PROXY AND VOTING AGREEMENT (English Translation)
(English
Translation)
This
Proxy and Voting Agreement (the “Agreement”) is entered into as of August
25, 2006 among the following partiesæ
Party
A:
|
Shiming
(Xi’an) Enterprise Management Consulting Co., Ltd.
Registered
Address:
▇▇.
▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ Security Plaza,
Xi’an
High Tech and New Technology Development Zone,
Xi’an,
Shaanxi Province, China 710075,
Legal
Representative: ▇▇▇▇▇▇▇ ▇▇▇▇
|
Party
B: The
undersigned shareholders of Shiming Science & Technology Joint Stock Co.,
Ltd., a corporation incorporated under the laws of the People’s Republic of
China (“Shiming Company”).
In
this
Agreement, Party A and Party B are called collectively the “Parties” and each of
them is individually called a “Party.”
WHEREAS:
A.
Party
A
is a company incorporated in Xi’an, China under the laws of the People’s
Republic of China, which has the technological expertise in development and
sales of consumer electronics.
B.
As
of the
date of the Agreement Party B is comprised of holders of substantially all
of
the issued and outstanding shares of Shiming Company, and each member of Party
B
legally holds the equity interest in Shiming Company set forth opposite Party
B’s name in Annex 1. The total shares held by Party B collectively are over 95%
of total outstanding shares of Shiming Company.
C.
Party
B
desires to grant to the Board of Directors of Party A a proxy to vote all of
Party B’s shares in Shiming Company for the maximum period of time permitted by
law in consideration of the issuance to Party B of shares of the Cayman Company
and for other good and valuable consideration.
NOW
THEREFORE, the Parties hereby have reached the following agreement upon friendly
consultations:
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| 1. |
Party
B hereby agrees to irrevocably entrust Party A for the maximum period
permitted by law, with all of Party B’s voting rights as a shareholder of
Shiming Company. Party A shall exercise such rights in accordance
with the
laws of the PRC and the Articles of Association of Shiming
Company.
|
| 2. |
Party
A may from time to time establish and amend rules to govern how Party
A
shall exercise the powers granted to it by Party B herein, including,
but
not limited to, the number or percentage of directors of Party A
which
shall be required to authorize or take any action and to sign documents
evidencing the taking of such action, and Party A shall only take
action
in accordance with such rules.
|
| 3. |
All
Parties to this Agreement hereby acknowledge that, regardless of
any
change in the equity interests of Shiming Company, Party B shall
appoint
the person designated by Party A with all shareholder’s voting rights.
Party B shall not transfer its equity interests of Shiming Company
to any
individual or company (other than Party A or the individuals or entities
designated by Party A). Party B acknowledges that it will continue
to
perform this Agreement even if one or more than one of them do not
hold
the equity interests of Shiming
Company.
|
| 4. |
This
Agreement has been duly executed by the Parties, and, in the case
of a
Party which is not a natural person, has been duly authorized by
all
necessary corporate or other action by such Party and executed and
delivered by such Party’s duly authorized representatives, as of the date
first set forth above and shall be effective
simultaneously.
|
| 5. |
Party
B represents and warrants to Party A that Party B owns all of the
shares
of Shiming Company set forth below its name in Annex 1 and on the
signature pages below, free and clear of all liens and encumbrances
and
Party B has not granted to anyone, other than Party A, a power of
attorney
or proxy over any of such shares or in Party B’s rights as a shareholder
of Shiming Company and the execution and delivery of this Agreement
by
Party B will not violate any law, regulations, judicial or administrative
order, arbitration award, agreement, contract or covenant applicable
to
Party B.
|
| 6. |
This
Agreement may not be terminated without the unanimous consent of
both
Parties, except that Party A may, by giving thirty (30) days prior
written
notice to Party B hereto, terminate this
Agreement.
|
| 7. |
Any
amendment and/or rescission shall be agreed by the Parties in
writing.
|
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| 8. |
The
execution, validity, construction and performance of this Agreement
shall
be governed by the laws of PRC.
