OPTION AGREEMENT BY AND AMONG ORIENTAL INTRA-ASIA ENTERTAINMENT (CHINA) LIMITED SHUDONG XIA ZHIPING ZHANG ZHIBIN LAI AND WEI GAO
Exhibit
10.9
BY
AND AMONG
ORIENTAL
INTRA-ASIA ENTERTAINMENT (CHINA) LIMITED
▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
AND
▇▇▇
▇▇▇
CONTENTS
|
Clause
|
Page
|
|
|
1.
|
GRANT
OF OPTION
|
1
|
|
2.
|
EXERCISE
OF OPTION AND COMPLETION OF TRANSACTION
|
1
|
|
3.
|
FULFILMENT
OF OPTION
|
3
|
|
4.
|
REPRESENTATIONS
AND WARRANTIES
|
4
|
|
5.
|
TAX
|
7
|
|
6.
|
LIABILITIES
FOR BREACH OF CONTRACT
|
7
|
|
7.
|
APPLICABLE
LAW AND SETTLEMENT OF DISPUTES
|
7
|
|
8.
|
CONFIDENTIALITY
|
8
|
|
9.
|
SUPPLEMENTARY
PROVISIONS
|
8
|
|
APPENDIX
A FORM OF AGREEMENT ON TRANSFER OF
EQUITY INTEREST
|
12
|
|
1. DEFINITIONS
AND INTERPRETATIONS
|
13
|
|
2. REPRESENTATIONS
AND WARRANTIES
|
14
|
|
3. ASSIGNMENT
OF EQUITY INTEREST
|
14
|
|
4. SUPPLEMENTARY
PROVISIONS
|
15
|
|
ANNEX
1 FORM OF RESOLUTION OF SHAREHOLDERS' MEETING
|
19
|
|
ANNEX
2 FORM OF POWER OF ATTORNEY
|
20
|
|
APPENDIX
B FORM OF WAIVER OF RIGHT OF FIRST
REFUSAL
|
21
|
This
Option Agreement (this "Agreement") is
entered into by the following parties on February 3, 2009 in Beijing, the
People’s Republic of China ("China"):
|
(1)
|
Oriental
Intra-Asia Entertainment (China) Limited, a company established in China
and having its registered address at Room 1009, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ District, Beijing
China, ("Oriental");
|
and
|
(2)
|
▇▇▇▇▇▇▇
▇▇▇, whose Chinese ID number is 422125721020561, with his principal
domicile at ▇▇▇▇ ▇-▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇,▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇;
|
▇▇▇▇▇▇▇
▇▇▇▇▇, whose Chinese ID number is 11010819690428187X, with his principal
domicile at ▇▇▇▇
▇▇-▇-▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇;
and
▇▇▇▇▇▇
▇▇▇, whose Chinese ID number is 35262719731111001X, with his principal domicile
at Room
2010, ▇▇.▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇,
whose Chinese ID number is ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, with her principal domicial at
Room 307, ▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ #▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ (collectively as “Shareholders” and individually as
“Shareholder”)
(hereinafter
the parties referred to individually as a "Party" and
collectively as the "Parties".)
WHEREAS,
|
(A)
|
Shareholders
collectively hold 100% of the equity interest of China TransInfo
Technology Group Co., Ltd. (“Group”) (the “Equity Interest”);
and
|
|
(B)
|
The
Parties agree to enter into this
Agreement.
|
NOW THEREFORE, the Parties
hereby agree as follows:
|
1.
|
GRANT
OF OPTION
|
|
1.1
|
Option
|
Shareholders
grant to Oriental the option (the “Option”) to purchase the Equity Interest, at
the exercise price equal to the lowest possible price permitted by the PRC
laws.
|
2.
|
EXERCISE
OF OPTION AND COMPLETION OF
TRANSACTION
|
|
2.1
|
Time of
Exercise
|
|
|
2.1.1
|
Shareholders
agree that, subject to compliance with legal restrictions on foreign
investment under applicable laws of China, Oriental may exercise the
Option in whole or in part to acquire all or part of the Equity Interest,
at any time after the signing of this
Agreement.
|
1
|
2.1.2
|
For
the avoidance of doubt, Shareholders hereby agree that Oriental may
exercise the Option, without any limits on the frequency of its exercise,
until Oriental acquires all of the Equity
Interest.
|
|
2.1.3
|
Shareholders
agree that Oriental may designate a third party to exercise the Option on
its behalf, provided that Oriental shall give a 3-day prior written notice
to Shareholders.
