Supplemental Agreement to Acquisition Framework Agreement
Exhibit
10.36
English Translation of
Chinese Language Agreement
THIS
SUPPLEMENTAL AGREEMENT TO THE ACQUISITION FRAMEWORK AGREEMENT (the “Agreement”) is entered into by
and among the following parties in Suzhou, Jiangsu Province, China on October
30, 2008:
PARTIES:
Beijing Feijie Investment Co., Ltd.
(the “Acquirer”)
Legal
representative: ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Executive Director
Zhuqun Peng (the “Controlling
Party”)
Identity
card number: 320626197005208816
The companies and individual
industrial and commercial households listed in Schedule 1 (collectively,
the “Transferors”)
In this
Agreement, each of the Acquirer, the Controlling Party and the Transferors is
separately referred to as a “Party” and collectively as the
“Parties.” Unless
specifically noted or otherwise specified, words or terms used in this
Agreement, other than those defined herein, shall have the meanings specified in
the Acquisition Framework Agreement.
RECITALS:
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1.
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WHEREAS
the Acquirer, the Controlling Party and the Transferors have executed the
acquisition framework agreement (the “Acquisition Framework
Agreement”) on May 5, 2008.
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2.
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WHEREAS
the Acquirer and the Controlling Party have executed the operation and
management agreement (the “Operation and Management
Agreement”) on May 5, 2008.
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1
Exhibit
10.36
English Translation of
Chinese Language Agreement
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3.
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WHEREAS,
pursuant to the provisions of the Acquisition Framework Agreement entered
into by the Parties, the Controlling Party and Suzhou Guanzhilin Mobile
Phones Hypermarket Co., Ltd. (“Suzhou Guanzhilin” and,
together with the Controlling Party, the “Shareholders of Jiangsu
Guanzhilin”) jointly formed Jiangsu Guanzhilin Mobile Phones
Hypermarket Co., Ltd. (“Jiangsu Guanzhilin”)
with a Registered Capital of RMB 100,000,000, in which the Controlling
Party will contribute RMB 49,000,000, accounting for 49% of the total
Registered Capital, and Suzhou Guanzhilin will contribute RMB 51,000,000,
accounting for 51% of the total Registered Capital. By July 1,
2008, the Controlling Party and Suzhou Guanzhilin had contributed RMB
40,000,000 in total to the Registered Capital of Jiangsu Guanzhilin, in
which Suzhou Guanzhilin paid RMB 20,400,000 and the Controlling Party paid
RMB 19,600,000. A sum of RMB 60,000,000 has yet to be
contributed, of which RMB 30,600,000 is to be paid by Suzhou Guanzhilin
(the “Outstanding
Contribution of Suzhou Guanzhilin”) and RMB 29,400,000 is to be
paid by the Controlling Party (the “Outstanding Contribution of
Controlling Party” and, together with the “Outstanding Contribution
of Suzhou Guanzhilin, the “Outstanding
Contributions”).
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4.
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WHEREAS
the Acquirer signed a payment adjustment confirmation letter (the “Payment Adjustment Confirmation
Letter”) on June 24, 2008, in which the Acquirer confirmed and
agreed to certain adjustments to the payment of the Registered Capital
contribution and the Acquisition Consideration of Jiangsu
Guanzhilin.
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5.
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WHEREAS
the word “Damaichang” (in Chinese) in Schedule 1 of the Acquisition
Framework Agreement shall be amended to “Hypermarket,” certain other
information specified in Schedule 1 of the Acquisition Framework Agreement
shall be changed, and the “September 31, 2008” date referenced in the
Acquisition Framework Agreement shall be amended to “September 30,
2008.”
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6.
