EX-4.8
5
d500262dex48.htm
EX-4.8
Exhibit 4.8
Amended and Restated Equity Disposition Agreement
This Equity Disposition Agreement (the “Agreement”) is executed in Beijing of China on June 6, 2012 by the following parties (the “Parties”):
Party A: NQ Mobile (Beijing) Co., Ltd. (“NQ Beijing”)
Address: ▇▇▇▇ ▇▇▇▇-▇, ▇▇▇▇ ▇, ▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇ Incubator, Beijing Zhongguancun Software Park, Haidian District, Beijing
Party B: ▇▇ ▇▇▇ (ID: 352124197612060013)
Address: ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
Xu Zhou (ID: 110104690310301)
Address: Room 1601, Building 1, ▇▇.▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
Wenyong Shi (ID: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇)
Address:
Teaching Staff Dormitory, ▇▇. ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Party C: Beijing NQ Technology Co., Ltd. (“Beijing
Technology”)
Address: Room 1322, Building 1-C, Enterprise Incubator, Zhongguancun Software Industrial Park, Dongbeiwang, Haidian
District, Beijing, China
Whereas:
| 1. | Party A is a wholly foreign-owned enterprise duly incorporated and validly existing within the territory of the People’s Republic of China;
|
| 2. | Party C, Beijing NQ Technology Co., Ltd. (“Beijing Technology”) , is a limited liability company incorporated in China, of which the registered capital
changed from RMB10 million to RMB50 million from June 6, 2012; |
| 3. | Party B are shareholders of Beijing Technology (“Authorizers”), among which, ▇▇ ▇▇▇ holds RMB26 million of registered capital thereof, Xu Zhou RMB16,625,000
and Wenyong Shi RMB 7,375,000; |
| 4. | Party A and Beijing Technology entered into an Exclusive Technical Consulting Services Agreement (“Exclusive Consulting Services Agreement”) on June 5,
2007; all parties entered into an Equity Disposition Agreement (“Original Agreement”) on June 5, 2007; Party A and Party B entered into an Equity Interest Pledge Agreement (“Original Equity Interest Pledge Agreement”) on
August 6, 2007, to guarantee Beijing Technology to perform its obligations under the Exclusive Agreement; |
| 5. | Party A and Party B entered into an Amended and Restated Equity Interest Pledge Agreement (“Equity Interest Pledge Agreement”) to replace the Original Equity
Interest Pledge Agreement to provide security for Beijing Technology in order to perform its obligations under the Exclusive Consulting Services Agreement signed between Beijing Technology and Party A. In order for the safety of such rights of
pledge and in consideration of the technical support provided by Party A for Beijing Technology and the favorable cooperation relationships between the Parties, the Parties hereby agree as follows: |
| | The Parties hereto agree that as of the effectiveness of this Agreement, Party A is entitled to an exclusive option to purchase by itself or via a third party
designated by it all equity interests held by the Authorizers in Beijing Technology in an amount equivalent to USD [ ] under the covenants of this Agreement, unless as disclosed
to and approved expressly in writing by Party A in advance. Such option is conferred on Party B upon execution by the Parties and effectiveness of this Agreement. Such option may neither be revoked nor modified within the valid term of this
Agreement (including any extension under Article 1.2 hereafter) once granted. |
| | This Agreement shall be executed and effected on the date first above written. This Agreement shall be valid for ten years, commencing from the date of effectiveness
thereof. If required by Party A prior to the expiration of this Agreement, Party A and Beijing Technology shall extend the term hereof as required by Party A, and execute a separate equity disposal agreement or continue to perform this Agreement.