|
|
2.2
|
Assignment
|
Shareholders
agree that Oriental may assign all or part of the Option to any third
party. In the event of any such assignment and upon written notice of
such assignment from Oriental to Shareholders, the Option may be exercised by
such third party pursuant to the terms and conditions of this Agreement. Such
third party shall be deemed to be a party to this Agreement and shall assume
Oriental's rights and obligations under this Agreement.
|
2.3
|
Notice
Requirements
|
|
|
2.3.1
|
If
Oriental intends to exercise the Option, it shall issue an irrevocable
written notice to Shareholders no later than 3 days prior to each
Completion Date (as defined below),
specifying:
|
|
|
2.3.1.1
|
effectiveness
date of the purchase ("Completion
Date");
|
|
|
2.3.1.2
|
name
of the party registering the Equity
Interest;
|
|
|
2.3.1.3
|
percentage
of the Equity Interest to be purchased from
Shareholders;
|
|
|
2.3.1.4
|
method
of payment; and
|
|
|
2.3.1.5
|
related
authorization documents, such as the document authorizing the third party
to exercise the Option.
|
|
|
2.3.2
|
For
the avoidance of doubt, the Parties expressly agree that Oriental has the
right to exercise the Option and to decide whether or not to register the
Equity Interest in a third party's
name.
|
|
2.4
|
Appointment of
Director and Senior Management
Personnel
|
After the
execution of this Agreement, Oriental shall have the right to nominate persons
to Group to be appointed as directors and senior management personnel (including
but not limited to general manager, deputy general manager, financial
controller, marketing director, technology director). Each Shareholder shall, to
the extent applicable PRC law requires a shareholder vote, vote his shares of
Group to appoint the persons nominated by Oriental to hold the positions as
directors of Group, and vote its shares to instruct the executive director of
Group to appoint the persons nominated by Oriental to hold the positions as
senior management of Group.
2
|
2.5
|
Completion of
Transactions
|
On the
Completion Date, Oriental shall pay to Shareholders the exercise price to
purchase the Equity Interest pursuant to Section 1.1 and Shareholders shall
acknowledge the receipt and sufficiency of the consideration.
|
3.
|
FULFILMENT
OF OPTION
|
|
3.1
|
Agreement on Transfer
of Equity Interest
|
When
signing and delivering this Agreement, Shareholders shall at Oriental's request
sign (or, in the case of the waiver letter, use commercially reasonable efforts
to procure the execution of) and deliver one or more agreement(s) for the
transfer of equity interest as set out in the Appendix A hereto ("Equity Transfer
Agreement") and other necessary documents, including the waiver letter in
the form of Appendix 3 ("Ancillary Documents")
intended to cause all or part of Equity Interest to be effectively transferred
to Oriental or its designated person. The Equity Transfer Agreement
and Ancillary Documents shall be held in the custody of Oriental. On
the Completion Date, when Oriental exercises the Option and pays the price for
the Equity Interest, Oriental shall promptly deliver the Equity Transfer
Agreement and Ancillary Documents relating to such Equity Interest to its
designated person who shall be entitled to insert the name of the transferee (if
not already done so), date the signed Equity Transfer Agreement and Ancillary
Documents and submit the same to the relevant authorities in order to give full
effect to the transfer of the Equity Interest.
|
3.2
|
Resolution of
Shareholders' Meeting
|
Notwithstanding
the provisions of the above Article 3.1, at the time of the signing and delivery
of this Agreement, Shareholder shall at Oriental's request sign and deliver one
or more resolution(s) of the shareholders' meeting of Group, substantially in
the form of Annex 1 of Appendix A hereto (each referred to as a "Resolution"). The
Resolution shall approve the following matters:
|
|
3.2.1
|
completion
of the transfer of all or part of the Equity Interest to Oriental or its
designated person; and
|
|
|
3.2.2
|
other
reasonable matters that Oriental may
require.
|
Each
Resolution shall be held in the custody of Oriental. On each
Completion Date when Oriental exercises the Option and pays the price for the
Equity Interest, Oriental or its designated person shall date the Resolution as
of the date of exercise.
3
4.