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WHEREAS
the name “Shanghai Yinqi Telecommunications Equipment Co., Ltd. Yancheng
Guanzhi Mobile Phones Hypermarket” in Item 7 of Schedule 1 of the
Acquisition Framework Agreement shall be changed to the correct name
“Shanghai Yinqi Telecommunications Equipment Co., Ltd. Yancheng Guanzhilin
Mobile Phones Hypermarket”(“Yancheng Hypermarket”),
and the signatory party to the Acquisition Framework Agreement shall be
Yancheng Hypermarket. Shanghai Yinqi Telecommunications
Equipment Co. Ltd. (“Shanghai Yinqi”) passed
a shareholder resolution on May 4, 2008, agreeing that Shanghai Yinqi
shall enter into and perform the obligations under Acquisition Framework
Agreement and other ancillary agreements with respect to the transfer of
the assets and businesses of Yancheng
Hypermarket.
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7.
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WHEREAS
Jiangsu Guanzhilin, the subsidiaries listed in Schedule 2 (the “Jiangsu Subsidiaries”
and, together with Jiangsu Guanzhilin, the “Jiangsu Companies”), the
Controlling Party and the Transferors entered into the Asset and Business
Acquisition Agreement (the “Asset and Business Acquisition
Agreement”) on September 12, 2008 and will enter into the
Supplemental Agreement to the Asset and Business Acquisition Agreement
(including all annexes thereto, the “Supplemental Asset and Business
Acquisition Agreement”) with respect to the closing of the transfer
of the Target Assets and the Target Businesses (collectively, the “Asset
Closing”).
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2
Exhibit
10.36
English Translation of
Chinese Language Agreement
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8.
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WHEREAS
pursuant to the provisions of the Acquisition Framework Agreement entered
into by the Parties, after Jiangsu Guanzhilin acquires the Target Assets
and the Target Businesses and completes the Asset Closing, Suzhou
Guanzhilin shall transfer its 51% equity interests in Jiangsu Guanzhilin
to the Acquirer (the “Target Equity
Transfer”). The Acquirer and the Shareholders of Jiangsu
Guanzhilin will enter into an equity transfer agreement (the “Equity Transfer
Agreement”) with respect to the Target Equity, process the
amendment registration with the Administration for Industry and Commerce
for the equity transfer and enter into a supplemental agreement to the
Equity Transfer Agreement (the “Supplemental Equity Transfer
Agreement”) with respect to the transfer of the Target
Equity.
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9.
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WHEREAS
Articles 6 and 31 of the Acquisition Framework Agreement and Articles 16
and 17 of the Operation and Management Agreement preliminarily set forth
provisions concerning the pledge of the equity already held or to be held
by the Controlling Party in Jiangsu Guanzhilin (the “Controlling Party’s
Equity”). The Controlling Party, the Acquirer and
Jiangsu Guanzhilin will enter into an equity pledge agreement (including
any supplemental agreements, the “Equity Pledge
Agreement”) with respect to the detailed arrangement of the pledge
of the Controlling Party’s Equity in Jiangsu
Guanzhilin.
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10
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WHEREAS
it is unanimously agreed by the Parties to modify and/or supplement parts
of the provisions of the Acquisition Framework Agreement and the
arrangement of the pledge of the Controlling Party’s Equity, and agree on
relevant issues in connection with the Asset and Business Acquisition
Agreement, the Supplemental Asset and Business Acquisition Agreement, the
Equity Transfer Agreement, the Supplemental Equity Transfer Agreement and
the Equity Pledge Agreement.
