JOINT VENTURE AGREEMENT BY AND AMONG ASIA LEADER INVESTMENTS LIMITED RAD INTERNATIONAL INVESTMENT FUND LTD. AND KEVIN MA Dated: February 20, 2007
Execution
Copy
BY
AND AMONG
ASIA
LEADER INVESTMENTS LIMITED
RAD
INTERNATIONAL INVESTMENT FUND LTD.
AND
▇▇▇▇▇
▇▇
Dated:
February 20, 2007
This
Joint Venture Agreement of New Goal International Limited is made as of February
20, 2008 by and among the Persons set forth on Schedule A hereto (collectively,
the “Joint Venturers”) and, with respect to only the representations,
warranties, covenants and agreements set forth in Article IX hereof, Mr. ▇▇▇▇▇
▇▇ (“▇▇▇▇▇ ▇▇”).
A. The
Joint
Venturers have formed New Goal International Limited (the “Company”) as a
company with limited liability under the laws of Hong Kong.
B. The
Joint
Venturers are the shareholders in the Company and desire to adopt a joint
venture company agreement to govern their respective rights and obligations
in
the Company.
C. As
the
indirect majority shareholder of one of the Joint Venturers RAD, ▇▇▇▇▇ ▇▇
desires to be a party to the representations, warranties, covenants and
agreements set forth in Article IX hereof.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which
is
acknowledged, the parties agree that the following shall be the Joint Venture
Agreement of the Joint Venturers and Ma relating to the Company.
ARTICLE
I
DEFINITIONS
When
used
in this Agreement, the following terms have the following meanings:
1.1 “Action”
means any claim, action, suit, arbitration, inquiry, proceeding or investigation
by or before any Governmental Authority.
1.2 “Affiliate”
of another Person means (a) a Person directly or indirectly (through one or
more
intermediaries) Controlling, Controlled by or under common Control with that
other Person; (b) a Person owning or controlling ten percent (10%) or more
of the outstanding voting securities or beneficial interests of that other
Person;
1.3 “Agreement”
means this Joint Venture Agreement relating to the Company.
1.4 “Asia
Leader” means Asia Leader Investments Limited, a company formed under the laws
of the Special Administrative Region of Hong Kong;
1.5 “Business”
means engaging directly or indirectly in financial leasing arrangements and
other financing services in the following agreed designated industries:
alternative energy, financial and banking services infrastructure, energy saving
infrastructure, automobiles and transportation, healthcare, aviation,
telecommunications other than 2G subscriber financing and 2G network expansion,
forestry and other industries determined by the Board of Directors of the
Company.
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1.6 “Business
Day” means
any
day other than a Saturday, Sunday or day on which banking institutions in Hong
Kong are not open for business.
1.7 “Capital
Contribution” of a Joint Venturer means the amount of money in cash and
immediately available funds and the gross Fair Market Value on the date
contributed of property (net of any liability assumed by the Company in respect
of such property or to which the property is subject), contributed to the
capital of the Company by such Joint Venturer, or services rendered by such
Joint Venturer to or for the benefit of the Company
1.8 “Company”
means New Goal International Ltd., a Hong Kong company
1.9 “Control”
of a Person means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
“Controlled
by”, “Controlling” and “under common Control with” shall have correlative
meanings.
1.10 “Fair
Market Value” of property means the amount that would be paid for such property
in cash at the closing by a hypothetical willing buyer to a hypothetical willing
seller, each having knowledge of all relevant facts and neither being under
a
compulsion to buy or sell.
1.11 “Fiscal
Year” means the year ended December 31.
1.12 “Governmental
Authority” means any central, provincial, or local (in the Peoples’ Republic of
China, including, for these purposes, the Special Administrative Region of
Hong
Kong) or any foreign government, governmental, regulatory or administrative
authority, agency or commission or any court, tribunal, or judicial or arbitral
body.
1.13 “Joint
Venturer” means a Person designated on Schedule A as a Joint Venturer, and any
other Person that is admitted as a Joint Venturer pursuant to the provisions
of
this Agreement, in each case until such Person ceases to be a Joint Venturer
of
the Company.
1.14 “Material
Adverse Effect” means, any change, effect or circumstance which, individually or
in the aggregate, would reasonably be expected to have a material adverse effect
on the business, assets, financial condition or results of operations of a
Person.
1,15 “NCIL”
means New Century International Leasing Co., Ltd., a wholly foreign-owned
enterprise formed under the laws of the PRC.
1.16 “Person”
means any entity, corporation, company, association, joint venture, joint stock
company, partnership (including a general partnership, limited partnership
and
limited liability partnership), limited liability company, trust, real estate
investment trust, organization, individual, nation, state, government (including
any agency, department, bureau, board, division and instrumentality thereof),
trustee, receiver or liquidator.
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1.17 “PRC”
means the People’s Republic of China, including for these purposes the Special
Administrative Regions of Hong Kong and Macau.
1.18 “RAD”
means RAD International Investment Fund Ltd., a company formed under the laws
of
the Commonwealth of The Bahamas.
1.19 “Transfer”
means a sale, assignment, transfer, other disposition, pledge, hypothecation
or
other encumbrance, whether direct or indirect, whether voluntary, involuntary
or
by operation of law, and whether for value or not, including any transfer by
gift, devise, intestate succession, sale, operation of law, upon the termination
of a trust, as a result of or in connection with any property settlement or
judgment incident to a divorce, dissolution of marriage or separation, by decree
of distribution or other court order.
1.20 “WFOE”
means the wholly foreign-owned enterprise with a financial leasing license
to be
established pursuant to Section 2.6.
ARTICLE
II
ORGANIZATIONAL
MATTERS
2.1 Name.
The
name of the Company shall be “New Goal International Limited” The
Business of the Company shall be conducted under that name. The Company shall
promptly notify
the Joint Venturers of any change in the name of the Company.
2.2 Term.
The
term of the Company’s existence commenced upon the compliance with Hong Kong
formation procedures and shall continue indefinitely.
2.3 Office.
The
principal office of the Company shall initially be located at ▇▇▇▇▇ ▇▇▇▇▇,
▇▇/▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇.
2.4 Purpose
of Company.
The
purpose of the Company shall be to engage in the Business, and any activities
incidental thereto or connected therewith.
2.5 Joint
Venturers.
The
name, address, facsimile and Capital Contribution and share ownership percentage
of each Joint Venturer is set forth on Schedule A. The Company shall amend
Schedule A to reflect any change pursuant to this Agreement of which the Company
is aware in any of the foregoing with respect to any Joint
Venturer.
2.6 Qualification.
The
Company shall qualify to do business in each jurisdiction where the Joint
Venturers determine that such qualification is required and shall as soon as
practicable following the receipt of the Capital Contributions pursuant to
Section 3.1.1 file an application to establish a wholly foreign-owned enterprise
in Beijing with a financial leasing license organized in accordance with the
laws of the PRC.
The WFOE
shall be one hundred (100%) percent owned by the Company.
2.7 Amendment
of Memorandum and Articles of Association.
The
Joint Venturers shall amend the existing memorandum and articles of association
of the Company in order to make such memorandum and articles to be consistent
in
all respects with the terms and conditions of this Agreement. In the event
of
any inconsistency between this Agreement and the memorandum and articles of
association of the Company, this Agreement shall prevail.
4
ARTICLE
III
CAPITAL
CONTRIBUTIONS
3.1 Capital
Contributions.
3.1.1 Capital
Contributions.