REPRESENTATIONS
AND WARRANTIES
|
4.1
|
Representations and
Warranties
|
Shareholders
represent and warrant to Oriental:
|
|
4.1.1
|
each
Shareholder has full authority to sign this
Agreement;
|
|
|
4.1.2
|
this
Agreement constitutes a valid and binding obligation of Shareholders,
enforceable in accordance with its
terms;
|
|
|
4.1.3
|
the
signing of this Agreement and the performance of any of his obligations
hereunder neither breaches any laws, regulations or contracts binding upon
him, nor requires any authorization or approval from the
government;
|
|
|
4.1.4
|
to
the best of his knowledge, no Shareholder is involved in any lawsuit,
arbitration or other juridical or administrative proceedings which may
have a material and adverse effect upon this Agreement and performance
hereof;
|
|
|
4.1.5
|
they
have disclosed to Oriental all documents issued by any governmental
authority that may have a material adverse effect upon the performance of
the obligations hereunder;
|
|
|
4.1.6
|
other
than the pledge of Equity Interest in favor of Oriental (or its designated
third party), the Equity Interest held by Shareholders in Group is free of
any lien, mortgage, pledge or third party's
rights;
|
|
|
4.1.7
|
except
in favor of Oriental (or its designated third party), the Equity Interest
held by Shareholders shall remain intact, and is free of any lien,
mortgage, pledge or third party's right, and Shareholders will not
transfer, grant, pledge or otherwise dispose of his Equity
Interest;
|
|
|
4.1.8
|
the
Option granted by Shareholders to Oriental is an exclusive right, and the
Option or any similar right will not be granted to any third party in any
way and no rights or obligations exist that would in any way impair
Oriental's rights under this
Agreement.
|
Shareholders
further represent and warrant to Oriental that they collectively own 100% of the
Equity Interests of Group.
The
Parties hereby agree that as of each Completion Date, the representations and
warranties set out from Article 4.1.1 to Article 4.1.8 shall be repeated, and
shall be deemed to be given as of such Completion Date.
4
|
4.2
|
Undertakings
|
Shareholders
undertake to Oriental that:
|
|
4.2.1
|
they
will complete the formalities necessary for registering Oriental and its
designated person as the lawful shareholder of Group, including but not
limited to, assisting Oriental in inserting the name of the transferee in
the Equity Transfer Agreement, dating the signed Equity Transfer Agreement
and submitting the Equity Transfer Agreement and Ancillary Documents to
the relevant industry and commerce administration department for the
purpose of amending the articles of association and updating the
shareholders' register, and other alteration
formalities.
|
|
|
4.2.2
|
they
shall take all necessary actions to execute all necessary documents and
carry out all necessary registrations within Shareholders' control
(including registration with the Ministry of Information Industries or its
local branches) to transfer the Equity Interest in accordance with
applicable laws upon the exercise of the
Option.
|
|
|
4.2.3
|
they
will not seek to influence the management of Group in any manner, and
without limiting the
foregoing:
|
|
|
4.2.3.1
|
they
will not request Group to distribute profits, funds, assets or property to
Shareholders or any of their
Affiliates.
|
|
|
4.2.3.2
|
if
they receive any dividends from Group with respect to the Equity Interest
or cash dividends, Shareholders shall pay to Oriental an amount equal to
such dividends within 7 days
thereafter.
|
|
|
4.2.3.3
|
they
will not engage in the following activities and not approve in their
capacities as shareholders (without the prior written consent of Oriental)
the engagement of Group in any of the following activities
unless the prior written consent of Oriental is
obtained:
|
|
|
(a)
|
to
create or undertake debts that are not in the ordinary course of business
of Group, or are in the ordinary course of the business
of Group but are in excess of
US$5,000;
|
|
|
(b)
|
to
create or undertake any mortgage, pledge or any other type of encumbrance
on any of Group's existing properties or properties acquired in the
future;
|
|
|
(c)
|
to
acquire assets of any third party on behalf of Group, or to
execute any agreement, arrangement, commitment or memorandum for the
same;
|
|
|
(d)
|
to
sell, lease or otherwise dispose of any assets of Group, or to
execute any agreement, arrangement, commitment or memorandum for the
same;
|
5
|
|
(e)
|
to
borrow or lend money to any third party on behalf of Group, or
to execute any agreement, arrangement, commitment or memorandum for the
same;
|
|
|
(f)
|
to
assume any obligation, give a guarantee or endorsement for any third party
on behalf of Group or assume responsibility in whatever form for any third
party's obligation on behalf of Group, or to execute any
agreement, arrangement, commitment or memorandum for the
same;
|
|
|
(g)
|
to
approve the annual budget and annual business plan and any material
deviations thereof;
|
|
|
(h)
|
to
make any capital expenditure by Group other than in the
ordinary course of its business or greater than an aggregate of US$25,000
in any 12 month period;
|
|
|
(i)
|
to
commit any act that may endanger the legitimate existence or commercial
interest of Group;
|
|
|
(j)
|
to
take any action that, according to the effective articles of association
of Group, requires a unanimous consent of all shareholders or
the executive director
of Group;
|
|
|
(k)
|
to
cause Group to engage in any business which is not expressly
specified in its business
license;
|
|
|
(l)
|
when
exercising his rights in the capacity as a shareholder of Group
(including but not limited to the exercise of his voting rights), to adopt
any resolution or otherwise take any shareholder action that conflicts
with or jeopardises the rights and interests of Oriental or its Affiliates
or direct or indirect parent;
and
|
|
|
4.2.4
|
They
will provide Oriental with information on Group's business operations and
financial condition which he is entitled to receive in their capacities as
shareholders at Oriental's request (excluding information provided
by Group).