|
| 2. | EXERCISE OF OPTION AND CLOSING |
| 2.1.1 | The Authorizers agree that Party A may exercise the option hereunder in whole or in part at any time after this Agreement is executed and becomes effective to the
extent as permitted by the laws and regulations of the People’s Republic of China. |
| 2.1.2 | The Authorizers unanimously agree that Party A may exercise the option for any times without limitation, unless and until it acquires and holds 100% of the equity
interests of Beijing Technology. |
| 2.1.3 | The Authorizers unanimously agree that Party A may exercise its option through any third parties designated by it on its behalf, provided that Party A shall give prior
notice in writing to the Authorizers before such exercise. |
| 2.2 | Disposal of price of exercise |
| | The Authorizers agree that if Party A exercises the option, the full price of exercise so received by them shall immediately transfer to Beijing Technology without
compensation to repay fully the loan provided to authorizers under the loan agreements (the loan agreement entered by Party A and Party B and the three-party agreement entered by all Parties in 2007 as well as the loan agreement entered by Party A
and Party B on May 31, 2012). |
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| | The Authorizers agree that the option hereunder may be assigned in whole or in part to a third party without prior consent of the Authorizers. Such third party shall be
deemed as a party to this Agreement and may exercise such option under the terms hereof, and shall assume the rights and obligations of Party A hereunder. |
| | Where Party A exercises the option, it shall send a notice to the Authorizers ten working days prior to the Closing Date (as defined below), specifying the following
terms: |
| 2.4.1 | Effective closing date of equity interest upon exercise of option (hereinafter referred to as the “Closing Date”); |
| 2.4.2 | The names of holders of such equity to be registered upon exercise; |
| 2.4.3 | Quantities and percentages of equity interests purchased from the Authorizers respectively; |
| 2.4.4 | Exercise price and form of payment |
| 2.4.5 | Power of attorney (if exercised by a third party designated by Party A). |
| | The Parties hereto agree that Party A may from time to time designate a third party to exercise the option and register equities in the name of such third party.
|
| | Each time when Party A exercises the option, within ten working days upon receipt of a notice of exercise sent by Party A under Article 2.4 hereof:
|
| | (1) | The Authorizers shall direct Beijing Technology to convene a shareholders meeting, which shall: |
| | | adopt a resolution of the shareholders meeting that approves the Authorizers to assign their equities to Party A and/or its designated third parties:
|
| | (2) | The Authorizer shall execute an assignment agreement with Party A (or its designated third party, as the case may be) substantially in the form of the equity transfer
agreement as set out in Appendix 1 attached hereto; |
| | (3) | Party B shall each execute all contracts, agreements or instruments as required and obtain all necessary government approvals and consents, and take all necessary
actions to transfer the effective ownership of equity interests as purchased to Party A and/or its designated third parties free of any security interest, and cause Party A and/or its designated third parties to be registered owners of such equity
interests as purchased with the competent AIC, and submit up-to-date business license, Articles of Associations, certificates of approval (if applicable) and any other relevant documents as issued or filed for recordation by competent authorities of
China to Party A and/or its designated third parties, indicating such matters as the change of equity interests of Beijing Technology and change of directors and legal representative of Beijing Technology. |
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| 3. | REPRESENTATIONS AND WARRANTIES |
| | The Authorizers represent and warrant that: |
| 3.1.1 | they have full power and authority to execute and perform this Agreement; |
| 3.1.2 | the performance of this Agreement and the obligations hereunder will not violate any laws, regulations and other agreements binding upon them, and does not require any
governmental approval or authorization; |
| 3.1.3 | there is no pending or threatened action, arbitration or other judicial or administrative proceedings that may materially affects this Agreement;
|
| 3.1.4 | they have disclosed to Party A all circumstances that may have adverse effects on this Agreement; |
| 3.1.5 | none of them is declared bankrupt and that they are in good financial standing; |
| 3.1.6 | the equity interests held by them in Beijing Technology are free of any pledge, guaranty, liability and other third party encumbrance, and free of any recourse by any
third party; |
| 3.1.7 | they will not set any pledge, liability or any other third party encumbrance on the equity interests held by them in Beijing Technology, nor dispose of the equity
interests held by them in Beijing Technology to any other person other than Party A or its designated third parties by way of transfer, gift, pledge or otherwise; |
| 3.1.8 | the option granted to Party A hereunder is exclusive, and the Authorizers may not grant such option or similar right to any other person other than Party A or its
designated third parties in any other way; |
| 3.1.9 | during the valid term hereof, the business as carried out by Beijing Technology complies with all laws, regulations, provisions and other administrative provisions and
guidelines promulgated by other governmental authorities, and free of any circumstance in contravention of any of the foregoing and that may constitute substantial adverse affect on the business and assets of the company; |
| 3.1.10 | they will use good financial and commercial standards and practices to maintain the existence of Beijing Technology, prudently and effectively run its business and deal
with its affairs, exert all efforts to ensure Beijing Technology to maintain all licenses, permits and approvals necessary for its operation, and that such permits, licenses and approvals will not be cancelled, withdrawn or declared invalid;
|