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3
Exhibit
10.36
English Translation of
Chinese Language Agreement
NOW, THEREFORE, the Parties have
reached the following agreements through negotiations:
Article
1 The Parties hereby agree
and confirm that: (1) relevant parties shall execute the Asset and Business
Acquisition Agreement, the Supplemental Asset and Business Acquisition
Agreement, the Equity Transfer Agreement, the Supplemental Equity Transfer
Agreement, the Equity Pledge Agreement and other documents required for the
purpose of performing the above agreements; (2) based on the provisions of the
Acquisition Framework Agreement and this Agreement, the closing of the transfer
of the Target Assets and Target Businesses under the Asset and Business
Acquisition Agreement shall be executed pursuant to the provisions of the Asset
and Business Acquisition Agreement and the Supplemental Asset and Business
Acquisition Agreement, while the transfer of the Target Equity shall be executed
pursuant to the provisions of the Equity Transfer Agreement and the Supplemental
Equity Transfer Agreement, and the pledge arrangement of the Controlling Party’s
Equity shall be executed pursuant to the Equity Pledge Agreement; (3) the
Jiangsu Subsidiaries listed in Schedule 2 attached hereto shall also be the
acquirer of the Target Assets and Target Businesses, together with Jiangsu
Guanzhilin as the Acquirer of the Target Assets and Target Businesses; (4) the
Acquirer and the Controlling Party shall enter into a supplemental agreement to
the Operation and Management Agreement, stipulating that the business, finance,
human resource and management of the Jiangsu Subsidiaries shall be incorporated
into Jiangsu Guanzhilin’s operation and management system, the operating
performance of the Jiangsu Subsidiaries shall be incorporated into Jiangsu
Guanzhilin’s performance review system, and the financial condition of the
Jiangsu Subsidiaries shall be audited and reviewed by the auditor selected by
the Parties; (5) unless otherwise specified, “Target Assets,” “Shareholders of
Newco,” “Registered Capital,” “the formation of Newco,” “transfer of the equity
in Newco,” “transfer of the equity by the Controlling Party,” “Share Pledge” and
other similar terms in the Acquisition Framework Agreement shall exclusively
refer to Jiangsu Guanzhilin, and the terms stipulated in the Acquisition
Framework Agreement with respect to “Guaranteed Net Profit Base,” “Undisclosed
Liabilities,” “Annualized Net Profit,” “Net Profit,” “Audited Year,” “Sales
Support Income,” “Operating Profit Index Lockup Period,” “Operating Profit
Index,” “Performance Reward,” “Audit Reference Date,” “financial report,”
“Affiliate,” “business objectives” and any other similar terms shall be used to
assess, examine, calculate and review the performance of the Jiangsu Companies
as a whole (the aforesaid terms shall apply to the Jiangsu Companies as a whole,
unless the Acquirer agrees to adjust the applicability of such
terms).
Article
2 The Parties hereby agree
and confirm that: (1) the word “Damaichang” (in Chinese) in Schedule 1 of the
Acquisition Framework Agreement shall be amended as “Hypermarket;” (2) the name
“Shanghai Yinqi Telecommunications Equipment Co., Ltd. Yancheng Guanzhi Mobile
Phones Hypermarket,” as in Item 7 of Schedule 1 of the Acquisition Framework
Agreement shall be amended to the correct name “Shanghai Yinqi
Telecommunications Equipment Co., Ltd. Yancheng Guanzhilin Mobile Phones
Hypermarket,” and (3) the date “September 31, 2008” stated in the Acquisition
Framework Agreement shall be amended to “September 30, 2008.” All
Parties agree that the above amendments shall be made and the Acquisition
Framework Agreement and other ancillary agreements and documents entered into
pursuant to the Acquisition Framework Agreement (including, but not limited to:
the Asset and Business Acquisition Agreement, the Supplemental Asset and
Business Acquisition Agreement, the Equity Transfer Agreement, the Supplemental
Equity Transfer Agreement, the Operation and Management Agreement and the
Supplemental Agreement to the Operation and Management Agreement) shall be
performed by the parties according to the above amendments.
4
Exhibit
10.36
English Translation of
Chinese Language Agreement
Article 3 The
Parties agree and confirm that: (1) “Wujiang Guanzhilin Communications Equipment
Co., Ltd.” in Item 2 of Schedule 1 of the Acquisition Framework Agreement has
been renamed to “Wujiang Guanlin Telecommunications Equipment Co., Ltd.” (“Wujiang Guanlin”) and relevant
agreements and documents shall be signed and issued by using the changed name;
(2) Yancheng Hypermarket in Item 7 of Schedule 1 of the Acquisition Framework
Agreement is a branch company of Shanghai Yinqi. Both the
shareholders of Shanghai Yinqi and Shanghai Yinqi have agreed to transfer
to the Jiangsu Companies the assets and businesses relating to the Target Assets
and the Target Businesses controlled and owned by Shanghai Yinqi and owned or
operated by Yancheng Hypermarket in accordance with the provisions of the
Acquisition Framework Agreement, this Agreement, the Asset and Business
Acquisition Agreement and the Supplemental Asset and Business Acquisition
Agreement; (3) Schedule 1 of the Acquisition Framework Agreement does not
include “Taicang Runzhilin Telecommunications Equipment Co., Ltd.” (“Taicang
Runzhilin”). The Parties confirm and agree to add Taicang
Runzhilin as one of the Transferors of the Target Assets and Target Businesses,
which will, as a Party to the Acquisition Framework Agreement, enjoy and
undertake the rights and obligations of the Transferors; (4) Schedule 1 of the
Acquisition Framework Agreement will be updated by replacing it with Schedule 1
of this Agreement. Schedule 1 of this Agreement shall be used as the basis for
the Parties to perform the Acquisition Framework Agreement and other relevant
agreements and documents.