|
|
|
4.2.5
|
They
will immediately notify Oriental of the occurrence or possible occurrence
of any litigation, arbitration or administrative proceedings relating to
Group's assets, business and revenue of which they may become
aware.
|
|
|
4.2.6
|
At
Oriental's written request, Shareholders will approve in their capacities
as shareholders any action of Group that is not in violation of any
applicable laws.
|
For
purposes of this Clause 4.2, "Affiliate" means, in respect of an entity, any
legal entity that directly or indirectly controls, is controlled by or is under
the common control of the first mentioned entity. For the purposes of this
Agreement, "control" means the power, directly or indirectly, to direct the
management and policies of such entity.
6
5. TAX
|
5.1
|
Tax
|
Oriental
shall reimburse Shareholders or directly pay to the appropriate tax authorities
all of Shareholders' taxes that may arise from the execution and performance of
this Agreement. Oriental shall bear any of its taxes that may arise
from the execution and performance of this Agreement.
|
6.
|
LIABILITIES
FOR BREACH OF CONTRACT
|
|
6.1
|
Shareholders'
liability for breach
|
The sole
remedy available to Oriental for the breach by Shareholders of any of its
representations, warranties, undertakings or obligations under this Agreement
shall be the exercise of the Option.
|
7.
|
APPLICABLE
LAW AND SETTLEMENT OF DISPUTES
|
|
7.1
|
Applicable
Law
|
The
execution, validity, interpretation, performance of this Agreement and
resolution of disputes hereunder shall be governed by the laws of
China.
|
7.2
|
Consultation
|
In case
of disputes resulting from the interpretation or performance of this Agreement,
the Parties shall attempt to solve such disputes through friendly consultation
or via mediation by a neutral third party. If such dispute fails to be solved
within 30 days after the commencement of consultation, either party may submit
such disputes for arbitration.
|
7.3
|
Arbitration
|
|
|
7.3.1
|
Any
dispute or difference of any kind whatsoever arising out of or in
connection with this Agreement, including any question in connection with
the existence, construction, interpretation, validity, termination or
implementation of this Agreement, shall be submitted to China
International Economic and Trade Arbitration Commission ("CIETAC"), for
arbitration in Beijing which shall be conducted in accordance with
CIETAC's rules.
|
|
|
7.3.2
|
The
arbitration tribunal shall comprise of three (3) arbitrators. Each Party
shall be entitled to appoint one (1) arbitrator and the arbitrators so
appointed shall appoint a third (3rd)
arbitrator who shall preside as Chairman. The Chairman shall not be a
citizen or national of the same country as either of the
Parties.
|
|
|
7.3.3
|
The
language to be used in any arbitral proceedings shall be
Chinese.
|
|
|
7.3.4
|
The
costs of arbitration shall be borne by the losing Party, unless otherwise
determined by the arbitration
award.
|
7
|
|
7.3.5
|
The
Parties further acknowledge that monetary damages alone shall not
adequately compensate Oriental for the breach of Shareholders'
undertakings in this Agreement and therefore agree that if a breach or
threatened breach of any such undertaking occurs, Oriental shall be
entitled to apply or petition for, and Shareholders shall not resist,
object or challenge, injunctive relief compelling specific performance of
such undertakings or immediate cessation of such actions in order to be in
compliance with the terms of this Agreement in any competent court of
China.
|
|
8.
|
CONFIDENTIALITY
|
|
8.1
|
Confidential
Information
|
This
Agreement and its appendixes attached hereto shall be confidential. Neither
party shall disclose this Agreement and its appendixes attached hereto to any
third party (except for the disclosure only for the purpose of the above Article
2.2 and with the prior written consent of the Parties).