Each
Joint Venturer will contribute to the Company the Capital Contribution specified
opposite such Joint Venturer’s name on Schedule A, the receipt of which will be
acknowledged by the Company, on the Contribution Date (as defined in Section
3.4). The
Capital Contribution to be made by Asia Leader shall be US$70,000,000 in the
form of cash subject to adjustment as set forth in Section 3.1.2. The Capital
Contribution to be made by RAD shall be in the form of RAD obtaining for the
Company the following agreements:
(a) Exclusive
cooperation agreement between the Company and NCIL substantially in the form
of
Exhibit A to be agreed and attached within fourteen (14) days of the date hereof
(the “Exclusive Cooperation Agreement”)
(b) Three
framework contracts substantially in the forms set forth in Exhibit B to be
agreed and attached within fourteen (14) days of the date hereof, which shall
include the framework contract for ATM among the Company, NCIL, the supplier
and
the lessee (the “ATM Framework Contract”), the framework contract for
automobiles among the Company, NCIL and the supplier (the “Automobile Framework
Contract”), and the framework contract for windmills among the Company, NCIL and
the supplier (the “Windmill Framework Contract”);
(c) Three
trust lease contracts substantially in the forms set forth in Exhibit C to
be
agreed and attached within fourteen (14) days of the date hereof, which shall
include the trust lease contract for ATM between the Company and NCIL (the
“ATM
Trust Lease Contract”), the trust lease contract for automobiles between the
Company and NCIL (the “Automobile Trust Lease Contract”), and the trust lease
contract for windmills between the Company and NCIL (the “Windmill Trust Lease
Contract”);
(d) Three
lease contracts substantially in the forms set forth in Exhibit D to be agreed
and attached within fourteen (14) days of the date hereof, which shall include
the lease contract for ATM between the NCIL and each lessee (the “ATM Lease
Contract”), the lease contract for automobiles between NCIL and each lessee (the
“Automobile Lease Contract”), and the lease contract for windmills between the
NCIL and each lessee (the “Windmill Lease Contract”);
(e) Three
supply contracts substantially in the forms set forth in Exhibit E to be agreed
and attached within fourteen (14) days of the date hereof, which shall include
the supply contract for ATM among the Company, NCIL, the supplier and and each
lessee (the “ATM Supply Contract”), the supply contract for automobiles among
the Company, NCIL and the supplier (the “Automobile Supply Contract”), and the
supply contract for windmills among the Company, NCIL and the supplier (the
“Windmill Supply Contract”);
5
(f) Arranger
Agreements substantially in the form of Exhibit F to be agreed and attached
within fourteen (14) days of the date hereof (the “Arranger
Agreements”);
(g) Right
of
first refusal agreement executed and dated as of the date hereof in the form
of
Exhibit G (the “Right of First Refusal Agreement”);
(h) Joint
venture contracts between the Company and the following three PRC entities
or
their nominees, 中汽乾坤汽炚租犿北京有榰公司,
北京东宏汽炚租犿有榰公司,
and
中山市明槍电器厂,
which
contracts shall be signed within ninety (90) days of the Contribution Date
(the
“Joint Venture Contracts”); and
(i) Temporary
assistance to the Company until the WFOE receives its official business license
authorizing it to engage in the financial leasing business in the PRC (with
such
assistance to be provided at cost by RAD to the Company).
3.1.2 Adjustment
to Asia Leader’s Capital Contribution.
The
parties agree that the value of the equipment purchased by the Company pursuant
to the Supply Agreements shall amount to US$70,000,000. However, in the event
that the value of such equipment shall be less than US$70,000,000 the amount
of
Asia Leader’s Capital Contribution shall be decreased by the same amount,
provided that in no event shall the value of such equipment as set forth in
the
Supply Agreements be less than US$50,000,000.
3.1.3 No
Further Capital Contributions.
Except
as set forth in this Section 3.1, no Joint Venturer shall be required to make
any capital contribution or lend money to the Company.
3.2 No
Interest.
No
Joint Venturer shall be entitled to receive any interest on his Capital
Contributions.
3.3 Share
Certificates.
The
Company shall issue certificates representing the shares of stock contemplated
by Schedule A.
3.4 Conditions
to Capital Contributions.
Subject
to the terms and conditions of this Agreement, the making of the capital
contributions of the Joint Venturers shall be subject on or prior to the date
on
which the last of conditions set forth in this Section 3.4 has been satisfied
or
waived by the relevant Joint Venturer (the “Contribution Date”).
6
3.4.1 Conditions
to Obligations of Asia Leader. The
obligations of Asia Leader to make its capital contributions shall be subject
to
the fulfillment or its waiver of each of the following conditions:
(a) Representations,
Warranties, and Covenants.
The
representations, warranties and covenants of RAD and ▇▇▇▇▇ ▇▇ contained in
this
Agreement shall have been true and correct when made and shall be true and
correct as of the Contribution Date with the same force and effect as if made
as
of the Contribution Date; RAD and ▇▇▇▇▇ ▇▇ shall have performed all obligations
under this Agreement required to be performed by them as of the Contribution
Date.
(b) No
Proceeding or Litigation.
No
Action shall have been commenced or threatened by or before any Governmental
Authority against RAD, NCIL (as defined in Section 9.1) or ▇▇▇▇▇ ▇▇ seeking
to
restrain or materially and adversely alter the transactions contemplated hereby
or which is likely to render it impossible or unlawful to consummate the
transactions contemplated by this Agreement or that could have a Material
Adverse Effect.
(c) Consents
and Approvals.
RAD and
NCIL shall have received or made all required filings and approvals from all
Government Authorities and notices to or required consents of any other third
parties (including the stockholder approval if required) for the consummation
of
the transactions contemplated by this Agreement.
(d) Signature
and Effectiveness of Agreements.
The
Company shall have received the following duly signed agreements, which
agreements shall be effective as of the Contribution Date: Exclusive Cooperation
Agreement, ATM Framework Contract, Automobile Framework Contract, ATM Trust
Lease Contract, Automobile Trust Lease Contract, ATM Lease Contract, ATM Supply
Contract, Automobile Supply Contract and the Arranger Agreements. In addition,
Asia Leader may at its option require that RAD shall obtain for the Company
the
following duly signed agreements, which agreements shall be effective as of
the
Contribution Date, as conditions to be fulfilled under this Section 3.4.1:
Windmill Framework Contract, Windmill Trust Lease Contract, Windmill Lease
Contract, Windmill Supply Contract and certain Automobile Lease
Contracts.
(e) No
Material Adverse Effect.
No
event or events shall have occurred, or be reasonably likely to occur, which,
individually or in the aggregate, have, or could have, a Material Adverse Effect
on the business or operations of NCIL or its ability to perform its obligations
under the Exclusive Cooperation Agreement, ATM Framework Contract, Automobile
Framework Contract, ATM Trust Lease Contract, Automobile Trust Lease Contract,
ATM Lease Contract, ATM Supply Contract, Automobile Supply Contract, Arranger
Agreements, Right of First Refusal Agreement or any of the contracts that Asia
Leader shall require under the second sentence of Section 3.4.1(d) to be signed
and effective as of the Contribution Date .
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(f) Opinions. Asia
Leader shall have received from (i) PRC counsel to NCIL a legal opinion
addressed to Asia Leader with respect to PRC legal matters in form and substance
reasonably satisfactory to Asia Leader and its legal counsel dated the
Contribution Date; and (ii) Bahamas counsel to RAD a legal opinion addressed
to
Asia Leader in form and substance reasonably satisfactory to Asia Leader and
its
legal counsel dated the Contribution Date.
(g) Buyout
Documents.
Asia
Leader shall have received the documents referred to in Section 5.3.3, including
without limitation the Share Transfer Certificate and the release from
RAD.
(h) Resolutions.
Asia
Leader shall have received true and complete copies, certified by a duly
authorized director or corporate officer of RAD, of the resolutions duly and
validly adopted by the Board of Directors of RAD and, if necessary, the
resolutions of the shareholders of RAD evidencing RAD’s and such shareholders’
authorization of RAD’s execution, delivery and performance of this
Agreement.
(l) Consulting
Agreement.
Asia Leader and the Company shall have received a duly executed original of
the
consulting agreement between the Company and Shanghai Century Capital
Corporation (“SHCC”), a corporation in the process of formation in the
accordance with the laws of the Cayman Islands owned by the current Co-Chief
Executive Officers of Shanghai Century Acquisition Corporation, pursuant to
which SHCC will provide certain management consulting services to the Joint
Venture in consideration of a total of US$1,600,000 in fees, payable in three
installments of US$600,000 on the Closing Date, US$500,000 on January 1, 2009
and US$500,000 on January 1, 2010.