Article 4 The
Parties agree that the Audit Reference Date as set forth in the Acquisition
Framework Agreement shall be changed to October 31, 2008 (the “Audit Reference Date”); as of
October 31, 2008, the Jiangsu Companies shall have completed the transfer of the
Target Assets and the Target Businesses according to the previous agreements or
other written agreements among the relevant parties and shall have obtained the
relevant confirmation of the Acquirer and the Controlling Party and/or the
shareholders of the Jiangsu Companies. Other practicable dates may be determined
to be the Audit Reference Date upon agreement by the Parties. The dates relating
to the Audit Reference Date in the Acquisition Framework Agreement and
subsequent contracts, agreements or documents shall be dated
accordingly.
Article 5 The
Parties agree to further clarify the transfer and acquisition of the Target
Equity and the calculation and payment of the Acquisition Consideration as
below: (1) Suzhou Guanzhilin shall transfer to the Acquirer its 51% equity in
Jiangsu Guanzhilin, including the rights relating to the paid contributions and
the obligation relating to the Outstanding Contribution of Suzhou Guanzhilin,
and the Acquirer shall accept the transfer of such 51% equity as well as the
rights and obligations corresponding thereto; (2) without changing the formula
set forth in Article 7 of the Acquisition Framework Agreement, since the
Acquirer will take over the obligation to pay the Outstanding Contribution of
Suzhou Guanzhilin, the Acquisition Consideration will be net of an amount
equivalent to the Outstanding Contribution of Suzhou Guanzhilin, i.e. RMB
30,600,000, which will be directly used by the Acquirer to pay the Outstanding
Contribution of Suzhou Guanzhilin when the Acquirer pays the Acquisition
Consideration in installments pursuant to the provisions of this Agreement and
the Supplemental Equity Transfer Agreement; (3) the Acquisition Consideration
shall be paid according to the provisions of the Supplemental Equity Transfer
Agreement.
5
Exhibit
10.36
English Translation of
Chinese Language Agreement
Article
6 The
Parties hereby agree that the following supplement shall be made to Article
1.15(a) of the Acquisition Framework Agreement: The Acquirer has been informed
that the Controlling Party, the Transferors and the People’s Government of
Muyang County, Jiangsu Province entered into an investment agreement on June 6,
2008 (the “Investment
Agreement”). The tax return and any other preferential
taxation treatment that Jiangsu Guanzhilin receives before the date of the
annual audit report of the Audited Year based on the Investment Agreement shall
be calculated to increase the Net Profit value according to Chinese accounting
standards.
Article
7 The
Parties hereby agree that, according to the Confirmation Letter, Section 2 and
Section 3 of Article 8 of the Acquisition Framework Agreement shall be amended
as follows:
Second
Installment. Within three business days after the Closing Date, the Acquirer
shall make deposits in the amount of RMB 98,100,000,
of which RMB 67,500,000
shall be paid to the account designated by the Controlling Party and
Suzhou Guanzhilin, while RMB 30,600,000
shall be paid in the form of a contribution to the Registered Capital of Jiangsu
Guanzhilin. The first and second installments shall together equal
50%
of the Acquisition Consideration.