|
8.2
|
Exception
|
If
certain disclosure is expressly required by law, court, arbitral tribunal or
competent administration authority, such disclose made by either party shall not
be deemed a breach of the above Article 8.1.
|
9.
|
SUPPLEMENTARY
PROVISIONS
|
|
9.1
|
Term
|
This
Agreement shall come into force from the date of the execution of this Agreement
by the Parties or their authorized representative until the date when Oriental
obtains all the Equity Interest, subject to a maximum term of 20 years, which
term shall be automatically extended to equal the term (as extended thereunder)
of the Exclusive Technical
Consulting and Service Agreement (the “Service Agreement”), between Group
and Oriental, dated February 3, 2009, if that Service Agreement is still in
place and such extension does not violate any applicable law.
|
9.2
|
Entire
Agreement
|
|
|
9.2.1
|
This
Agreement and its appendixes constitute the entire agreement between the
Parties with respect to the above subject matter, and shall supersede all
previous discussions, consultations and agreements. This Agreement can be
amended only by a written agreement jointly signed by the
Parties.
|
|
|
9.2.2
|
The
appendixes attached hereto constitute an inseparable part of this
Agreement, and have the same legal force as this
Agreement.
|
8
9.3 Notice
|
|
9.3.1
|
Unless
notified by the other party of address change, all notices or other
correspondences required in performing this Agreement shall be delivered
by hand, express delivery, fax or registered mail to the following
addresses:
|
Oriental:
Address:
Room 1601 E-wing Center, ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇.
Tel:
▇▇▇-▇▇▇▇▇▇▇▇
Fax:
▇▇▇-▇▇▇▇▇▇▇▇
Shareholders:
Address: Room 717 E-wing
Center, ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇.
Tel:
▇▇▇-▇▇▇▇▇▇▇▇
Fax:
▇▇▇-▇▇▇▇▇▇▇▇
Notices and correspondences shall be deemed to be served if:
|
|
9.3.1.1
|
sent
by fax: the time displayed on the transmission record, however, if the
displayed time is after 5:00 pm of the sending date, or the sending day is
not a business day of the location where the recipient is located, the
effective delivery date shall be the next business
day;
|
|
|
9.3.1.2
|
sent
by hand delivery (including courier): the day when the recipient signs and
accepts the delivery;
|
|
|
9.3.1.3
|
sent
by registered mail, the fifteenth day from the date when the post office
issues a receipt thereof.
|
|
9.4
|
Binding
Force
|
This
Agreement is binding upon the Parties and their successors, representatives and
assigns.
|
9.5
|
Language and
Counterpart
|
This
Agreement is written in English and Chinese. In the event of any
discrepancy between the two versions, the English version shall
prevail. This Agreement shall be executed in [two (2)] originals in
English and [two (2)] originals in Chinese, with each Party holding one (1)
original in each language.
9
|
9.6
|
Calendar Day and
Business Day
|
Any
reference to a day in this Agreement means a calendar day. Business day means
any day on which commercial banks in China are open for business.
|
9.7
|
Headings
|
The
headings contained herein are for convenience only and do not affect the
interpretation of this Agreement.
|
9.8
|
Singular and Plural
Form
|
As
required by the context, words importing the singular include the plural and
vice versa.
|
9.9
|
Matters Not
Covered
|
Matters
not covered in this Agreement shall be settled by the Parties through
consultation, in accordance with the provisions of the laws of
China.
|
9.10
|
Representations,
Warranties, Undertakings and Obligations to
Survive
|
The
representations, warranties, undertakings and obligations of the Parties
provided in this Agreement, or made by or on behalf of a Party, shall be in full
force and effect and shall remain valid after the delivery of the Equity
Interest and payment of considerations, regardless of any investigation (or
statement on any investigation result) made by or on behalf of a
Party.
