EXHIBIT 4.28
[Translated from Chinese Original]
PURCHASE OPTION AGREEMENT
among
FORTUNE SOFTWARE (BEIJING) CO., LTD.
▇▇▇▇▇ ▇▇▇
▇▇▇ ZHENFEI
and
BEIJING PREMIUM TECHNOLOGY CO., LTD.
August, 2007
BEIJING, CHINA
PURCHASE OPTION AGREEMENT
This Purchase Option Agreement ("this Agreement") is entered into in Beijing,
People's Republic of China (the "PRC") on this August 21, 2007 by and among:
Party A: Fortune Software (Beijing) Co. Ltd.
Address: ▇▇▇▇ ▇▇▇, Beijing Hangtian Jingmi Mansion, ▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, the People's Republic of China (the "PRC")
Postal code: 100080
Party B: ▇▇▇▇▇ ▇▇▇
Address: 9/F., Tower C, Corporation Mansion, ▇▇.▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, the PRC
ID No.: 610113197206201645
Party C: Fan Zhenfei
Address: 9/F., Tower C, Corporation Mansion, ▇▇.▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the PRC
ID No.: 370282197711186915
Party D: Beijing Premium Technology Co., Ltd.
Address: ▇▇▇▇ ▇▇▇, Beijing Hangtian Jingmi Mansion, ▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Postal code: 100080
Party A, Party B, Party C and Party D will each be referred to as a "Party" and
collectively referred to as the "Parties.
WHEREAS,
(1) Party D is a company with limited liability duly organized and validly
existing under the laws of PRC; Party B and Party C are current shareholders of
Party D and each holding 55% and 45% shares in Party D respectively.
(2) To finance the investment by Party B and Party C in Party D, Party A has
entered into loan agreements respectively with Party B and Party C on September
10, 2007, providing Party B and Party C with loans of ▇▇▇ ▇▇▇,▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
450,000 Yuan, respectively. Pursuant to the Loan Agreement, Party B and Party C
has invested the full amount of the loans in Party D's registered capital.
(3) Party B and Party C hereto wish to grant Party A or the qualified entity
designated by Party A the exclusive purchase option to acquire, at any time upon
satisfaction of the requirements under the PRC law, the entire or a portion of
Party D's share equity owned by Party B and/or Party C, or the all or a portion
of the Party's D's assets.
NOW AND THEREFORE, in accordance with the principle of sincere cooperation,
mutual benefit and joint development and after friendly negotiations, the
Parties hereby enter into the following agreements pursuant to the provisions of
relevant laws and regulations of the PRC.
ARTICLE 1. DEFINITIONS
The terms used in this Agreement shall have the meanings set forth below:
1.1 "This Agreement" means this Purchase Option Agreement and all appendices
thereto, including written instruments as originally executed and as may from
time to time be amended or supplemented by the Parties hereto through written
agreements.
1.2 "The PRC" means, for the purpose of this Agreement, the People's Republic of
China, excluding Hong Kong, Taiwan and Macao.
1.3 "Date" means the year, month and day. In this Agreement, "within" or "no
later than", when used before a year, month or day, shall always include the
relevant year, month or day.
ARTICLE 2. THE GRANT AND EXERCISE OF PURCHASE OPTION
2.1 The Parties hereto agree that Party A shall be granted an exclusive purchase
option to acquire, at any time upon satisfaction of the requirements under
applicable laws and conditions as agreed in this Agreement (including, without
limitation, as under applicable laws, when Party B and/or Party C cease to be
Party D's directors or employees, or Party B and/or Party C propose to transfer
their share equity in Party D to any party other than the existing shareholders
of Party D), the entire or a portion of Party D's share equity owned by Party B
and/or Party C, or the entire or portion of the assets owned by Party D
("Purchase Option"). The Purchase Option granted hereby shall be irrevocable
during the term of this Agreement and may be exercised by Party A or any
eligible entity designated by Party A.