Third
Installment. If the conditions set forth in Article 11 of this
Agreement are satisfied, then within 30 days after the Closing Date, the
Acquirer shall make deposits in the amount of RMB 94,860,000,
an amount equal to 30%
of the Acquisition Consideration.
Fourth
Installment. If the Annualized Net Profits of Jiangsu Guanzhilin
reach the Guaranteed Net Profit Base according to the audit report for the First
Audited Year (from November 1, 2008 to December 31, 2009), then within 10 days
after the auditor completes its audit of Jiangsu Guanzhilin for the First
Audited Year and delivers its audit report, the Acquirer shall make a deposit in
the amount of 10%
of the Acquisition Consideration (RMB 31,620,000). The
audit report shall be delivered no later than March 15, 2010. If the audit
report is delayed because of the reasons set forth in Article 16 of this
Agreement and Article 3.7 of the Supplemental Agreement to the Equity Transfer
Agreement, the Acquirer’s ceasing of payment of the fourth installment shall not
be deemed as a delayed payment of the Acquisition
Consideration.
6
Exhibit
10.36
English Translation of
Chinese Language Agreement
Fifth
Installment. If the Net Profits of Jiangsu Guanzhilin reach the
Operating Profit Index as defined herein and in the Operation and Management
Agreement according to the audit report for the Second Audited Year, then within
10 days after the auditor completes its audit of Jiangsu Guanzhilin for the
Second Audited Year (the calendar year 2010) and delivers its audit report, the
Acquirer shall make a deposit in the
amount of 10%
of the Acquisition Consideration (RMB 31,620,000). The audit report shall be
delivered no later than March 15, 2011. If the audit report is
delayed because of the reasons set forth in Article 16 of this Agreement and
Article 3.7 of the Supplemental Agreement to the Equity Transfer Agreement, the
Acquirer’s failure to timely pay the
fifth installment shall not be deemed as a delayed payment of the Acquisition
Consideration.
Article 8 The
Parties acknowledge that, since the Transferors’ sales volume and expenses for
the calendar year 2007 conform to the guaranteed standards under Article 9 of
the Acquisition Framework Agreement, according to the results of the due
diligence investigation conducted by the auditor with respect to the
Transferors’ financial conditions for the calendar year 2007, the adjusted
payment schedule for the Acquisition Consideration under Article 11 of the
Acquisition Framework Agreement will not apply.
Article 9 The
closing condition with respect to delivery of inventory, as set forth under
Article 22 (2)(a) of the Acquisition Framework Agreement, shall be amended as
follows: The inventories of mobile phones and accessories shall be sold to the
Jiangsu Companies, with the exception that the Value Added Tax invoices of
inventory in the amount of RMB 971,659.83 transferred to Weifang Yuandu
Guanzhilin Mobile Phones Hypermarket Co., Ltd. shall be issued by the
Transferors prior to November 20, 2008, the amount of the Value Added Tax
invoices issued by the Transferors to the Jiangsu Companies prior to October 26,
2008 for such inventories shall not be less than 70% of the closing price for
such inventories, and the remaining invoices shall be issued prior to October
30, 2008. If the Transferors fail to issue invoices according to the
above provisions, thus causing any loss to the Jiangsu Companies or the
Acquirer, the Transferors and the Controlling Party shall bear joint and several
responsibility to compensate the relevant losses, and the Acquirer shall be
entitled to directly deduct the amount of relevant losses from the Acquisition
Consideration.
Article 10 The
Controlling Party guarantees that the net assets in the consolidated financial
statements of the Jiangsu Companies on the Audit Reference Date shall be no less
than RMB 40,000,000. Otherwise, the Controlling Party and Suzhou
Guanzhilin shall bear joint and several responsibility to make up the difference
prior to the payment of the third installment of the Acquisition Consideration,
or the Acquirer may directly deduct the difference from the third installment of
the Acquisition Consideration. The lowest guaranteed value of the net
assets on the Audit Reference Date in the Acquisition Framework Agreement shall
be changed to RMB 40,000,000 accordingly.
