement is made in Chinese and English in three originals. The Chinese version
will prevail in the event of any inconsistency between the English and any
Chinese translations thereof.
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10.6
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Severability
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If
any of
the terms of this Agreement is declared invalid, illegal or unenforceable in
accordance with any applicable laws or regulations, the validity and
enforceability of the other terms hereof shall nevertheless remain unaffected,
and the Parties hereto agree to, through friend negotiation, make valid terms
to
such invalid, illegal or unenforceable terms, and the economic results from
such
valid terms shall be close to, as much as may be impossible, the superseded
invalid, illegal or enforceable terms.
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10.7
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Successor
|
This
Agreement shall bind on the successor of each party or the transferee permitted
by the other parties and shall be interpreted for its benefit.
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10.8
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Continue
to be effective
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10.8.1
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Any
duties occurred in relation to the Agreement before expiration or
early
termination of the Agreement shall continue to be effective after
expiration or early termination of the Agreement.
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10.8.2
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The
provisions of Articles 5, 7 and 10.8 shall survive nothwithstanding
the
termination of this Agreement.
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10.9
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Waiver
|
Each
party may waive the terms and conditions under this Agreement in writing. Such
waive document should be duly signed by the each party. Any waive relating
to
the breach of the other party in certain circumstance shall not be deemed as
that the waiver party has made waiver to the other party for the same breach
in
other circumstances.
[The
remainder of this page is intentionally left blank]
9
This
page
is the signing page of this Exclusive Equity Interest Purchase Agreement.
IN
WITNESS WHEREOF,
the
both Parties have its authorized representative executed this Agreement on
the
date first above written.
Party
A: /s/ WALLIS DEVELOPMENT LIMITED
Legal
Representative (Signature):
Party
B: /s/ DALIAN
XXXXXXX INTERNATIONAL SHIPPING AGENCY CO., LTD.
Signature:
Xxx
Xxxx
Party
C:
/s/ DALIAN XXXXXXX INTERNATIONAL LOGISTICS CO., LTD.
Legal
Representative (Signature): Li
Honglin
10