| 3.1.11 | they will provide all operating and financial information in respect of Beijing Technology as required by Party A; |
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| 3.1.12 | Before Party A (or its designated third parties) exercises the option and acquires 100% equity or interest of Beijing Technology, and unless as approved by Party A (or
its designated third parties) in writing, Beijing Technology may not: |
| | (a) | sell, transfer, pledge or otherwise dispose of any asset, business or earning, or allow any other security interest to be set thereon (unless as arising during normal
or daily business process or as disclosed to Party A and approved expressly in writing by Party A in advance); |
| | (b) | conclude any transaction that may cause material adverse effect on its asset, liability, operation, equity interest or other legitimate rights (unless as arising during
normal or daily business process or as disclosed to and approved expressly in writing by Party A in advance); |
| | (c) | distribute any dividend or bonus to its shareholders by any means; |
| | (d) | incur, inherit, secure for or permit the existence of any liability, except for (i) any liability arising from borrowing due to any insufficiency in normal or
daily business process; or (ii) any liability as disclosed to and approved expressly in writing by Party A; |
| | (e) | execute any important contracts, excluding such contracts as executed during normal business process (for the purposes of this paragraph, a contract with a value
exceeding RMB150,000 shall be taken as an important contract); |
| | (f) | increase or decrease the registered capital of Beijing Technology through shareholders meetings or otherwise change the structure of the registered capital;
|
| | (g) | make additions, changes or modifications to the Articles of Association of Beijing Technology; or |
| | (h) | consolidate or associate with any other person, or acquire any person or invest in any person. |
| 3.1.13 | Before Party A (or its designated third parties) exercises the option and acquire 100% equity or assets of Beijing Technology, unless as expressly approved in writing
by Party A (or its designated third parties), Party B may not by individually or jointly: |
| | (a) | in any way make any additions, changes or modifications to the constitutional documents of Beijing Technology that may cause material adverse effect on the asset,
liability, operation, equity interest or other legitimate rights of NetQin Technology (except for same percentage increment for compliance with the law), or on the effective performance of this Agreement, and other agreements executed by Party A,
Party B and Beijing Technology; |
| | (b) | procure Beijing Technology to conclude any transaction that may have material adverse effect on the asset, liability, operation, equity interest and other legitimate
rights of Beijing Technology (unless as arising from normal or daily business process or as disclosed to and expressly approved in writing by Party A in advance); |
| | (c) | procure the shareholders meeting of Beijing Technology to adopt any resolution of distribution of any dividend and bonus; |
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| | (d) | sell, transfer, charge or otherwise dispose of any legitimate or beneficiary interest of any equity interest of Beijing Technology, or permit any other security
interest to be set thereon at any time following the effectiveness of this Agreement; |
| | (e) | procure a shareholders meeting of Beijing Technology to approve the sale, transfer, charge or otherwise disposal of any legitimate and beneficiary interests of any
equity, or permit any other security interest to be set thereon; |
| | (f) | cause a shareholders meeting of Beijing Technology to approve any consolidation or association of Beijing Technology with any other person, or acquisition of any person
or investment in any person, or reorganization in any other form; or |
| | (g) | voluntarily wind up, liquidate or dissolve Beijing Technology. |
| 3.1.14 | Before Party A (or its designated third parties) exercises the option and acquires 100% equity interest or assets of Beijing Technology, each of Party B undertakes to:
|
| | (a) | immediately notify Party A in writing of any action, arbitration or administrative proceedings in respect of the equity owned by Party A that has occurred or may occur,
or any circumstance that may have any adverse effect on such equity interest; |
| | (b) | cause the shareholders meeting of Beijing Technology to approve any transfer of equity interests purchased under this Agreement, cause Beijing Technology to modify its
Articles of Association to reflect the transfer of equity from Party B to Party A and/or its designated third parties, as well as other changes as set out herein, and immediately apply to competent authority of China for approval (as may be required
by the law) and registration of changes, and cause Beijing Technology to approve the appointment of any persons assigned by Party A and/or its designated third parties as new directors and new legal representative via shareholders meetings;
|
| | (c) | execute all necessary or appropriate documents, take all necessary or appropriate actions and bring all necessary charges or and provide necessary and appropriate
defense against all claims for the purpose of maintaining its legitimate and valid ownership in respect of its equity interest; |
| | (d) | as required by Party A from time to time, unconditionally and immediately transfer its equity interest to any third party as designated by Party A, and waive its right
of first refusal in relation to said equity transfer by another existing shareholder; and |
| | (e) | comply with this Agreement and any other contracts as executed by and between Party A and Party B individually or jointly in all respects, effectively perform all
obligations under such contracts, and refrain from any acts/omissions suffice to affect the validity and enforceability of this Agreement. |
| | The Authorizers undertake to bear all costs and expenses arising from equity transfer, and deal with all formalities necessary for Party A and/or its designated third
parties to become shareholders of Beijing Technology, including without limitation to assisting Party A to obtain all necessary governmental approvals for equity transfer, submitting such documents as equity transfer agreement and resolutions of the