The net
assets mentioned herein: (1) shall be accounted for under the Chinese accounting
standards; (2) if any amount in the RMB 60,000,000 Outstanding Contributions of
Jiangsu Guanzhilin is paid before the Audit Reference Date, such amount shall
not be included in the above guaranteed lowest net assets value of RMB
40,000,000.
7
Exhibit
10.36
English Translation of
Chinese Language Agreement
Article
11 The Parties agree that only after all the
conditions below are satisfied or waived by the Acquirer in writing will the
Acquirer be obliged to pay the third installment of the Acquisition
Consideration as agreed in the Supplemental Equity Transfer
Agreement:
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(1)
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The
conditions for the payment of the first and second installments of the
Acquisition Consideration have been satisfied or waived by the Acquirer in
writing.
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(2)
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The
remaining Registered Capital of Jiangsu Guanzhilin in the amount of RMB
29,400,000 has been paid by the Controlling Party (capital verification
and the amendment registration with the Administration for Industry and
Commerce shall have been completed, subject to the newly issued business
license).
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(3)
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The
net assets of the Jiangsu Companies in the consolidated financial
statements as at the Audit Reference Date shall not be less than RMB
40,000,000. If the net assets in the consolidated financial
statements are less than RMB 40,000,000, the difference shall have been
made up by the Controlling Party and/or Suzhou Guanzhilin. The
Controlling Party guarantees to prepare the balance sheet as of October
31, 2008 and the income statement for the period ended October 31, 2008 of
the Jiangsu Companies, as well as the consolidated financial statements of
Jiangsu Guanzhilin prior to November 10, 2008. The Acquirer
will examine these financial statements and the Jiangsu Companies shall
actively assist in such
examination.
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(4)
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At
least 18 of the branches of Jiangsu Guanzhilin
(including those already established and to be established, as listed in
Schedule 3, hereinafter referred to as the “Branches of Jiangsu
Guanzhilin”) have obtained all the licenses, permits, approvals,
authorizations, exemptions, consents and recognitions needed for legally
and effectively operating at the corresponding places of business (the
“Completion of
Registration”) and have obtained the Value Added Tax invoices (if
needed for business).
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(5)
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The
Controlling Party and Suzhou Guanzhilin have caused the Transferors to
transfer the ownership of the domain ▇▇▇▇▇▇▇▇.▇▇▇.▇▇
and ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
to Jiangsu Guanzhilin and the amendment agreements to be signed with
software providers with respect to Boyuan ERP System and Golden Abacus
Financial System, under which the relevant contractual rights and
obligations with respect to such systematical software are legally
transferred to Jiangsu
Companies.
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8
Exhibit
10.36
English Translation of
Chinese Language Agreement
Article 12 The
portion of the net assets in excess of RMB 40,000,000 as set forth in the
consolidated financial statements of the Jiangsu Companies, examined by the
Acquirer, as of the Audit Reference Date, shall belong to the Controlling Party
and/or Suzhou Guanzhilin. Within a reasonable period after the
issuance date of the audit report ended March 31, 2009, the Controlling Party
and the Acquirer shall negotiate to legally transfer the portion of the net
assets in excess of RMB 40,000,000; with respect to the portion of the net
assets which falls below RMB 40,000,000, the Controlling Party and Suzhou
Guanzhilin shall bear joint and several liability to make up the difference
prior to the payment of the third installment of the Acquisition Consideration,
or the Acquirer may directly deduct the difference from the third installment of
the Acquisition Consideration.