2.2 Party A (or the eligible entity designated by Party A) may exercise the
aforesaid purchase option by delivering a written notice to Party B, Party C
and/or Party D (as the case may be) subject to the PRC laws and regulations (the
"Exercise Notice"), specifying the number of shares intended to be purchased
from Party B and/or Party C, or the amount of assets intended to be purchased
from Party B ("Purchased Shares (Assets)"), and the method of purchase.
2.3 Within thirty (30) days of the receipt of the Exercise Notice, Party B,
Party C or Party D (as the case may be) shall execute a share/asset transfer
contract and other documents (collectively, the "Transfer Documents") necessary
to effect the respective transfer of share equity or assets with Party A (or any
eligible party designated by Party A).
2.4 When applicable laws permit the exercise of the purchase option provided
hereunder and Party A elects to exercise such purchase option, Party B, Party C
and Party D shall unconditionally assist Party A to obtain all approvals,
permits, registrations, filings and other procedures necessary to effect the
transfer of relevant share equity or assets.
ARTICLE 3. EXERCISE PRICE
3.1 When it is permitted by applicable laws, Party A (or any eligible party
designated by Party A) shall have the right to acquire, at any time, all of
Party D's assets or its share equity owned by Party B and Party C, at a price
equal to the registered capital of Party D.
3.2 If Party A (or any eligible party designated by Party A) elects to purchase
a portion of Party D's share equity or assets, then the exercise price for such
purpose shall be adjusted accordingly based on the percentage of such share
equity or assets to be purchased over the total share equity or assets.
3.3 When Party A (or a qualified entity designated by party A) is to acquire all
or a portion of Party D's equity share from Party B and Party C pursuant to this
Agreement, Party A has the right to substitute the principle amounts Party B and
Party C respectively owe Party A under the Loan Agreement for the purchase
prices payable to Party B and Party C, respectively.
3.4 When acquiring share equity or assets from Party B, Party C, or Party D
pursuant to this Agreement, Party A (or a qualified entity designated by party
A) shall pay an actual exercise price based on the exercise price under
applicable PRC laws or requirements of relevant authorities, if the exercise
price under applicable laws or requirements of relevant authorities is higher
than the exercise price under this Agreement.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
4.1 Each party hereto represents to the other parties that:
4.1.1 it has all the necessary rights, powers and authorizations to enter into
this Agreement and perform its duties and obligations hereunder; and
4.1.2 the execution or performance of this Agreement shall not violate any
significant contract or agreement to which it is a party or by which it or its
assets are bounded.
ARTICLE 5. OTHER COVENANTS
The Parties further agree as follows:
5.1 Before Party A (or a qualified entity designated by party A) has acquired
all the equity/assets of Party D by exercising the purchase option provided
hereunder, Party D shall not:
5.1.1 sell, assign, mortgage or otherwise dispose of, or create any encumbrance
on, any of its assets, operations or any legal or beneficiary interests with
respect to its revenues (unless such sale, assignment, mortgage, disposal or
encumbrance is relating to its daily operation or has been disclosed to and
agreed by Party A in writing);
5.1.2 enter into any transaction which may materially affect its assets,
liability, operation, equity or other legal rights (unless such transaction is
relating to its daily operation or has been disclosed to and agreed by Party A
in writing); and
5.1.3 distribute any dividend to its shareholders in any manner.
5.2 Before Party A (or a qualified entity designated by party A) has acquired
all the equity/assets of Party D by exercising the purchase option provided
hereunder, Party B and/or Party C shall not individually or collectively:
5.2.1 supplement, alter or amend the articles of association of Party D in any
manner to the extent that such supplement, alteration or amendment may have a
material effect on Party D's assets, liability, operation, equity or other legal
rights (except for pro rata increase of registered capital mandated by
applicable laws);
5.2.2 cause Party D enter into any transaction to the extent such transaction
may have a material effect on Party D's assets, liability, operation, equity or
other legal rights (unless such transaction is relating to Party D's daily
operation or has been disclosed to and agreed by Party A in writing); and
5.2.3 cause Party D's board of directors adopt any resolution on distributing
dividends to its shareholders.
5.3 Party B and Party C shall, to the extent permitted by applicable laws, cause
Party D's operational term to be extended to equal the operational term of Party
A.
