EX-10.1
GUARANTEE CONTRACT
BETWEEN
SHIJI RUICHEN GUARANTY AND INVESTMENT CO. LTD.
AND
CHINA DIGITAL COMMUNICATION GROUP
Contract serial number:
LUBAO ZI NO. 0901, 2004
GUARANTOR:
Shenzhen Shiji Ruichen Guaranty and Investment Co. Ltd.
ADDRESS:
▇▇▇▇-▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇. Center Commercial Tower. Futian Area.
Shenzhen. China
Corporate Legal Representative : ▇▇▇▇▇▇▇ ▇▇
BANK:
BANK ACCOUNT:
TELEPHONE:
755-82032400
FACSMILE:
▇▇▇-▇▇▇▇-▇▇▇▇
POSTAL CODE:
518048
GUARANTEE:
China Digital Communication Group
ADDRESS:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇: ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇. CA.
TELEPHONE: (▇▇▇) ▇▇▇-▇▇▇▇
FACSIMILE: (▇▇▇) ▇▇▇-▇▇▇▇
POSTAL CODE: 90024
IN CONSIDERATION OF THE FOLLOWING FACTS:
1. China Digital Communication Group ("Guarantee") signed a Share
Exchange Agreement ("Agreement", Exhibit A) with ▇▇▇▇ ▇▇▇▇▇▇, Top
Interest International Ltd. and Xu Xirong (the three parties are
"Seller", which owns 100% of Billion Electronics Ltd.'s shares.
Billion Electronics in turn owns 100% of Shenzhen E'Jinie Technology
Development Co. Ltd.'s shares). The Agreement stipulates that
Guarantee will issue 4,566,210 shares of its stock and pay cash
consideration of $1,500,000 to Seller in exchange for Seller's 100%
shares of Billion Electronics;
2. Guarantee pledges the legality of its business activity;
3. Guarantee promises to irrevocably carry out its terms as stipulated
in the Agreement;
4. Guarantee requests Guarantor to provide contract guarantee with
regard to Seller's fulfillment of its terms in the Agreement.
After reviewing Guarantee's request and all related documents including the
Agreement, Guarantor agrees to guarantee the execution of Seller's terms
according to the Agreement. Guarantor and Guarantee hereby enter into this
contract pursuant to the relevant laws and regulations of the People's Republic
of China.
Article 1 Means of Guarantee
1.1. Guarantor agrees to provide regular contract guarantee, as
defined in the Law of Guarantee in the People's Republic of
China, to Guarantee;
1.2. Guarantor may enter into any other guarantee contract with any
party of Seller. Guarantor may also unilaterally provide
guarantee to any party of Seller Guarantee may not raise
objection to Guarantor's additional guarantee contract.
Article 2 Conditions for Guarantee Service
2.1 Guarantee has already provided the complete documentation and all relevant
material to Guarantor, as stipulated in Article 6 of this contract;
2.2 Guarantor has already reviewed and verified all the facts in the
documentation and in all related material provided by Guarantee;
2.3 Guarantor considers the guarantee request by Guarantee valid, according to
Article 8 of this contract;
2.4 Guarantee has already paid Guarantor expenses for guarantee and document
processing, according to Article 5 of this contract;
2.5 Guarantee has already provided Guarantor with enough resources for reverse
guarantee according to Article 7 of this contract.
Article 3 The Content of Guarantee Request
3.2 Guarantor guarantees that Seller will fulfill its obligations as stipulated
in the Agreement between Seller and Guarantee;
3.3 Guarantor guarantees that Guarantee will, according to the Agreement, issue
4,566,210 new shares and pay cash consideration of $1,500,000 (compensation for
Guarantor is not included) in exchange for all the shares of Seller.
Article 4 Default of the Agreement
4.1 In case of default on the part of Seller ("default" includes but is not
limited to mistakes, negligence and deliberate postponement) which causes the
termination of the Agreement, Guarantor will pay Guarantee $605,000 (RMB
5,000,000 yuan, at $1=8.26 yuan) within three months from the day when the
Agreement is terminated.
4.2 In case of default on the part of Seller ("default" includes but is not
limited to mistakes, negligence and deliberate postponement) which delays the
execution of the Agreement, Guarantor will pay Guarantee $6,053 (RMB 50,000
yuan) per day for every day the Agreement cannot be executed. But Guarantor
shall pay no more than $242,000 (RMB 2,000,000 yuan) in this scenario.
4.3 In case of Guarantee's purchase price for Seller (4,566,210 new shares plus
$1,500,000 in cash, not including compensation for Guarantor) being insufficient
for all the shares of Seller, Guarantor will make up the difference in shares.
4.4 In case of default on the part of Guarantee ("default" includes but is not
limited to mistakes, negligence and deliberate postponement) which causes the
termination or delay of the Agreement, Guarantor, starting from the day the
Agreement is terminated or delayed, may take action as it sees fit (including
but not limited to resale, transfer, etc.) with the shares and cash which
Guarantee has put up for reverse guarantee. Guarantee may not raise any
objection.
4.5 In case of Guarantee engaging in illegal business activity, Guarantee will
pay Guarantor a default fee of $605,000 (RMB 5,000,000 yuan).