Article 13 If
the net assets value set forth in the consolidated financial statements of the
Jiangsu Companies as of the Audit Reference Date, as confirmed by the audit
report ended March 31, 2009 (the Parties agree that, except for the down
payment, deposit, cash pledge and other amounts of a similar nature paid to
operators, lessors of retail stores and others during the ordinary course of
business, any receivable in the consolidated financial statements as at the
Audit Reference Date that is still not recovered by March 31, 2009 shall be
deducted from the net asset value; the amount after deduction shall be the
“Audited Net Asset
Value”), is inconsistent with the net assets value as of the Audit
Reference Date submitted by the Transferors to the Acquirer for its examination,
then the audit report shall prevail. The portion in excess of RMB
40,000,000 for the Audited Net Asset Value shall belong to the Controlling Party
and/or Suzhou Guanzhilin and, within a reasonable period, the Controlling Party
and the Acquirer shall negotiate to legally transfer the portion of the Audited
Net Asset Value in excess of RMB 40,000,000; with respect to the portion of the
Audited Net Asset Value which falls below RMB 40,000,000, the Controlling Party
and Suzhou Guanzhilin shall bear joint and several liability to make
up the difference within ten days after such difference is confirmed, or the
Acquirer may directly deduct the difference from the fourth installment of the
Acquisition Consideration. The audit report shall be issued no later
than June 30, 2009.
Article 14 If,
on the payment date of the third installment of the Acquisition Consideration,
the number of registered Branches of Guanzhilin is less than 18, the third
installment shall be paid in proportion to the number of registered branches
pursuant to the following formula: the third installment ´ number of registered
Branches of Guanzhilin ¸ 25. The
remaining part of the third installment shall be paid in a lump sum when all 25
Branches of Guanzhilin have been registered.
Article 15 The
Parties agree that the Audited Year for Operating Profit Index shall commence
November 2008. The First Audited Year shall begin November 1, 2008
and end December 31, 2009, and the Second Audited Year shall begin January 1,
2010 and end December 31, 2010.
9
Exhibit
10.36
English Translation of
Chinese Language Agreement
Article 16 Subject
to the Chinese accounting standards, the financial accounting and management of
the Jiangsu Companies shall be in conformity with the accounting system,
accounting methods, financial processes and internal control procedures (with
the exception of the business operation system, rules, processes and procedures
unrelated to financial accounting and audits) required by the
Acquirer. The balance sheets, income statements and other financial
reports prepared by the Jiangsu Companies and submitted to their respective
boards of directors (including the reports and consolidated reports of Jiangsu
Guanzhilin and its subsidiaries) shall be confirmed and signed by both the
financial personnel assigned by the Acquirer and the financial personnel of the
Jiangsu Companies. If the Jiangsu Companies fail to comply with the
requirements of the Acquirer, the Acquirer may refuse to sign the financial
reports. The Controlling Party agrees to cause the Jiangsu Companies
to assist the Acquirer in implementing uniform financial and ERP management
systems within twelve months after the execution of this Agreement, so as to
standardize and manage financial and audit operations.
If the
Controlling Party and/or the Jiangsu Companies refuse to comply with the
requirements of the Acquirer and, as a result thereof, the auditor refuses to or
is unable to issue an unqualified audit report for the First Audited Year by
June 15, 2010 and for the Second Audited Year by June 15, 2011, it shall be
deemed that the Transferors and the Controlling Party have materially breached
this Agreement and the Acquirer may, at its option:
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(1)
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Terminate
the Acquisition Framework Agreement, this Agreement, the Operation and
Management Agreement, the Supplemental Agreement to the Operation and
Management Agreement, the Equity Transfer Agreement and the Supplemental
Equity Transfer Agreement, as well as other transaction documents in
connection with this acquisition. The Controlling Party and
Suzhou Guanzhilin shall bear joint and several liability to refund all the
Acquisition Consideration paid by the Acquirer, pay liquidated damages to
the Acquirer at an annual interest rate of 6.93% and compensate other
actual losses incurred by the Acquirer (including, but not limited to,
audit expenses, due diligence investigation expenses and appraisal
expenses, but excluding the possible loss of obtainable gains of the
Acquirer and the compensation by the Acquirer to any third party (if
any));
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(2)
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Adjust
the operation and management organization of Jiangsu Guanzhilin,
including, but not limited to, the powers to appoint the chairman and
nominate the general manager as stipulated in the Operation and Management
Agreement (for example, the Acquirer may directly appoint the chairman,
general manager and/or other senior management personnel). Such
adjustment of operation and management shall exempt the Controlling Party
from guaranteeing the Operating Profit Index for the remaining portion of
the Operating Profit Index Lockup Period, and the Acquisition
Consideration under such circumstance shall be calculated based on RMB
316,200,000.