shareholders meeting to relevant AIC and modifying the Articles of Association, share register and other constitutional documents. |
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| 3.3 | Each of Party B hereby jointly and severally represents and warrants to Party A on the date of this Agreement execution and each Closing Date that:
|
| | (1) | it has full power and capacity to execute and deliver this Agreement and any equity transfer agreement executed under this Agreement for each transfer of purchased
equity interest to which it is a party (each a “Transfer Agreement”), and to perform the obligations under this Agreement and any Transfer Agreement. Once executed, this Agreement and each Transfer Agreement to which it is a party shall
constitute legitimate, valid and binding obligations and may be enforced against it under their terms; |
| | (2) | Neither the execution and delivery of this Agreement or any Transfer Agreement nor the performance of obligations under this Agreement or any Transfer Agreement will:
(i) operate to violate any relevant Chinese laws or regulations; conflict with its Articles of Association or other constitutional documents; (iii) result in violation of any contract or instrument to which it is a party or that is binding
upon it, or constitute any breach under any contract or instrument to which it is a party or that is binding upon it; (iv) lead to any violation of any permit or approval issued to it and/or any condition with continued force and effect; or
(v) result in any suspension or revocation of any permit or approval issued to it or any additional conditions; |
| | (3) | Party B has good and marketable ownership to all equity interests of Beijing Technology. Party B has not set any security interest on said equity interests;
|
| | (4) | Beijing Technology is free of any outstanding obligations, except for (i) any obligations incurring during normal business process; and (ii) obligations that
has disclosed to and expressly approved in writing by Party A in advance; |
| | (5) | Beijing Technology has complied with and will continue to comply with all laws and regulations applicable to the acquisition of equity interests and assets; and
|
| | (6) | there is no on-going or pending or future threatened action, arbitration or administrative proceedings relating to equity, assets of Beijing Technology.
|
| | Any and all taxes arising from the performance of this Agreement shall be borne by all parties hereto respectively. |
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| 5.1 | Where Party B or Party C breaches this Agreement or any representation or warranty made hereunder, Party A may send a notice in writing to the default party requiring
it to remedy such default within ten days upon receipt of such notice, take appropriate steps to avoid the occurrence of harmful consequences in an effective and timely manner, and continue to perform this Agreement. The default party shall
compensate Party A for any damage so incurred by Party A so that Party A may acquire all interests it is entitled to when this Agreement is duly performed. |
| 5.2 | Where Party B or Party C fails to remedy its breaches within ten days upon receipt of the notice under Article 5.1, Party A shall be entitled to require the default
party to provide compensation for any and all costs, liabilities or losses so incurred by Party A (including but not limited to any interests paid or lost due to such default and attorney’s fees). Simultaneously, Party A shall have the right to
enforce the equity transfer agreement attached hereto and transfer the equity interests held by Party B to Party A and/or its designated third parties. |
| 6. | GOVERNING LAW AND DISPUTE RESOLUTION |
| | This Agreement, including but no limited to its completion, performance, validity and construction, shall be governed in accordance with the laws of the People’s
Republic of China. |
| 6.2 | Amicable consultation |
| | Any dispute arising from the construction or performance of this Agreement shall be resolved by amicable consultations between and among the Parties or via conciliation
by a third party. Failing which, such dispute shall be submitted to the competent arbitral authority for determination within 30 days as of the commencement of relevant discussion as aforesaid. |
| | Any dispute arising in respect of this Agreement shall be submitted to the China International Trade Arbitration Commission (Beijing) for determination in accordance
with its rules of arbitration. The arbitration shall take place in Beijing. The arbitral award shall be final and binding upon all Parties hereto. |
| 7.1 | Confidential information |
| | This Agreement and its appendices shall be kept in confidential. No party hereto may disclose any information in relation to this Agreement to any third party (unless
as approved by all Parties hereto in advance). This Article 7.1 shall survive the termination of this Agreement. |
| | Any information disclosed as required by any law, court ruling, arbitral award and any decision of any governmental authority shall not be taken as a breach under
Article 7.1. |
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| | The Parties acknowledge that this Agreement constitutes fair and reasonable covenants agreed on the base of equality and mutual benefit. This Agreement constitutes
entire agreement with respect to the subject matter hereunder between the Parties. In the event of any inconsistency between this Agreement and any prior discussion, negotiation or agreement, this Agreement shall take precedence. From the date of
execution of this Agreement, this Agreement shall replace the Original Agreement. The Parties may modify this Agreement in writing. The appendices attached hereto constitute integral part of this Agreement and shall be equally binding as this
Agreement. |
| 8.2.1 | All notices sent under this Agreement by the Parties for the purpose of exercising and performing the rights and obligations hereunder shall be made in writing and sent
by personal delivery, registered post, prepaid post, recognized courier service or facsimile to the address of the party concerned or all Parties as follows: |
Party A: NQ Mobile (Beijing) Co., Ltd.