[Signature Page
Follows]
10
IN WITNESS WHEREOF, this
Agreement is signed by the duly authorized representatives of the Parties as of
the date first written above.
|
Oriental
Intra-Asia Entertainment (China) Limited
|
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇ |
|
Authorized
representative: ▇▇▇▇▇▇▇ ▇▇▇
|
|
|
Name:
|
|
|
Title:
Legal Representative
|
|
|
Company
seal:
|
|
|
Shareholders:
|
| /s/ ▇▇▇▇▇▇▇ ▇▇▇ |
|
▇▇▇▇▇▇▇
▇▇▇
|
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
|
/s/
▇▇▇▇▇▇ ▇▇▇
|
|
▇▇▇▇▇▇
▇▇▇
|
|
▇▇▇
▇▇▇
|
|
▇▇▇
▇▇▇
|
11
Appendix
A
Form
of agreement on transfer of equity interest
Agreement
on Transfer of Equity Interest
▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇
▇▇▇
and
[*]
12
This
Agreement on Transfer of Equity Interest ("Equity Transfer
Agreement") is entered into by the following parties on ____________, in
Beijing, the People's Republic of China ("China"):
|
(1)
|
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇, (the "Assignors");
and
|
|
(2)
|
[*], [*] (the "Assignee").
|
The
Assignor and the Assignee are hereinafter referred to individually as a "Party" and
collectively as the "Parties".
WHEREAS,
|
A.
|
The
Assignors are shareholders of China TransInfo Technology Group Co., Ltd.
("Group"), which is a limited liability company established on May 26,
2008 pursuant to the PRC Laws (as defined
below).
|
|
B.
|
The
Assignors collectively own 100% of the equity interest in
Group.
|
|
C.
|
Subject
to the terms and conditions of this Equity Transfer Agreement, the
Assignors now intend to assign to the Assignee, and the Assignee is
willing to accept from the Assignors, all the equity interest ("Equity
Interest") of the Assignor
in Group.
|
NOW THEREFORE, the Parties
hereby agree as follows:
|
1.
|
DEFINITIONS
AND INTERPRETATIONS
|
|
1.1
|
Definitions
|
Unless
otherwise agreed herein (as defined below), words or expressions contained in
this Equity Transfer Agreement shall have the same meaning as those defined in
the Option Agreement (the "Agreement"), dated as
of ______, 2009 between Oriental, a company organized under the laws of China
(the "Oriental") and the
Assignor.
"Effective Date" means
the date of this Agreement, or if government or regulatory approvals are
necessary to effectuate the transfer, the date on which all such approvals are
obtained.
"PRC Laws" means the PRC laws and
regulations that have been promulgated and now remain in force.
"Resolution of Shareholders'
Meeting" means the written resolution of the shareholders' meeting of
Group, pursuant to which the shareholders agree that the Equity Interest shall
be assigned in accordance with the Equity Transfer Agreement and, in the case of
transfer of partial Equity Interest, waive their rights of first refusal
regarding the Equity Interest.
|
1.2
|
Interpretation
|
In this
Agreement, headings are for convenience only and do not affect the
interpretation of this Agreement. A reference to an Article or Appendix herein
is a reference to that Article or Appendix of the Equity Transfer Agreement.
Words importing the singular include the plural and vice versa. Unless
otherwise provided herein, a reference to day, month or year means a calendar
day, month or year. Business day refers to the day on which commercial banks in
China are open for business. Masculine words herein include the feminine meaning
and vice versa.
13
|
2.
|
REPRESENTATIONS
AND WARRANTIES
|
|
2.1
|
General
representations
|
Each of
the Parties hereby represents and warrants to the other party that it has full
capacity and authorization to execute this Equity Transfer Agreement, and
perform its obligations under this Equity Transfer Agreement, subject to
compliance with legal restrictions on foreign investment under applicable PRC
law.
|
2.2
|
Assignors
|
The
Assignors further represent and warrant that:
|
|
2.2.1
|
they
are the legitimate holders of the Equity
Interest;
|
|
|
2.2.2
|
except
for the pledge under the Equity Pledge Agreement dated as of ______, 2009
by and among the Assignors and Group, such Equity Interest is free of any
security interest.
|
|
3.
|
ASSIGNMENT
OF EQUITY INTEREST
|
|
3.1
|
Assignment of equity
interest
|
The
Assignors hereby assign all of the Equity Interest to the Assignee. The Assignee
agrees to accept such Equity Interest from the Assignors.
|
3.2
|
Assignment of rights
and obligations
|
As at the
Effective Date, all rights and obligations in relation to the Equity Interest
shall be assigned from the Assignors to the Assignee.