3.4.2 Conditions
to Contributions of RAD. The
obligations of RAD to make its capital contributions shall be subject to the
fulfillment or its waiver of each of the following conditions:
(a) Representations,
Warranties and Covenants.
The
representations and warranties of Asia Leader contained in this Agreement shall
have been true and correct when made and shall be true and correct in all
material respects as of the Contribution Date with the same force and effect
as
if made as of the Closing Date; Asia Leader shall have performed all obligations
under this Agreement required to be performed by it as of the Contribution
Date.
(b) No
Proceeding or Litigation.
No
Action shall have been commenced by or before any Governmental Authority against
Asia Leader seeking to restrain or materially and adversely alter the
transactions contemplated by this Agreement or which is likely to render it
impossible or unlawful to consummate the transactions contemplated by this
Agreement.
8
(c) Resolutions.
RAD
shall have received a true and complete copy, certified by the Secretary or
a
director of Asia Leader of the resolutions duly and validly adopted by the
Board
of Directors of Asia Leader evidencing its authorization of the execution,
delivery, and performance of this Agreement.
(d) Option
to Purchase. RAD
shall
have received from Asia Leader the original of its notice to exercise the Buyout
Option and a copy of the wiring instructions to effect payment of such purchase
of such shares of the Company owned by RAD.
(e) Cash
Capital Contribution of Asia Leader.
The
Company shall have received the cash capital contribution of Asia Leader as
set
forth in Sections 3.1.1 and 3.1.2.
3.5 Conditions
Subsequent.
(a) Joint
Venture Contracts.
Within
ninety (90) days following the Contribution Date, RAD shall obtain for the
Company the duly signed three Joint Venture Contracts with the three Chinese
entities or their nominees as set forth in Section 3.1.1(h).
(b) Automobile
Lease Contracts.
Within
six (6) months following the Contribution Date, RAD shall obtain for the Company
all those duly signed Automobile Lease Contracts designated by the Company
that
were not previously signed and became effective at the Contribution
Date.
(c) Windmill
Contracts.
If Asia
Leader does not require all of the windmill-related contracts set forth in
the
second sentence of Section 3.4.1(d) to be signed and become effective on the
Contribution Date, then the Company shall have the right to require RAD to
obtain for the Company within six (6) months following the Contribution Date
AD
any or all of the Windmill Framework Contract, Windmill Trust Lease Contract,
Windmill Lease Contract and Windmill Supply Contract .
ARTICLE
IV
MANAGEMENT
AND CONTROL OF THE COMPANY
4.1 Management
by the Board
of Directors
4.1.1 Exclusive
Management by the Board.
The
business, property and affairs of the Company shall be managed exclusively
by
its Board of Directors, which shall consist of three (3) members and shall
have
full, complete and exclusive authority, power and discretion to manage and
control the business, property and affairs of the Company, to make all decisions
regarding those matters, to bind the Company and to perform any and all other
actions customary or incident to the management of the Company’s business,
property and affairs and no Joint Venturer shall have any right or power to
participate in the management of the Company or to bind the Company. Asia Leader
shall appoint two (2) directors and RAD shall appoint one (1) director. Each
Joint Venturers may at any time replace any of the directors it
appoints.
9
4.1.2 Initial
Designation.
Asia
Leader initially designates ▇▇▇▇▇▇▇ ▇▇ and Mr. Hong Da Pan to serve as directors
of the Company, RAD initially designates ▇▇▇▇▇ ▇▇ to serve as a director of
the
Company. The Joint Venturers agree that ▇▇▇▇▇ ▇▇ shall serve as the chief
executive officer of the Company.
4.1.3 Arm’s
Length Transactions.
Without
the unanimous consent of the Board of Directors of the Company, any transaction
or fees between the Company and a Joint Venturer or an Affiliate of a Joint
Venturer shall be at arm’s length, upon terms no less favorable to the Company
than would be obtained from unrelated third parties dealing at arm’s length. The
Joint Venturers agree that the terms and provisions of this Agreement and the
transactions contemplated hereby satisfy such standard.
ARTICLE
V
TRANSFER
OF INTERESTS
5.1 Transfer
of Interests.
Except
as otherwise expressly provided in this ARTICLE V, no Joint Venturer may
Transfer all or any portion of its
shares in the Company. Any attempted Transfer in violation of this ARTICLE
V
hereof shall be null and void ab
initio,
and
shall not bind the Company.
5.2 Enforcement.
Upon
application to any court of competent jurisdiction, a Joint Venturer shall
be
entitled to a decree against any Person violating or about to violate such
restrictions, requiring their specific performance, including those requiring
or prohibiting
a Transfer of all or a portion of his Interest.
5.3 Option
to Purchase.
5.3.1 Grant
of Option.
RAD
hereby grants Asia Leader the exclusive option (the “Buyout Option”) to purchase
all of its shares in the Company at any time following the date hereof, on
an
all or none basis and at a purchase price of US$31,800,000.
5.3.2 Notice
and Election.
If Asia
Leader exercises the Buyout Option, it shall provide notice in writing to such
effect to RAD in accordance with Section 10.5. In the event such exercise of
the
Buyout Option is to be effected simultaneously with the acquisition of Asia
Leader by Shanghai Century Acquisition Corporation (“Shanghai”), the closing of
the Buyout Option shall take place concurrently with the closing of the
acquisition of Asia Leader by Shanghai and no notice shall be required under
this Section 5.3.2.
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5.3.3 Closing.
The
closing of a sale of RAD’s shares of the Company pursuant to Section 5.3.1 (the
“Option Shares”) shall take place at the principal office of the Company at
10:00 a.m. local time on the tenth (10th) day after notice provided in Section
5.3.2 is made, or at such other place, date and time as the Joint Venturers
may
agree. The purchase price for the Option Shares pursuant to Section 5.3.1 shall
be paid in cash at the closing. RAD shall execute and deliver to the purchasing
Asia Leader such documents as Asia Leader may reasonably request to effect
the
transfer, including without limitation a duly signed share transfer certificate
(the “Share Transfer Certificate”) and take all necessary action to ensure the
performance of the obligations and responsibilities of NCIL under the agreements
set forth in Sections 3.1.1(a), (b), (c), (d) and (g) and as set forth in
Section 3.1.1(i). In addition, RAD shall release the Company and Asia Leader
from any claim arising out of or pursuant to this Agreement.
ARTICLE
VI
ACCOUNTING,
RECORDS AND REPORTING
6.1 Books
and Records.
6.1.1 Maintenance
and Access.
The
books and records of the Company shall be kept, and the financial position
and
the results of its operations recorded, in accordance with the Company’s method
of accounting, consistently applied. The books and records of the Company shall
reflect all Company transactions and shall be appropriate and adequate for
the
Company’s business. The Company shall maintain all of the following at its
principal office, with copies available at all times during normal business
hours for inspection and copying upon reasonable notice by any Joint Venturer
or
his authorized representatives for any purpose reasonably related to the
Interest of that Joint Venturer:
(a) true
and
full information regarding the status of the business and financial condition
of
the Company;
(b) promptly
after becoming available, a copy of the Company’s tax returns, if any, for each
Fiscal Year;
(c) a
current
list of the full name and last known business, residence or mailing address
of
each Joint Venturer and directors and officers of the Company;
(d) a
copy of
this Agreement and the organizational documents of the Company and all
amendments thereto, together with executed copies of any written powers of
attorney pursuant to which this Agreement or such organizational documents
or
any amendments thereto have been executed; and
(e) true
and
full information regarding the amount of cash and a description and statement
of
the agreed value of any other property or services contributed by each Joint
Venturer and which each Joint Venturer has agreed to contribute in the
future.
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6.2 Reports.
6.2.1 Governmental
Reports.
The
Company shall cause to be filed all documents and reports required to be filed
with any governmental agency.
6.2.2 Tax
Reports.