Article 5 Compensation and Other Fees
5.1 Guarantee shall pay Guarantor RMB zero yuan in processing fee within three
days from the signing of this contract, according to Article 8 of this contract.
5.2 Guarantee agrees to pay Guarantor 4% of its total existing outstanding
shares (1,919,016 shares, 50% of which are free trading and 50% of which are
restricted) upon the completion of the Agreement between Guarantee and Seller.
These shares will compensate Guarantor for its guarantee of Seller's fulfillment
of its obligations as stipulated in the Agreement (Guarantor will decide the
means of share transfer in this transaction).
5.3 Miscellaneous fees incurred during the guarantee provided by Guarantor will
be covered by Guarantee. Guarantee shall pay the amount as advised by Guarantor
or any related department and institution.
5.4 Guarantee agrees that after the start of the guarantee according to this
contract, Guarantor has the right to demand, in the means as it sees fit, its
full compensation and fees from Guarantee, in the event that the Agreement
between Guarantee and Seller is modified, terminated, cancelled or invalidated.
Guarantee may not ask for a refund or reduction in compensation and fees.
Article 6 Documents Provided by Guarantee
6.1 Guarantee shall provide sufficient documents and other material, at
Guarantor's request, in order to state the facts such as its qualification, its
financial condition, its investment projects, etc.
6.2 Documents to be provided by Guarantee shall include but not be limited to:
(1) Business license;
(2) Proof of Normal Commercial Information
(3) Company charter and bylaws;
(4) Audited financial statements as of June 30, 2004 and audited
financial statements of Year 2003;
(5) Names of creditors and loan-related documents;
(6) Balance sheet;
(7) Documents stating investment projects and letters of approval;
(8) Approval of share exchange (for Billion Electronics) from the
shareholders' meeting and the meeting of the board of directors;
(9) Any other documentation which has significant influence on this
contract.
Article 7 Reverse Guarantee Provided by Guarantee
7.1 Guarantee agrees to put up RMB zero yuan in a bank account designated by
Guarantor as reverse guarantee;
7.2 Guarantee agrees to put up 5,000,000 shares from its largest shareholder
(China Digital Communication Group) as reverse guarantee for Guarantor.
Article 8 Requests of Related Business/Services
8.1Guarantee requests the following business/services from Guarantor: none at
the moment.
8.2 Guarantee shall sign an Assignment Contract with Guarantor if Guarantee
wishes to request certain business/services Guarantor according to 8.1.
Article 9 Termination of the Guarantee
9.1 The guarantee provided by Guarantor is "guarantee of contract". When the
Agreement between Guarantee and Seller has been executed, the guarantee service
provided by Guarantor to Guarantee will be terminated.
9.2 In case of failure on the part of Guarantee to fulfill its obligations in
the Agreement or to fulfill its obligations as stipulated in this contract
(except for its failure as a result of Seller's default in the first place), the
guarantee service provided by Guarantor to Guarantee will be terminated.
9.3 Regardless of cause, in case of the Agreement between Guarantee and Seller
being modified, terminated, cancelled or invalidated, the guarantee provided by
Guarantor to Guarantee will be terminated.
9.4 Guarantee shall provide assistance during the process of Guarantor
terminating its guarantee service. Guarantee shall not use any excuse to raise
any objection or create obstacles.
Article 10 Termination of This Contract
10.1 Guarantor and Guarantee agree that Article 410 of the Contract Law of the
People's Republic of China, which states "guarantor and guarantee may terminate
the contract any time", does not apply to this contract.
10.2 Guarantor may terminate the contract in the event of any of the following:
(1) Documents provided by Guarantee contain any false information or Guarantee
has concealed any truth or facts; (2) Guarantee has not paid Guarantor
compensation and fees according to this contract.
10.3 When Guarantor terminates the contract pursuant to 10.2, Guarantor shall no
longer service Guarantee. Guarantee may not request a refund or fees from
Guarantor.
Article 11 Default of This Contract
11.1 Guarantee shall fully fulfill the obligations of the Agreement and of this
contract. If the deal falls apart as a result of Guarantee's failure to fulfill
all or part of the obligations as stipulated in the Agreement and in this
contract, Guarantor has the right to take away the full amount of the cash and
the shares put up by Guarantee as reverse guarantee.
11.2 In case of Guarantor refusing the guarantee service to guarantee outside
the scenarios listed in 10.2, Guarantee may obtain full refund of its
compensation paid.
Article 12 Disputes and Resolution
12.1 In case of disputes, both parties shall negotiate to resolve differences.
12.2 In case of unsuccessful negotiation between themselves, the two parties
shall litigate the case in the Shenzhen Zhongji People's Court.
Article 13 Miscellaneous
13.1 This contract shall take effect after the two parties or their designates
sign their names and stamp valid stamps.
13.2 This contract shall be quadruplicated, two copies for each signing party.
13.3 All correspondence sent between the two parties to fulfill obligations of
this contract shall be in written form.
13.4 All correspondence sent between the two parties shall become a part of this
contract after they are acknowledged in writing. In case of inconsistence among
notices, the most recent one shall override the older ones.
13.5 Any addendum or modification to this contract shall follow the rule of most
recent one overriding the older ones.