5.4 Party A shall provide or arrange other parties to provide financings to
Party D to the extent Party D needs such financing to finance its operation. In
the event that Party D is unable to repay such financing due to its losses,
Party A shall waive or cause the relevant parties to waive all recourse against
Party D with respect to such financing.
5.5 To the extent Party B and/or Party C are subject to any legal or economic
liabilities to any institution or individual as a result of performing their
obligations under this Agreement or any other agreements between them and Party
A, Party A shall provide all support necessary to enable Party B and/or Party C
to duly perform their obligations under this Agreement and any other agreements
and to hold Party B and/or Party C harmless against any loss or damage caused by
their performance of obligations under such agreements.
5.6 If Party A decides to transfer its rights under the Loan Agreement to any
third party, and has sent a written notice to the other Parties, Party A has the
right to transfer its rights and obligation hereunder to such third party at the
same time, with no need to obtain the prior consent of the Parties hereto.
5.7 Party B and Party C shall execute a Proxy of voting rights to the
satisfaction of Party A, attached hereto as Exhibit 1, authorizing a qualified
third party designated by Party A to exercise all the voting rights on behalf of
Party B and Party C. The first term of such Proxy shall be 20 years. Unless
Party A notifies Party B and Party C in writing to terminate such Proxy, the
term of this Proxy will be extended automatically after the expiry of the first
term.
ARTICLE 6. CONFIDENTIALITY
6.1 Each Party shall keep confidential all the content of this Agreement.
Without the prior consent of all Parties, no Party shall disclose any content of
this Agreement to any other party or make any public announcements with respect
to any content of this Agreement. Notwithstanding the forgoing provisions of
this Article 6, the following disclosure shall be permitted: (i) disclosure made
pursuant to any applicable laws or any rules of any stock exchange of US, PRC or
relevant countries; (ii) disclosure of information which has become public
information other than due to any breach by the disclosing party; (iii)
disclosure to any Party's shareholders, legal counsel, accountants, financial
advisors or other professional advisors, or (iv) disclosure to any potential
purchasers of a Party or its shareholders' equity/assets, its other investors,
debts or equity financing providers, provided that the receiving party of
confidential information has agreed to keep the relevant information
confidential (such disclosure shall be subject to the consent of Party A in the
event that Party A is not the potential purchaser).
6.2 The Parties agree this Article 6 will survive any invalidity, modification,
cancellation or termination of this Agreement, if applicable.
ARTICLE 7. APPLICABLE LAW AND EVENTS OF DEFAULT
7.1 The execution, effectiveness, interpretation, performance and dispute
resolution of this Agreement shall be governed by the laws of the PRC.
7.2 Any violation of any provision hereof, incomplete performance of any
obligation provided hereunder, any misrepresentation made hereunder, material
concealment or omission of any material fact or failure to perform any covenants
provided hereunder by any Party shall constitute an event of default. The
defaulting Party shall assume all the legal liabilities pursuant to the
applicable laws.
ARTICLE 8. DISPUTE RESOLUTION
8.1 Any dispute arising from the performance of this Agreement shall be first
subject to the Parties' friendly consultations. If the parties fail to make an
written agreement within thirty days after consultation, such dispute will be
submitted to the China International Economic and Trade Arbitration Commission
("CIETAC") in accordance with its arbitration rules/procedures. The tribunal
will be composed of one (1) arbitrator appointed by the chairman of CIETAC.
8.2 The arbitration shall be administered by the Beijing branch of China
International Economic and Trade Arbitration Commission in accordance with the
then effective arbitration rules of the Commission in Beijing.
8.3 The arbitration award shall be final and binding on the Parties. The costs
of the arbitration (including but not limited to arbitration fee and attorney
fee) shall be borne by the losing party, unless the arbitration award stipulates
otherwise.
ARTICLE 9. EFFECTIVENESS
9.1 This Agreement shall be effective upon the execution hereof by all Parties
hereto and shall remain effective thereafter. This Agreement may not be
terminated without the unanimous consent of all the Parties except Party A may,
by giving a thirty (30) days prior notice to the other Parties hereto, terminate
this Agreement.