The
Company shall cause to be prepared and duly and timely filed, at the Company’s
expense, all tax returns required to be filed by the Company.
6.3 Confidentiality.
All
books, records, financial statements, tax returns, budgets, business plans
and
projections of the Company, all other information concerning the business,
affairs and properties of the Company and all of the terms and provisions of
this Agreement shall be held in confidence by each Joint Venturer and their
respective Affiliates, subject to any obligation to comply with (i) any
applicable law, (ii) any rule or regulation of any legal authority or securities
exchange, or (iii) any subpoena or other legal process to make information
available to the Persons entitled thereto. Such confidentiality shall be
maintained until such time, if any, as any such confidential information either
is, or becomes, published or a matter of public knowledge (other than as a
result of a breach of this Section 6.3 by such Person or its Affiliate).
ARTICLE
VII
LIMITATION
OF LIABILITY; STANDARD OF CARE; INDEMNIFICATION
7.1 Limitation
of Liability.
The
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of
the
Company. No Joint Venturer, director or officer of the Company shall be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a Joint Venturer or acting as a director or officer
of
the Company.
Notwithstanding anything contained herein to the contrary, the failure of the
Company to observe any formality or requirement relating to the exercise of
its
powers or the management of its business and affairs shall not be grounds for
imposing personal liability on any Joint Venturer for any debt, obligation
or
liability of the Company.
7.2 Indemnification.
The
Company shall indemnify and hold harmless, to the fullest extent permitted
by
applicable law, any Person made, or threatened to be made, a party to an action
or proceeding, whether civil, criminal or investigative (a “proceeding”),
including an action by or in the right of the Company, by reason of the fact
that such Person was or is a Joint Venturer, director or officer of the Company
or of any of the foregoing, from and against all judgments, fines, amounts
paid
in settlement and reasonable expenses (including investigation, accounting
and
attorneys’ fees) incurred as a result of such proceeding, or any appeal therein;
provided,
however,
that
nothing contained herein shall permit any Person to be indemnified or held
harmless if and to the extent the liability sought to be indemnified or held
harmless against results from a judgment or other final adjudication adverse
to
such Person that establishes that his acts were committed in bad faith or were
the result of active and deliberate dishonesty and were material to the cause
of
action so adjudicated. The termination of any such civil or criminal proceeding
by judgment, settlement, conviction or upon a plea of nolo
contendere,
or its
equivalent, shall not in itself create a presumption that any such Person did
not act in good faith, for a purpose which he reasonably believed to be in,
or
not opposed to, the best interests of the Company, that he did not exercise
reasonable care in selecting an employee, independent contractor or agent,
that
an act or omission involved actual fraud or willful misconduct, or that he
had
reasonable cause to believe that his conduct was unlawful. The
Company’s indemnification obligations hereunder shall survive the termination of
the Company. Each indemnified Person shall have a claim against the net assets
of the Company for payment of any indemnity amounts from time to time due,
which
amounts shall be paid or properly reserved for prior to the making of
distributions by the Company to the Joint Venturers.
12
7.3 Contract
Right; Expenses.
The
right to indemnification conferred in this ARTICLE VII shall be a contract
right. The Company may advance the expenses incurred by the indemnified Person
in defending any such proceeding in advance of its final disposition,
provided such Person agrees to repay any amount that it is ultimately determined
such Person is not entitled to receive under this ARTICLE VII.
7.4 Indemnification
of Employees and Agents.
In
addition to the indemnification provided in Sections 7.2, the Company may grant
rights to indemnification and to advancement of expenses to any employee,
independent contractor or agent of the Company or to their officers, directors,
shareholders, partners, Joint Venturers, managers, employees, independent
contractors or agents, up to the extent provided to an indemnified Person
pursuant to Section 7.2.
7.5 Nonexclusive
Right.
The
right to indemnification and the payment of expenses incurred in defending
a
proceeding in advance of its final disposition conferred in this ARTICLE VII
shall not be exclusive of any other right which any Person may have or hereafter
acquire under any statute or agreement, or under any insurance policy obtained
for the benefit of any indemnified Person.
7.6 Severability.
If any
provision of this ARTICLE VII is determined to be unenforceable in whole or
in
part, such provision shall nonetheless be enforced to the fullest extent
permissible, it being the intent of this ARTICLE VII to provide indemnification
to all Persons eligible hereunder to the fullest extent permitted by applicable
law.
ARTICLE
VIII
JOINT
VENTURER REPRESENTATIONS
Each
Joint Venturer represents and warrants to the other Joint Venturers and the
Company as follows:
8.1 Authority.
The
Joint Venturer has the requisite power and authority to enter into this
Agreement. The execution and delivery of this Agreement and the consummation
of
the transactions contemplated hereby do not violate any other agreement to
which
the Joint Venturer is a party. This Agreement constitutes a valid and binding
agreement of the Joint Venturer, enforceable against the Joint Venturer in
accordance with its terms, except that (a) such enforcement may be subject
to
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other laws, whether now or hereafter in effect, relating to or limiting
creditors’ rights generally, and (b) enforcement of this Agreement may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefore may be brought.
13
8.2 Preexisting
Relationship or Experience.
By
reason of the Joint Venturer’s business or financial experience, or by reason of
the business or financial experience of the Joint Venturer’s financial advisor
who is unaffiliated with and who is not compensated, directly or indirectly,
by
the Company or any Affiliate or selling agent of the Company, the Joint Venturer
is capable of evaluating the risks and merits of an investment in his Interest
and of protecting the Joint Venturer’s own interests in connection with the
investment.
8.3 Access
to Information.
The
Joint Venturer has had an opportunity to review all documents, records and
books
pertaining to this investment and has been given the opportunity to consult
with
counsel of its choice with respect to all aspects of this investment and the
Company’s proposed business activities. To the extent desired, such Joint
Venturer has been provided with such information as may have been requested
and
has at all times been given the opportunity to obtain additional information
necessary to verify the accuracy of the information received and the opportunity
to ask questions of and receive answers concerning the terms and conditions
of
the investment and the nature and prospects of the Company’s
business.
8.4 Economic
Risk.
The
Joint Venturer is financially able to bear the economic risk of an investment
in
his Interest, including the total loss thereof.
8.5 Investment
Intent.
The
Joint Venturer is acquiring shares in the Company for investment purposes and
for the Joint Venturer’s own account only and not with a view to, or for sale in
connection with, any distribution of all or any part of such shares. Except
for
the shareholders, partners or Joint Venturers of the Joint Venturer, no other
Person will have any direct or indirect beneficial interest in, or right to,
such shares.
8.6 Consultation
with Attorney.
The
Joint Venturer has been advised to consult with his own attorney regarding
all
legal and tax matters concerning an investment in the Company, has had adequate
opportunity to do so, and has done so to the extent it considers necessary
or
advisable. The Joint Venturer acknowledges and agrees that it has not received
or relied on any legal or tax advice from the Company, their Affiliates or
any
of their representatives.
8.7 Conflict.
The
Joint Venturer acknowledges and understands that the interests of each Joint
Venturer may be different with respect to this Agreement. The Joint Venturer
waives any conflict of interest that may exist with respect to the preparation
of this Agreement.
14
ARTICLE
IX
REPRESENTATIONS,
WARRANTIES, COVENANTS AND AGREEMENTS REGARDING NEW CENTURY INTERNATIONAL
LIMITED
RAD
and
▇▇▇▇▇ ▇▇ jointly and severally hereby represent, warrant and covenant to Asia
Leader and the Company as of the date hereof and as of the Contribution Date
with the same force and effect as if made as of the Contribution Date as follows
(except in each instance as specifically disclosed in a corresponding Schedule
to this Agreement); provided, however, in respect of any event or change of
circumstance occurring during the period from the day following the date hereof
up to and including the Contribution Date, ▇▇▇▇▇ ▇▇ shall not be held liable
for
any misrepresentation of breach of warranty resulting from such event or
circumstance beyond the control of ▇▇▇▇▇ ▇▇, RAD or NCIL and such event or
circumstance was not contributed to by the default, negligence, failure to
take
prudent action of follow any request, notice or instruction of any Governmental
Authority, fraud or other wrongdoing of any kind by any of ▇▇▇▇▇ ▇▇, NCIL,
RAD
or any of their respective directors, officers, employees or
agents:
9.1 Organization
and Qualification.