|
| 9. |
This
Agreement is executed in Chinese and English in twelve (12) copies;
Party
A and each member of Party B holds one and each original copy has
the same
legal effect. This Agreement has both an English version and a Chinese
version. Both versions are equally authentic. Where a comparison
of the
authentic texts of both versions of this Agreement discloses a difference
in meaning, the meaning which best reconciles the texts, having regard
to
the object and purpose of this Agreement shall be
adopted.
|
| 10. |
Both
Parties agree that in case of disputes arising from this Agreement,
both
Parties shall settle their dispute through mediation, not in a lawsuit
brought in Court. If the Parties cannot reach a settlement 45 days
after
the mediation, the dispute shall be referred to and determined by
arbitration in the China International Economic and Trade Arbitration
Commission (“CIETAC”) upon the initiation of either Party in accordance
with the prevailing arbitration rules of CIETAC. The written decision
of
the arbitrator shall be binding and conclusive on the Parties hereto
and
enforceable in any court of competent
jurisdiction.
|
| Party A: | ||
| Shiming (Xi’an) Enterprise Management Consulting Co., Ltd. | ||
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | ||
|
▇▇▇▇▇▇▇
▇▇▇▇
|
||
|
Title:
Chairman
|
||
| Party B: | ||
| Shaanxi Meixian Shiming Non-Ferrous Metallurgy Co., Ltd. (“Meixian”) | ||
| Shares of Shiming Company owned by Meixian 38000000 | ||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | ||
| Chairman | ||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | ||
|
▇▇▇▇▇▇▇
▇▇▇▇ (PRC ID Card No.: 610326570221061)
|
||
|
Shares
of Shiming Company owned by ▇▇▇▇▇▇▇ ▇▇▇▇:
12900000
|
||
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| /s/ Nairang Liu | ||
|
Nairang
Liu (PRC ID Card No.: 610326631127043)
|
||
|
Shares
of Shiming Company owned by Nairang Liu:
3470000
|
||
| /s/ Liehua Wang | ||
|
Liehua
Wang (PRC ID Card No.: 610421541129002)
|
||
|
Shares
of Shiming Company owned by Liehua Wang:
3408800
|
||
| /s/ Genyun Qu | ||
|
Genyun
Qu (PRC ID Card No.: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇)
|
||
|
Shares
of Shiming Company owned by Genyun Qu:
2930000
|
||
| /s/ ▇▇▇ ▇▇▇▇ | ||
|
▇▇▇
▇▇▇▇ (PRC ID Card No.: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇)
|
||
|
Shares
of Shiming Company owned by ▇▇▇ ▇▇▇▇:
2720000
|
||
| /s/ ▇▇▇▇▇▇ ▇▇ | ||
|
▇▇▇▇▇▇
▇▇ (PRC ID Card No.: 610102621205358)
|
||
|
Shares
of Shiming Company owned by ▇▇▇▇▇▇ ▇▇:
435000
|
||
| /s/ ▇▇▇ ▇▇▇ | ||
|
▇▇▇
▇▇▇ (PRC ID Card No.: 51012619720106140X)
|
||
|
Shares
of Shiming Company owned by ▇▇▇ ▇▇▇:
435000
|
||
| /s/ Cunhu Yang | ||
|
Cunhu
Yang (PRC ID Card No.: 610104196210016177)
|
||
|
Shares
of Shiming Company owned by Cunhu Yang:
362400
|
||
| /s/ ▇▇▇▇▇▇ ▇▇▇ | ||
|
▇▇▇▇▇▇
▇▇▇ (PRC ID Card No.: 610124510805001)
|
||
|
Shares
of Shiming Company owned by ▇▇▇▇▇▇ ▇▇▇:
271800
|
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| Attorney-in-fact for certain shareholders of Party B: | ||
| Shiming (Xi’an) Enterprise Management & Consulting Co., Ltd. | ||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | ||
| By: ▇▇▇▇▇▇▇ ▇▇▇▇ | ||
| As attorney-in-fact pursuant to that certain Power of Attorney, Shareholders’ Voting Rights, Proxy Agreement and Covenant Not to ▇▇▇ dated January 15, 2006 |
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