9.2 If during the term of this Agreement, the operation term of Party A or Party
D (including any extended term) expires or is terminated due to other reasons,
this Agreement shall be terminated at the time such Party terminates, unless
Party A has transferred its rights and obligations hereunder to others pursuant
to Article 5.6.
ARTICLE 10. AMENDMENT
10.1 All Parties hereto shall fulfill their respective obligations hereunder. No
amendment to this Agreement shall be effective unless such amendment has been
made in written form, and agreed by all of the Parties and Party A and Party D
have obtained necessary authorization and approvals with respect to such
amendment. Any modification and supplementary to this Agreement after signed by
both Parties, become an integral part of this Agreement, and has the same legal
force with this Agreement.
ARTICLE 11. COUNTERPARTS
11.1 This Agreement is executed in four (4) counterparts, and are equally
authentic. . Party A, Party B, Party C, and Party D shall each hold one
counterpart.
ARTICLE 12. MISCELLANEOUS
12.1 Party B and Party C's obligations, covenants and liabilities to Party A
hereunder are joint and several, and Party B and Party C shall assume joint and
several liabilities with respect to such obligations, covenants and liabilities.
With respect to Party A, a default by Party B shall automatically constitute a
default by Party C, and vice versa.
12.2 The title and headings contained in this Agreement are for convenience of
reference only and shall not in any way affect the meaning or interpretation of
any provision of this Agreement.
12.3 The Parties may enter into supplementary agreements to address any issue
not covered by this Agreement. The supplementary agreements so entered shall be
an appendix hereto and shall have the same legal effect as this Agreement.
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Exhibit 1
---------
Proxy
I, ▇▇▇▇▇ ▇▇▇ the citizen of People Republic of China, ID No. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇,
hereby authorizes Fortune Software Beijing to exercise the following rights and
powers during the term of this Proxy:
(1) attend the shareholders' meeting of Beijing Premium Technology Co. Ltd.
("Company") as my proxy, and exercise all the voting rights of shareholders
granted by the relevant laws and the Articles of Association of the Company on
behalf of the Company; and
(2) Designate and appoint the directors, general manager, chief financial
officer and other senior management of the Company as my authorized
representative;
Party A hereby accepts the authorization herein.
The above authorization shall be subject to Fortune Software (Beijing) Co. Ltd.
continuing to be the designated party (or appointed party). Unless Fortune
Software (Beijing) Co. Ltd. (the appointed party) sends a written notice to
terminate or replace the title of Fortune Software (Beijing) Co. Ltd. as the
designated party (or appointed party), this Proxy shall continue to be valid for
20 years after the execution, and shall be renewed automatically after the
expiry of the first term.
Entrusting Party(signature):
Date:
Exhibit 1
---------
Proxy
I, Fan Zhenfei, the citizen of People Republic of China, ID No.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, hereby authorizes Fortune Software to exercise the following
rights and powers during the term of this Proxy:
(1) attend the shareholders' meeting of Beijing Premium Technology Co. Ltd.
("Company") as my proxy, and exercise all the voting rights of shareholders
granted by the relevant laws and the Articles of Association of the Company on
behalf of the Company; and
(2) Designate and appoint the directors, general manager, chief financial
officer and other senior management of the Company as my authorized
representative;
Party A hereby accepts the authorization herein.
The above authorization shall be subject to Fortune Software (Beijing) Co. Ltd.
continuing to be the designated party (or appointed party). Unless Fortune
Software (Beijing) Co. Ltd. (the appointed party) sends a written notice to
terminate or replace the title of Fortune Software (Beijing) Co. Ltd. as the
designated party (or appointed party), this Proxy shall continue to be valid for
20 years after the execution, and shall be renewed automatically after the
expiry of the first term.
Entrusting Party(signature):
Date:
[execution page only]
Party A: Fortune Software (Beijing )Co. Limited
Seal:
Authorized Representative (Signature):
Party B: ▇▇▇▇▇ ▇▇▇
(Signature):
Party C: Fan Zhenfei
(Signature):
Party D: Beijing Premium Technology Co, Ltd.
Seal:
Authorized Representative
(Signature):