NCIL
has been duly organized, validly existing and in good standing under the laws
of
the PRC, and has all requisite authority and power (corporate and other),
governmental licenses, authorizations, consents and approvals to carry on its
business as presently conducted and to own, hold and operate its properties
and
assets as now owned, held and operated, except where the failure to be so
organized, existing and in good standing or to have such authority and power,
governmental licenses, authorizations, consents or approvals would not have
a
Material Adverse Effect. All registered capital and other capital contributions
shall have been duly paid up in accordance with the relevant PRC regulations
and
requirements and all necessary capital verification reports have been duly
issued and not revoked.
9.2 Subsidiaries.
Except
as set forth on Schedule 9.2, NCIL does not own directly or indirectly, any
equity or other ownership interest in any corporation, partnership, joint
venture or other entity or enterprise.
9.3 Articles
of Association.
True,
correct and complete certified translated copies of the articles of association
and the business license of NCIL have been delivered to the Joint Venturers
prior to the execution of this Agreement, and no action has been taken to amend
or repeal such organizational documents. NCIL is not in violation or breach
of
any of the provisions of its organizational documents, except for such
violations or breaches as, would not have a Material Adverse
Effect.
9.4 Authority.
9.4.1 The
execution and delivery of this Agreement does not violate any other agreement
to
which ▇▇▇▇▇ ▇▇ is a party. This Agreement constitutes a valid and binding
agreement of ▇▇▇▇▇ ▇▇, enforceable against ▇▇▇▇▇ ▇▇ in accordance with its
terms, except that (a) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other laws,
whether now or hereafter in effect, relating to or limiting creditors’ rights
generally, and (b) enforcement may be subject to equitable defenses and to
the
discretion of the court before which any proceeding therefore may be
brought.
15
9.4.2 NCIL
has
the requisite power and authority to enter into those agreements attached as
exhibits to this Agreement to which it is a party (collectively, the
“NCIL
Agreements”).
The
execution and delivery of the NCIL Agreements and the consummation of the
transactions contemplated thereby do not violate any other agreement to which
NCIL is a party. Each NCIL Agreement constitutes a valid and binding agreement
of NCIL, enforceable against NCIL in accordance with its terms, except that
(a)
such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other laws, whether now or hereafter
in
effect, relating to or limiting creditors’ rights generally, and (b) enforcement
of such NCIL Agreement may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefore may be
brought.
9.5 No
Violation.
Neither
the execution nor the delivery of this Agreement or any Exhibit hereto, nor
the
consummation or performance of the transactions contemplated hereby or thereby
will, directly or indirectly, (provided that the representations and warranties
in paragraphs (b), (c) and (d) below are made by ▇▇▇▇▇ ▇▇ subject to the best
of
his knowledge after due inquiry) (a) contravene, conflict with, or result in
a
violation of any provision of the organizational documents of NCIL; (b)
contravene, conflict with, constitute a default (or an event or condition which,
with notice or lapse of time or both, would constitute a default) under, or
result in the termination or acceleration of, or result in the imposition or
creation of any lien under, any agreement or instrument to which NCIL is a
party
or by which the properties or assets of NCIL are bound; (c) contravene, conflict
with, or result in a violation of, any law or order to which NCIL, or any of
the
properties or assets owned or used by NCIL, may be subject; or (d) contravene,
conflict with, or result in a violation of, the terms or requirements of, or
give any governmental authority the right to revoke, withdraw, suspend, cancel,
terminate or modify, any licenses, permits, authorizations, approvals,
franchises or other rights held by the NCIL or that otherwise relate to the
business of, or any of the properties or assets owned or used by, NCIL, except,
in the case of clause (b), (c), or (d), for any such contraventions, conflicts,
violations, or other occurrences as would not have a Material Adverse Effect.
9.6 Capitalization
of NCIL.
The
capitalization of NCIL is set forth on Schedule 9.5. There are no other
outstanding shares of capital stock or voting securities and no outstanding
commitments to issue any shares of capital stock or voting securities after
the
date hereof. The total equity interest of NCIL set forth on such schedule have
been duly authorized, validly issued, fully paid and non-assessable, are free
of
any liens or encumbrances other than any liens or encumbrances created by or
imposed upon the holders thereof, and are not subject to preemptive rights
or
rights of first refusal created by statute, their respective organizational
documents or any agreement to which NCIL is a party or by which it is bound
(except as contemplated by Exhibit G hereto), and such shares constitute all
of
the issued and outstanding capital stock of NCIL. The owners of the equity
interest of NCIL named in Schedule 9.5 own, and have good, valid and marketable
title to, all the equity interest of NCIL. There are no outstanding or
authorized options, warrants, purchase agreements, participation agreements,
subscription rights, conversion rights, exchange rights or other securities
or
contracts with respect to the equity of NCIL. There are no outstanding
stockholders’ agreements, voting trusts or arrangements, rights of first refusal
or other contracts pertaining to the equity of NCIL. None of the outstanding
equity interests of NCIL has been issued in violation of any rights of any
Person or in violation of any law. There are no outstanding contractual
obligations (contingent or otherwise) of the Company to retire, repurchase,
redeem or otherwise acquire any of its equity of, or other ownership interests
in, the Company or to provide funds to or make any investment (in the form
of a
loan, capital contribution or otherwise) in any other Person.
16
9.7 Compliance
with Laws and Other Instruments.
Except
as would not have a Material Adverse Effect, the business and operations of
NCIL
have been and are being conducted in accordance with all applicable laws and
orders, provided that such representation and warranty in this Section 9.7
is
made by ▇▇▇▇▇ ▇▇ subject to the best of his knowledge after due inquiry. Except
as would not have a Material Adverse Effect, NCIL has not received notice of
any
violation (or any proceeding involving an allegation of any violation) of any
applicable law or order by or affecting NCIL and, to the knowledge of the NCIL,
no proceeding involving an allegation of violation of any applicable law or
order is threatened or contemplated.
9.8 Filings,
Consents and Approvals.
NCIL is
not required to obtain any consent, waiver, authorization or order of, give
any
notice to, or make any filing or registration with, any court or other federal,
state, local or other governmental authority or other Person in connection
with
the execution, delivery and performance of this Agreement by the Joint Venturers
or any Exhibit hereto.
9.9 Regulatory
Permits.
NCIL
possesses or has applied for all certificates, authorizations and permits issued
by the appropriate central, provincial, local or foreign regulatory authorities
necessary to conduct its business and to perform its obligations under the
NCIL
Agreements, except where the failure to possess such permits would not,
individually or in the aggregate, have a Material Adverse Effect (“Material
Permits”),
and
NCIL has not received any notice of proceedings relating to the revocation
or
modification of any Material Permit.
9.10 Compliance
with PRC Anti-Corruption Laws.
None of NCIL, its Affiliates and their respective directors, officers,
employees, representatives or agents has violated any applicable PRC laws that
prohibit directly or indirectly making any payment (including any kick-back
or
commission) or giving any other thing of value (including fee, gift, travel
expense or entertainment) to any person who is an official, officer, agent,
employee or representative of any governmental authority or any existing or
prospective customer (whether or not government-owned) in order to gain any
business, commercial or financial advantage or benefit; provided that such
representation and warranty in this Section 9.10 is made by ▇▇▇▇▇ ▇▇ subject
to
the best of his knowledge after due inquiry..
9.11 Patents
and Trademarks.