|
3.3
|
Necessary
measures
|
The
Assignors undertake to execute all necessary documents and take all necessary
measures in a timely manner, so as to give effect to this Equity Transfer
Agreement, including but not limited to the following:
|
|
3.3.1
|
execute
the resolution of shareholders' meeting substantially in the form of Annex
1; and provide the Assignee with a copy of the resolution of shareholders'
meeting; and
|
|
|
3.3.2
|
complete
any procedures within its control necessary for the full effectiveness of
the Equity Transfer Agreement pursuant to PRC Laws, including but not
limited to, obtaining the approval from the competent bureau of commerce
in the case that the Assignee is a foreign investor, completing the
registration of the change in shareholder with the relevant industry and
commerce administration department, updating the shareholders' list of
Group and delivering the updated shareholders' list to the
Assignee.
|
14
|
3.4
|
Cooperation with the
Assignee
|
The
Assignors further undertake:
|
|
3.4.1
|
if
the formalities provided in Article 3.3.2 are delayed, the Assignors shall
promptly notify the Assignee of the reason for such delay and the revised
Effective Date; and
|
|
|
3.4.2
|
fully
assist the Assignee in performing the Equity Transfer Agreement, including
but not limited to providing the Assignee with access to the related
documents or information.
|
|
3.5
|
Power of
attorney
|
Each of
the Assignors further undertakes that, as of the date first written above, he
has full authority to entrust an appropriate entity or individual to, on his
behalf, handle all matters related to this Equity Transfer Agreement (including
but not limited to the matters related to this Article 3.5), in the event of the
Assignor's death, emigration, incapacity or other failure to perform his
obligations under this Equity Transfer Agreement. The above power of attorney
shall be substantially in the form of Annex 2, and a copy of such power of
attorney shall be provided to the Assignee.
|
4.
|
SUPPLEMENTARY
PROVISIONS
|
|
4.1
|
Notice and
service
|
|
|
4.1.1
|
All
notices and communications between the Parties shall be in writing, either
in English or Chinese, and delivered by fax, hand (including express
delivery) or registered mail to the following appropriate
addresses:
|
Assignors:
▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇ ▇▇▇
Address:
Room 1601 E-wing Center, ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇.
Telephone:
▇▇▇-▇▇▇▇▇▇▇▇
Fax:
▇▇▇-▇▇▇▇▇▇▇▇
Assignee:
[*]
Address:
[*]
Tel:
[*]
Fax:
[*]
Recipient:
[*]
15
|
4.2
|
Time of
service
|
Notices
and communications shall be deemed to be served if:
|
|
4.2.1
|
sent
by fax: the time displayed on the transmission record, however, if the
displayed time is after 5:00 pm of the sending date, or the sending day is
not a business day of the location where the recipient is located, the
effective delivery date shall be the next business
day;
|
|
|
4.2.2
|
sent
by hand delivery (including courier): the day when the recipient or any
staff at the recipient's location signs and accepts the delivery;
or
|
|
|
4.2.3
|
Sent
by registered mail, the third day after the date when the post office
issues a receipt thereof.
|
|
4.3
|
Amendment
|
The
provisions of this Equity Transfer Agreement can be waived, revised or amended
only by a written instrument signed by the Parties.
|
4.4
|
Non-waiver
|
The
failure by either party to exercise or its delay in exercising any right under
this Equity Transfer Agreement shall not be deemed a waiver of such
right.
|
4.5
|
Severability
|
The
invalidity of any clause under this Agreement shall not affect the validity of
any other clauses unrelated to such clause.
|
4.6
|
Tax and
expenses
|
Each of
the Parties shall bear its respective taxes arising from the execution and
performance of this Agreement.
|
4.7
|
Successor
|
This
Equity Transfer Agreement is binding upon the respective successors and assigns
(if any) of the Parties, and upon any individual designated by the Assignors
when it becomes necessary for the Assignors to use the power of attorney
provided in the appendix in case of the occurrence of events set out in the
above Article 3.5.
|
4.8
|
Applicable
Law
|
The
execution, validity, interpretation, performance of this Equity Transfer
Agreement and resolution of disputes hereunder shall be governed by the PRC
laws.
|
4.9
|
Arbitration
|
|
|
4.9.1
|
Any
dispute or difference of any kind whatsoever arising out of or in
connection with this Agreement, including any question in connection with
the existence, construction, interpretation, validity, termination or
implementation of this Agreement, shall be submitted to China
International Economic and Trade Arbitration Commission ("CIETAC"), for
arbitration in Beijing which shall be conducted in accordance with
CIETAC's rules.
|
16
|
|
4.9.2
|
The
arbitration tribunal shall comprise of three (3) arbitrators. Each Party
shall be entitled to appoint one (1) arbitrator and the arbitrators so
appointed shall appoint a third (3rd)
arbitrator who shall preside as Chairman. The Chairman shall not be a
citizen or national of the same country as either of the
Parties.
|
|
|
4.9.3
|
The
language to be used in any arbitral proceedings shall be
Chinese.
|
|
|
4.9.4
|
The
costs of arbitration shall be borne by the losing Party, unless otherwise
determined by the arbitration
award.
|
|
4.10
|
Language
|
This
Equity Transfer Agreement is written in English.