Address: ▇▇▇▇ ▇▇▇▇-▇, ▇▇▇▇ ▇, ▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇
Incubator, Beijing Zhongguancun Software Park,
Haidian District, Beijing
Facsimile:
Tel.:
Attention:
Party B:
▇▇ ▇▇▇
Address: ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, postgraduate, enrolled in
1998
Facsimile: (▇▇▇▇) ▇▇▇▇▇▇▇▇
Tel.: (▇▇▇▇) ▇▇▇▇▇▇▇▇-▇▇▇
Attention:
Xu Zhou
Address: Room 1601,
Building 1, ▇▇.▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
Facsimile: (▇▇▇▇) ▇▇▇▇▇▇▇▇
Tel.: (▇▇▇▇) ▇▇▇▇▇▇▇▇-▇▇▇
Attention:
Wenyong Shi
Address: Teaching
Staff Dormitory, ▇▇. ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: (▇▇▇▇) ▇▇▇▇▇▇▇▇
Tel.: (▇▇▇▇) ▇▇▇▇▇▇▇▇-▇▇▇
Attention:
Party C: Beijing NQ Technology Co., Ltd. (“Beijing Technology”)
Address: Room 1322, Building 1-C, Enterprise Incubator, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
Facsimile: (▇▇▇▇) ▇▇▇▇▇▇▇▇
Tel.:
(▇▇▇▇) ▇▇▇▇▇▇▇▇-▇▇▇
Attention:
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| 8.2.2 | A notice or communication in any of the following cases shall be deemed as duly served: |
| 8.2.2.1 | If delivered by facsimile, on the date as shown on the fax, but if such fax is delivered later than 5:00 p.m. or on a non-working day, then on the following working day
after the date shown on the fax; |
| 8.2.2.2 | If delivered by personal delivery (including express delivery), on the date of sign-in; |
| 8.2.2.3 | If delivered by registered post, then on the fifteenth day after the date on the return receipt. |
| | This Agreement shall be binding upon all Parties hereto. |
| | This Agreement is made in quintuplicate in the Chinese language, with one copy thereof for each party hereto. |
| | A “day” as referred to herein shall be a calendar day, and a “working day” herein shall refer to any day from Monday to Friday.
|
| | The headings of this Agreement are for convenience of reference only, and may not be used in the construction of this Agreement. |
| | The obligations, undertakings and liabilities of the Authorizers hereunder to Party A are joint and several, and the Authorizers are jointly and severally liable to
each other. As for Party A, the breach of any of the Authorizers shall automatically constitute a breach of the Authorizers. |
| | Any and all matters uncovered hereunder shall be resolved in accordance with the laws of the People’s Republic of China by consultation between and among the
Parties. |
(No text hereinbelow)
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[This page is for signatures and contains no text]
Party A: NQ Mobile (Beijing) Co., Ltd.
(Company Seal)
|
| Authorized representative: |
|
| /s/ ▇▇ ▇▇▇
|
| ▇▇ ▇▇▇ |
|
| Part B: |
|
| /s/ ▇▇ ▇▇▇
|
| ▇▇ ▇▇▇ |
|
| /s/ Xu Zhou
|
| Xu Zhou |
|
| /s/ Wenyong Shi
|
| Wenyong Shi |
|
| Party C: Beijing NQ Technology Co., Ltd. |
|
| (Company Seal) |
|
| Authorized representative: |
|
| /s/ ▇▇ ▇▇▇
|
| ▇▇ ▇▇▇ |
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