NCIL
either owns, free and clear of all liens and encumbrances, or have rights to
use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, copyrights, domain names, software databases,
computer programs, licenses and other similar rights that are necessary or
material for use in connection with its business and which the failure to so
own
or have such rights could reasonably be expected to result in a Material Adverse
Effect (collectively, the “Intellectual Property Rights”). NCIL has not (i)
received any notice or other claim, written or oral, that the Intellectual
Property Rights owned or used by NCIL violate or infringe upon the rights of
any
Person, or (ii) received any invitation to license any intellectual property
rights of any Person in order to avoid such a violation or infringement. To
the
knowledge of NCIL, there is no existing infringement of any of the Intellectual
Property Rights by any Person. NCIL has taken reasonable measures to protect
and
preserve its Intellectual Property Rights, including maintaining the secrecy
and
confidentiality of its trade secrets.
17
9.12 Litigation.
Except
as set forth on Schedule 9.12, there is no action, suit, inquiry, notice of
violation, proceeding or investigation pending or, to the best knowledge of
RAD
or ▇▇▇▇▇ ▇▇ after due inquiry, threatened against or affecting the NCIL or
its
properties or business before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state, county, local
or
foreign) (collectively, an “Action”) which: (i) adversely affects or challenges
the legality, validity or enforceability of this Agreement or any Exhibit hereto
or (ii) could, if there were an unfavorable decision, individually or in the
aggregate, have or reasonably be expected to result in a Material Adverse Effect
on the business and operations of NCIL.
9.13 Taxes.
For
purposes of this Agreement, the following terms have the following meanings:
“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means (i) any net
income, alternative or add-on minimum tax, gross income, gross receipts, sales,
use, ad valorem, transfer, franchise, profits, license, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, property,
environmental or windfall profit tax, custom, duty or other tax, governmental
fee or other like assessment or charge of any kind whatsoever, together with
any
interest or any penalty, addition to tax or additional amount imposed by any
governmental entity (a “Tax authority”) responsible for the imposition of any
such tax (domestic or foreign); (ii) any liability for the payment of any
amounts of the type described in (i) as a result of being a member of an
affiliated, consolidated, combined or unitary group for any Taxable period;
and
(iii) any liability for the payment of any amounts of the type described in
(i)
or (ii) as a result of being a transferee of or successor to any person, as
a
result of any express or implied obligation to indemnify any other person,
including pursuant to any Tax sharing or Tax allocation agreement, as a result
of being a responsible person, or otherwise. “Tax Return” means any return,
statement, report or form (including, without limitation, claims for refunds
or
credits, estimated Tax returns and reports, withholding Tax returns and reports
and information reports and returns) filed or required to be filed with respect
to Taxes.
(a)
all
Tax Returns required to be filed by or on behalf of NCIL and its subsidiaries
have been timely filed and all Tax Returns filed by or on behalf of NCIL and
its
subsidiaries were (at the time they were filed) and are true, correct and
complete in all respects; (b) all Taxes of NCIL and its subsidiaries (whether
or
not reflected on any Tax Return) have been fully and timely paid, (c) no waivers
or extensions of statutes of limitation have been given or requested with
respect to NCIL or its subsidiaries in connection with any Tax Returns or with
respect to any Taxes payable by it; (d) no governmental entity in a jurisdiction
where NCIL or its subsidiaries do not file Tax Returns has made a claim,
assertion or threat to NCIL or its subsidiaries s that it is or may be subject
to taxation by such jurisdiction; (e) each of NCIL and its subsidiaries has
duly
and timely collected or withheld, and paid over and reported to the appropriate
governmental entity all amounts required to be so collected or withheld and
paid
over for all periods under all applicable laws; (f) there are no liens with
respect to Taxes on NCIL or its subsidiaries or any of their property or assets;
(g) there are no Tax rulings, requests for rulings, or closing agreements
relating to NCIL or its subsidiaries for any period (or portion of a period)
that would affect any period after the date hereof; and (h) any adjustment
of
Taxes of NCIL or its subsidiaries made by a governmental entity in any
examination that NCIL or its subsidiaries is required to report to the
appropriate Tax Authority has been reported, and any additional Taxes due with
respect thereto have been paid.
18
(b)
there
is no pending proceeding with respect to any Taxes of NCIL or its subsidiaries,
nor, to the knowledge of RAD and ▇▇▇▇▇ ▇▇, is any such proceeding threatened.
NCIL has made available to the Company prior to the date of this Agreement,
true, correct and complete copies of all Tax Returns, examination reports and
statements of deficiencies assessed or asserted against or agreed to by NCIL
or
its subsidiaries since their inception and any and all correspondence with
respect to the foregoing.
9.14 Indemnification.
RAD and
▇▇▇▇▇ ▇▇ hereby jointly and severally agree to indemnify and hold the Company
and Asia Leader harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments,
amounts paid in settlements, court costs and reasonable attorneys’ fees and
costs of investigation that any such party may suffer or incur as a result
of or
relating to (i) any breach of any of the representations, warranties, covenants
or agreements made by RAD or ▇▇▇▇▇ ▇▇ in this Agreement or (ii) any action
instituted against the Company, or Asia Leader or their respective Affiliates,
with respect to any of the transactions contemplated by this Agreement or any
Exhibit hereto if such action is based upon a breach of the representation,
warranties or covenants by RAD or ▇▇▇▇▇ ▇▇ under this Agreement. If any action
shall be brought against any such party in respect of which indemnity may be
sought pursuant to this Section 9.11, such party shall promptly notify RAD
and
▇▇▇▇▇ ▇▇ in writing, and they shall have the right to assume the defense thereof
with counsel of their own choosing. Any such party shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense
of
such party except to the extent that (A) the employment thereof has been
specifically authorized by RAD and ▇▇▇▇▇ ▇▇ in writing; or (B) RAD and ▇▇▇▇▇
▇▇
have failed after a reasonable period of time to assume such defense and to
employ counsel. Notwithstanding any other provision of this Agreement to the
contrary, any of representations, warranties, covenants or agreement made by
RAD
or ▇▇▇▇▇ ▇▇ in this Agreement and the indemnities given by RAD and ▇▇▇▇▇ ▇▇
pursuant to this Section 9.14 shall survive until the second anniversary of
the
Contribution Date and the maximum liability of RAD and ▇▇▇▇▇ ▇▇ shall not exceed
US$31,800,000; provided, however, the making of such representations,
warranties, covenants and agreements shall be subject to Asia Leader making
its
Capital Contribution on the Contribution Date.
19
9.15 Access
to Information.
RAD and
Kevsubject to in Ma shall arrange for Asia Leader to have an opportunity to
review all documents, records and books pertaining to NCIL and NCIL’s business
activities and to ask questions of and receive answers concerning the business
and operations of NCIL as it shall determine, upon reasonable advance notice
and
during ordinary business hours.
ARTICLE
X
MISCELLANEOUS
10.1 Amendments.
Except
as otherwise provided herein, no amendment, supplement, modification or
restatement to this Agreement shall be valid or effective unless in writing
and
authorized by both Joint Venturers.
10.2 Offset
Privilege.
The
Company may offset against any monetary obligation owing from the Company to
any
Joint Venturer any monetary obligation then owing from that Joint Venturer
to
the Company.
10.3 Confidentiality.
Except
in connection with any dispute between the parties and subject to any obligation
to comply with (i) any applicable law, (ii) any rule or regulation of any
governmental entity or securities exchange, or (iii) any subpoena or other
legal
process to make information available to the persons entitled thereto, whether
or not the transactions contemplated herein shall be concluded, all information
obtained by any party about any other, and all of the terms and conditions
of
this Agreement, shall be kept in confidence by each party, and each party shall
cause its stockholders, directors, officers, managers, employees, agents and
attorneys to hold such information confidential. Such confidentiality shall
be
maintained to the same degree
as
such party maintains its own confidential information and shall be maintained
until such time, if any, as any such data or information either is, or becomes,
published or a matter of public knowledge; provided, however, that the foregoing
shall not apply to any information obtained by a party through its own
independent investigations of the other party or received by a party from a
source not known by such party to be bound by a confidentiality agreement with,
or other contractual, legal or fiduciary obligation of confidentiality to,
the
other party, nor to any information obtained by a party which is generally
known
to others engaged in the trade or business of such party. In the event a party
to this Agreement becomes legally compelled to disclose any such information,
it
shall promptly provide the others with written notice of such requirement so
that the other parties to this Agreement may seek a protective order or other
remedy. If this Agreement shall be terminated for any reason, the parties shall
return or cause to be returned to the others all written data, information,
files, records and copies of documents, worksheets and other materials obtained
by such parties in connection with this Agreement.