[Signature Page
Follows]
17
IN WITNESS WHEREOF, this
Equity Transfer Agreement is signed by the duly authorized representatives of
the Parties as of the date first written above.
|
Signed by:
|
|
|
Assignor:
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Signed by:
|
|
|
Assignor:
▇▇▇▇▇▇ ▇▇▇
|
|
|
Signed by:
|
|
|
Signed by:
|
|
Assignee:
[*]
Authorized
representative: [*]
Name:
[*]
Title:
[*]
Common
seal: [*]
18
Annex
1
Form
of resolution of shareholders' meeting
China
TransInfo Technology Group Co., Ltd. ("Group")
This
written resolution of the shareholders' meeting of Group is formally adopted at
[*] on [*]
___________________________________________________________________________
|
1.
|
Attending
shareholders:
|
▇▇.
▇▇▇▇▇▇▇ ▇▇▇
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇.
▇▇▇▇▇▇ ▇▇▇
Ms.
▇▇▇ ▇▇▇
|
|
2.
|
The
matters related to transfer of equity interest provided in the Agreement
on Transfer of Equity Interest ("Equity Transfer
Agreement") entered into by and among ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇ (collectively “Shareholders”) and [*] on [*] were
discussed at the shareholders'
meeting.
|
|
3.
|
The
shareholders' meeting unanimously resolves
to:
|
|
|
(a)
|
confirm
and approve the Equity Transfer
Agreement;
|
|
|
(b)
|
approve
Shareholders to transfer their equity interest in Group to [*] pursuant to
the provisions of the Equity Transfer
Agreement;
|
|
|
(c)
|
approve
the amendment to the articles of association of Group;
and
|
|
|
(d)
|
[in
the case of transfer of partial equity interest by [] and [], [ ] hereby
waives his right of first refusal (entitled in accordance with
the PRC laws and the articles of association of the Company) regarding the
equity interest to be assigned by the other shareholders of the Company
under the Equity Transfer
Agreement.]
|
|
Signed
by:
|
Signed
by:
|
Signed
by:
|
Signed
by:
|
|||
|
Name:
▇▇▇▇▇▇▇ ▇▇▇
Date:
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇
Date:
|
Name:
▇▇▇▇▇▇ ▇▇▇
Date:
|
Name:
▇▇▇ ▇▇▇
Date:
|
19
Annex
2
Form
of power of attorney
Power
of Attorney
To Whom
It May Concern,
We, the
undersigned, founders and a shareholders of China TransInfo Technology Group Co.
Ltd. ("Group"), hereby entrust [ ] with full authority on
[ ], if any of us is unable to perform his obligations under the
Equity Transfer Agreement entered into by and among Group (or its designated
person) and us on __________, [ ] in the event of hisdeath,
emigration, illness, incapacity or any other reason, to act on his behalf to
perform the obligations under the above agreement and all matters related to
transfer of equity interest.
The above
actions shall include but not be limited to the execution of all necessary
documents (including resolutions of shareholders' meetings) and completion of
all necessary formalities (including filings with the government and alteration
of the registration of shareholders of the Company) required for our performance
of the obligations under the above Equity Transfer Agreement in accordance with
laws of China.
|
Signed
by:
|
Signed
by:
|
Signed
by:
|
Signed
by:
|
|||
|
Name:
▇▇▇▇▇▇▇ ▇▇▇
Date:
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇
Date:
|
Name:
▇▇▇▇▇▇ ▇▇▇
Date:
|
Name:
▇▇▇ ▇▇▇
Date:
|
▇▇
▇▇▇▇▇▇▇▇
▇
Form
of waiver of right of first refusal
Waiver
of Right of First Refusal
|
To: [
|
]
|
Dear
Sirs,
I refer
to the proposed transfer of your entire interest in the registered capital of
China TransInfo Technology Group Co., Ltd. to [ ] ("Transferee").
I hereby
waive any pre-emptive right I may have under PRC laws or otherwise to acquire
the equity interest you propose to transfer to the Transferee and consent to the
proposed transfer of the equity interest to the Transferee.
|
Yours
faithfully
|
|
21