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10
Exhibit
10.36
English Translation of
Chinese Language Agreement
The above
options shall be selected at the discretion of the Acquirer. If the
Acquirer selects to terminate the transaction, then the Controlling Party and
Suzhou Guanzhilin shall refund all of the Acquisition Consideration paid, pay
liquidated damages, and compensate the Acquirer for its actual losses within ten
days upon receipt of such notice. Within ten days upon receipt of all
the refunded and compensated amounts above, the Acquirer shall transfer its 51%
equity in Jiangsu Guanzhilin to the Controlling Party and/or the party
designated by the Controlling Party, free of charge, amend and sign the articles
of association of Jiangsu Guanzhilin, handle the formalities of the amendment
registration with the administration of industry and commerce, and refund the
collected dividends (interest excluded) and/or distributable but waived
dividends. If the Acquirer selects to make adjustments to the
operation and management, the Controlling Party shall, within ten days upon
receipt of such notice, sign and cause to be signed resolutions of a
shareholders’ meeting and board meeting with respect to the appointment of a new
chairman, general manager and/or other senior management personnel, cause to be
amended and signed the articles of association of Jiangsu Guanzhilin and handle
the formalities of the amendment registration with the administration of
industry and commerce. The Acquirer shall pay the difference between
the total Acquisition Consideration and the Acquisition Consideration already
paid in a lump sum upon completion of all the above matters.
Article 17 The
Controlling Party shall cause the Jiangsu Companies to reasonably assist the
auditor (including Deloitte and any other auditor engaged by the Acquirer to
issue an audit report of the consolidated financial statements prepared by the
Acquirer) in the audit and review, reasonably assist the intermediary
institutions (such as a legal and appraisal agency) engaged by the Acquirer for
listing and other financing purposes in the due diligence investigation and
appraisal, and timely provide complete, accurate and true data, information,
documents and other related items so that the audit report, legal opinion,
appraisal report, or other document can be issued in time.
Article 18 This
Agreement is an annex to and forms an integral part of the Acquisition Framework
Agreement. Except for the above modifications and supplements made in
this Agreement, no other provisions of the Acquisition Framework Agreement has
been modified or adjusted, and parties to the Acquisition Framework Agreement
shall perform the Acquisition Framework Agreement. Where the
Acquisition Framework Agreement conflicts with this Agreement, this Agreement
shall prevail.
Article 19 This
Agreement has four (4) counterparts, two (2) for the Acquirer and two (2) for
the Controlling Party (representing the Transferors). Each
counterpart shall have the same legal force.
The
following schedules and annexes are made an integral part of this
Agreement:
11
Exhibit
10.36
English Translation of
Chinese Language Agreement
Schedule
1 List of the Transferors’ Companies/Individual Industrial and
Commercial Households
Schedule
2 List of the Hangsu Subsidiaries
Schedule
3 List of the Branches of Guanzhilin
Signature
page to the Supplemental Agreement to the Acquisition Framework
Agreement
12
Exhibit
10.36
English Translation of
Chinese Language Agreement
Signature
page to the Supplemental Agreement to the Acquisition Framework
Agreement
|
The
Acquirer: Beijing Feijie Investment Co., Ltd (Official
Seal)
|
||
|
Signature:
|
/s/ Dongping Fei
|
|
|
Name
of Authorized Representative: Dongping Fei
|
||
13
Exhibit
10.36
English Translation of
Chinese Language Agreement
Signature
page to the Supplemental Agreement to the Acquisition Framework
Agreement
|
The
Controlling Party: Zhuqun Peng
|
||
|
Signature:
|
/s/ Zhuqun Peng
|
|
|
Identity
card number: 320626197005208816
|
||
14
Exhibit
10.36
English Translation of
Chinese Language Agreement
Signature page to the Supplemental
Agreement to the Acquisition Framework Agreement
The
Transferors:
|
Signature of authorized representative:
|
/s/ Zhuqun Peng
|
|
Name
of Authorized Representative: Zhuqun
Peng
|
|
15