20
10.4 Public
Announcements.
No
party to this Agreement shall make, or cause to be made, any press release
or
public announcement in respect of this Agreement or the transactions
contemplated hereby or otherwise communicate with any news media without the
prior written consent of the other party, and the parties shall cooperate as
to
the timing and contents of any such press release or public announcement;
provided, however, in the event an agreement for the acquisition of Asia Leader
is signed, the acquirer of Asia Leader shall be entitled to make such press
releases, public announcements and other public disclosures of this Agreement
and the transactions contemplated hereby as deemed appropriate by such acquirer.
10.5 Notices.
Any
notice or other communication (collectively, “notice”) to be given to the
Company or either Joint Venturer in connection with this Agreement shall be
in
writing and will be deemed to have been given and received (a) on the date
delivered if by courier or other means of personal delivery, (b) on the date
sent by telecopy with automatic confirmation by the transmitting machine showing
the proper number of pages were transmitted without error, (c) on the next
Business Day after being sent by a internationally recognized overnight mail
service in time for and specifying next day or next Business Day delivery,
or
(d) on the fifth (5th)
day
after mailing by international certified or registered mail, in each case
postage prepaid and with any other costs necessary for delivery paid by the
sender. Any such notice must be given, if to the Company, to the Company at
its
principal place of business, and if to any Joint Venturer, to such Joint
Venturer at the address specified on Schedule A. Any party may by notice
pursuant to this Section 10.5 designate another address as the new address
to
which notice must be given.
10.6 Fees
and Expenses.
Each
party shall bear his own fees and expenses in connection with this transaction;
provided,
however,
that
the fees and expenses of Loeb & Loeb LLP in connection with the preparation
of this Agreement and any related documents shall be borne by the
Company.
If the
cash Capital Contributions to be made by Asia Leader set forth in Section 3.1.1
is not made prior to April 30, 2008, then RAD shall be entitled to receive
a
non-performance fee of US$350,000, provided however that no such fee shall
be
paid in the event: (i) RAD, ▇▇▇▇▇ ▇▇ or any of its or his Affiliates or Asia
Leader failing to fulfill the Conditions to Obligations of Asia Leader set
forth
in Section 3.4.1or taking any action that would adversely affect the timely
completion of such transactions; (ii) any material breach hereof the RAD or
▇▇▇▇▇ ▇▇, including the failure to deliver the legal opinions set forth in
Section 4.41(f); (iii) any material breach by ▇▇▇▇▇▇▇ ▇▇ of the Stock Purchase
Agreement (the “Stock Purchase Agreement”) between Shanghai Century Acquisition
Corporation (“Shanghai Century”) and ▇▇▇▇▇▇▇ ▇▇; (iv) an event of force
majeure, including
any circumstances beyond the control of the parties, including without
limitation, existing or future law or regulation, any existing or future act
of
governmental authority, act of God, flood, war whether declared or undeclared,
terrorism, riot, rebellion, civil commotion, strike, lockout, other industrial
action, general failure of electricity or other supply, aircraft collision,
technical failure, accidental or mechanical or electrical breakdown, computer
failure or failure of any money transmission system; (v) any change in law
or
imposition of any requirement of any regulatory approval in the People’s
Republic of China for the consummation of the Stock Purchase Agreement, the
Company engaging in the Business or NCIL’s execution, delivery and
implementation of the NCIL Agreements; (vi) any
event or
events have occurred, or information has become known or any condition exist
that could, individually or in the aggregate, a Material Adverse Effect on
(A)
the proposed properties, business, operations, assets, liabilities or condition
(financial or otherwise) of the Company, taken as a whole, (B) the ability
of
any of the parties hereto to perform their respective obligations hereunder
or
under the Stock Purchase Agreement, (C) the validity or enforceability of any
of
this Agreement, the Stock Purchase Agreement or any of the NCIL Agreements,
(D)
the
business of NCIL
or
its ability to perform its obligations under any of the NCIL
Agreements
or (E)
the leasing market in the PRC; or (viii) the
results of Asia Leader’s business, legal and financial due diligence of NCIL or
RAD shall reveal any undisclosed material fact or circumstance that would have
a
Material Adverse Effect regarding the proposed Business of the Company or the
ability of RAD or ▇▇▇▇▇ ▇▇ to perform its or his obligations
hereunder.
21
10.7 Waiver.
No
course of dealing or omission or delay on the part of any party hereto in
asserting or exercising any right hereunder shall constitute or operate as
a
waiver of any such right. No waiver of any provision hereof shall be effective,
unless in writing and signed by or on behalf of the party granting the waiver.
No waiver shall be deemed a continuing waiver or waiver in respect of any other
or subsequent breach or default, unless expressly so stated in
writing.
10.8 Governing
Law.
This
Agreement shall be governed by, construed, interpreted and enforced in
accordance with the laws of the State of New York, without giving effect to
any
principles of conflicts of law that would result in the application of the
substantive law of any other jurisdiction.
10.9 Remedies.
Notwithstanding the foregoing, in the event of any actual or prospective breach
or default by any party, the other parties shall be entitled to equitable
relief, including remedies in the nature of injunction and specific performance
(without being required to post a bond or other security or to establish any
actual damages). In this regard, the parties acknowledge and agree that they
will be irreparably damaged in the event this Agreement is not specifically
enforced, since (among other things) the Interests are not readily
marketable.
In
addition, the parties hereby waive and renounce any defense to such equitable
relief that an adequate remedy at law may exist.
10.10 Jurisdiction
of Disputes.
Any
dispute arising out of or in connection with this Agreement shall be finally
settled under the Rules of the Hong Kong International Arbitration Centre (the
“Arbitration Centre”) by three (3) arbitrators appointed as follows: one (1)
arbitrator shall be appointed by RAD, one (1) arbitrator shall be appointed
by
Asia Leader, and the third arbitrator shall be appointed by the two arbitrators
appointed by RAD and Asia Leader. If such two arbitrators fail to appoint such
third arbitrator within a period of thirty (30) days, then such third arbitrator
shall be appointed by the chairman of the Arbitration Centre. The place of
arbitration shall be in Hong Kong. The arbitration shall be conducted in
English. The arbitration awards shall be final and binding upon the
parties.
The
costs of the arbitration proceeding and any proceeding in court to confirm
or to
vacate any arbitration award, as applicable (including each party’s attorneys’
fees and costs), shall be borne by the unsuccessful party or, at the discretion
of the arbitrators, may be prorated between the parties in such proportion
as
the arbitrator determines to be equitable and shall be awarded as part of the
arbitrators’ award.
22
10.11 Severability.
The
provisions hereof are severable and in the event that any provision of this
Agreement shall be determined to be illegal, invalid or unenforceable in any
respect by a court of competent jurisdiction, the remaining provisions hereof
shall not be affected, but shall, subject to the discretion of such court,
remain in full force and effect, and any illegal, invalid or unenforceable
provision shall be deemed, without further action on the part of the parties
hereto, amended and limited to the extent necessary to render such provision,
as
so amended and limited, legal, valid and enforceable, it being the intention
of
the parties that this Agreement and each provision hereof shall be legal, valid
and enforceable to the fullest extent permitted by applicable law.
10.12 Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
agreement.
10.13 Further
Assurances.
Each
party hereto shall promptly execute, deliver, file or record such agreements,
instruments, certificates and other documents and take such other actions as
the
Company may reasonably request or as may otherwise be necessary or proper to
carry out the terms and provisions of this Agreement and to consummate and
perfect the transactions contemplated hereby. Failure to comply with this
Section 10.13 shall be considered a breach of a material provision.
10.14 Assignment.
Except
as otherwise provided herein, this Agreement, and any right, interest or
obligation hereunder, may not be assigned by any party hereto without the prior
written consent of each other party hereto. Any purported assignment without
such consent shall be null and void ab
initio
and
without effect.
10.15 Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective legal representatives, successors and permitted
assigns.
10.16 No
Third Party Beneficiary.
This
Agreement is not intended, and shall not be deemed, to create or confer any
right or interest for the benefit of any Person not a party hereto.
10.17 Titles
and Captions.
The
titles and captions of the Articles, Sections and Exhibits of this Agreement
are
for convenience of reference only and do not in any way define or interpret
the
intent of the parties or modify or otherwise affect any of the provisions hereof
and shall not have any affect on the construction or interpretation of this
Agreement.
10.18 Construction.
This
Agreement shall not be construed against any party by reason of such party
having caused this Agreement to be drafted.
23
10.19 Usage.
References in this Agreement to “Articles,” “Sections,” “Schedules” and
“Exhibits” shall
be
to the Articles, Sections, Schedules and Exhibits of
this
Agreement, unless otherwise specifically provided; all Schedules and
Exhibits are
incorporated herein by reference; any use in this Agreement of the singular
or
plural, or to the masculine, feminine or neuter gender, shall be deemed to
include the others, unless the context otherwise requires; the words “herein,”
“hereof” and “hereunder” and words of similar import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; the words “include,” “includes” and “including” and
words of similar import when
used
in this Agreement shall be deemed to be followed by the phrase “without
limitation;” the words “or,” “either” and “any” shall not be exclusive; any
reference in this Agreement to a “day” (without explicit qualification as a
Business Day) shall be interpreted as referring to a calendar day; if any action
is required to be taken or notice is required to be given on or by a particular
day, and such day is not a Business Day, then such action or notice shall be
considered timely if it is taken or given on or before the next Business Day;
each of the words “property” and “assets” includes property and assets of any
kind, whether real or personal, tangible or intangible; except as otherwise
specified in this Agreement, all references in this Agreement to any
agreement, document, certificate or other written instrument shall be a
reference to such agreement, document, certificate or instrument, in each case
together with all exhibits, schedules, attachments and appendices thereto,
and
as amended, supplemented, restated, or otherwise modified from time to time
in
accordance with the terms thereof; and except as otherwise specified in this
Agreement, all references in this Agreement to any law, statute or
regulation shall be references to such law, statute or regulation as the same
may be supplemented, amended, consolidated, superseded or modified from time
to
time.
10.20 Entire
Agreement.
This
Agreement together with the Exhibits attached hereto constitute the entire
understanding and agreement among the parties hereto with respect to the subject
matter hereof and supersedes all prior and contemporaneous understandings and
agreements relating thereto (written or oral), all of which are merged
herein.
24
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, effective
as
of the date first written above.
|
ASIA
LEADER INVESTMENTS LIMITED
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇ | |
|
Name:
|
▇▇▇▇▇▇▇
▇▇
|
|
|
Title:
|
Director
|
|
|
|
||
|
RAD
INTERNATIONAL INVESTMENT FUND LTD.
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇▇ | |
|
Name:
|
▇▇▇▇▇
▇▇
|
|
|
Title:
|
Director |
|
|
|
||
Only
with
respect to the representations, warranties, covenants and agreements set forth
in Article IX hereto:
| /s/ ▇▇▇▇▇ ▇▇ | |||
|
▇▇▇▇▇
▇▇
|
25
SCHEDULE
A
NAMES,
ADDRESSES, CAPITAL CONTRIBUTIONS, AND
PERCENTAGES
OF THE JOINT VENTURERS
AS
OF FEBRUARY 20, 2008
|
Name,
address and facsimile number
|
Capital
Contribution
|
Percentage
|
||
|
Asia
Leader Investments Limited
Room
1101, 11/F China Insurance Group ▇▇▇▇▇▇▇▇,
▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇
Fax:
(▇▇▇) ▇▇▇▇-▇▇▇▇
|
Up
to $70,000,000 subject to Section 3.1.2
|
67%
|
||
|
RAD
International Investments Company Limited
Sassoon
House
▇▇▇▇▇▇▇
Street and Victoria Avenue
City
of Nassau
P.O.
Box N-272
Nassau,
Bahamas
Fax:
(8610) ▇▇▇▇-▇▇▇▇
|
Agreements
and obligations set forth in Section 3.1.1.
|
33%
________
|
||
|
100%
|
SCHEDULE
9.2
(1)
|
JV
Name:
|
中税ø北京÷狞务枂樒有榰公司
|
|
|
Location:
|
Beijing
|
|
|
Percentage
Shareholding:
|
中税务代理有榰公司
60%
|
|
|
新世纪国榻租犿有榰公司
40%
|
||
|
Nature
of Business:
|
Tax
related consulting leveraging leasing structures
|
|
|
Incorporation:
|
Q4
2007
|
|
|
Registered
Capital:
|
▇▇▇
▇▇
|
|
|
▇▇▇▇:
|
10
years
|
(2)
|
JV
Name:
|
|
中汽乾坤世纪汽炚租犿北京有榰公司
|
|
|
Location:
|
Beijing
|
||
|
Percentage
Shareholding:
|
Han
▇▇▇▇ ▇▇▇▇
|
39%
|
|
|
Ding
Tao
|
10%
|
||
|
新世纪国榻租犿有榰公司
|
51%
|
||
|
Nature
of Business:
|
Car
Leasing
|
||
|
Incorporation:
|
Q4
2007
|
||
|
Registered
Capital:
|
▇▇▇
▇▇
|
||
|
▇▇▇▇:
|
20
years
|
2
SCHEDULE
9.12
(1)
|
Plaintiff:
|
New
Century International Leasing Company Limited
|
|
|
Date
and Jurisdiction filed:
|
October
2004, Beijing
|
|
|
Defendant:
|
广州市白云区琴星小学
|
|
|
Contract
Number:
|
2003NCLC7134B2
|
|
|
Amount
Claimed:
|
RMB
2.2m
|
|
|
Outcome:
|
l
Court
awarded NCIL RMB 2.2m.
|
|
|
l NCIL
worked out a repayment plan for RMB 2.2m in place (RMB 800k paid
up, RMB
1.4m outstanding)
|
(2)
|
Plaintiff:
|
New
Century International Leasing Company Limited
|
|
|
Defendant:
|
上海羦友宽杯网络投犼有榰公司
|
|
|
Date
and Jurisdiction filed:
|
November
2006, Beijing
|
|
|
Contract
Number:
|
2004NCLC8037
|
|
|
Amount
Claimed:
|
RMB
2.7m
|
|
|
Outcome:
|
l Court
awarded NCIL RMB 2.7m
|
|
|
l Repayment
Plan for RMB 2.15m in place (RMB 60k paid up, RMB 2.09m
outstanding)
|
3
EXHIBIT
A
FORM
OF
EXCLUSIVE
COOPERATION AGREEMENT
[to
be inserted]
4
EXHIBIT
B
FORMS
OF
ATM
FRAMEWORK CONTRACT
AUTOMOBILE
FRAMEWORK CONTRACT
WINDMILL
FRAMEWORK CONTRACT
[to
be inserted]
5
EXHIBIT
C
FORMS
OF
ATM
TRUST LEASE CONTRACT
AUTOMOBILE
TRUST LEASE CONTRACT
WINDMILL
TRUST LEASE CONTRAC
[to
be inserted]
6
EXHIBIT
D
FORMS
OF
ATM
LEASE CONTRACT
AUTOMOBILE
LEASE CONTRACT
WINDMILL
LEASE CONRACT
[to
be inserted]
7
EXHIBIT
E
FORMS
OF
ATM
SUPPLY CONTRACT
AUTOMOBILE
SUPPLY CONTRACT
WINDMILL
SUPPLY CONTRACT
[to
be inserted]
8
EXHIBIT
F
FORM
OF
ARRANGER
AGREEMENTS
[to
be inserted]
9
EXHIBIT
G
RIGHT
OF FIRST REFUSAL AGREEMENT
10