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Title: |
Exclusive Equity Transfer Call Agreement |
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Date: |
2005 |
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Preview shows 11KB of 38KB total |
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$38 |
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ID: |
#1563410 |
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Exclusive Equity Transfer Call Agreement
among
Feng Tao
Shanghai NewMargin Venture Capital Co., Ltd.
Shanghai T2 Entertainment Co., Ltd.
and
T2CN Holding Limited
Regarding
Shanghai T2 Entertainment Co., Ltd.
November 4, 2004
FANGDA PARTNERS
22/F, Kerry Center
1515 Nan Jing West Road
Shanghai 200040, PRC
1
Exclusive Equity Transfer Call Agreement
This Exclusive Equity Transfer Call Agreement (hereinafter this "Agreement") is
entered into in Shanghai of the People's Republic of China (hereinafter "PRC")
as of November 4, 2004 by and between the following Parties:
(1) Feng Tao
Address: Building 3 Xingguo Hotel, 78 Xingguo Road, Shanghai
Identity Card Number: 310106670509323
(2) Shanghai NewMargin Venture Capital Co., Ltd. (hereinafter "Shanghai
NewMargin") Registered Address: 99 Yinqiao Road, Pudong New District,
Shanghai, PRC Legal Representative: Dong Yeshun
(Feng Tao and Shanghai NewMargin hereinafter individually and collectively the
"Existing Shareholder(s)");
(3) Shanghai T2 Entertainment Co., Ltd., (hereinafter "T2 Entertainment")
Registered Address: 5th Floor 88 Qinjiang Road, Xuhui District,
Shanghai, PRC
Legal Representative: Feng Tao
and
(4) T2CN Holding Limited (hereinafter "Company")
Registered Address: Offices of S-HR&M Financial Services Limited of
Kingston Chambers, P.O. Box 173, Road Town, Tortola, British Virgin Islands
Whereas:
(1) The Existing Shareholders are the enrolled shareholders of T2
Entertainment, legally holding all the equity of T2 Entertainment, and
their contributions to and their equity shares in the registered capital of
T2 Entertainment as of the date of this Agreement are as set out in
Appendix I hereto.
(2) The Existing Shareholders intend to transfer to the Company, and the
Company is willing to accept, all their respective equity share in T2
Entertainment, subject to PRC Law.
(3) In order to realize the above equity transfer, the Existing Shareholders
agree to jointly grant the Company with an irrevocable right for equity
transfer (hereinafter the "Transfer Right"), under which and to the extent
as permitted by the PRC Law, the Existing Shareholders shall on demand of
the Company transfer the Refined Equity (as defined below) to the Company
2
and/or any other entity or individual designated by it in accordance with
the provisions contained herein.
(4) T2 Entertainment consents that the Existing Shareholders grant the Company
the Transfer Right according to this Agreement.
The Parties hereby have reached the following agreement upon mutual
consultations:
Article 1 - Definition
1.1 Except as otherwise construed in the context, the following terms in this
Agreement shall be interpreted to have the following meanings:
"PRC Law" shall mean the then valid laws, administrative regulations,
administrative rules, local regulations, judicial interpretations and other
binding regulatory documents of the People's Republic of China.
"Refined Equity" shall mean, in respect of each of the Existing Shareholders,
all its respective equity share in the T2 Entertainment Registered Capital (as
defined below); and in respect of both Existing Shareholders, the equity
accounting for 80% of the T2 Entertainment Registered Capital.
"T2 Entertainment Registered Capital" shall mean the registered capital of T2
Entertainment on the date of this Agreement, i.e., RMB1,000,000, and shall
include any expanded registered capital as the result of any capital increase
within the term of this Agreement.
"Transferred Equity" shall mean the equity of T2 Entertainment which the Company
has the right to require the Existing Shareholders to transfer to it or its
designated entity or individual when the Company exercises its Transfer Right
(hereinafter the "Exercise of Call") in accordance with Article 3.2 herein, the
amount of which may be all or part of the Refined Equity and the details of
which shall be determined by the Company at its own discretion in accordance
with the then valid PRC Law and from its commercial consideration.
"Transfer Price" shall mean all the considerations that the Company or its
designated entity or individual is required to pay to the Existing Shareholders
in order to obtain the Transferred Equity upon each Exercise of Option.
"Business Permits" shall mean any approvals, permits, filings, registrations
etc. which T2 Entertainment is required to have for legally and validly
operating its eight technical services in the field of computer hardware and
software development and all such other businesses, including but not limited to
the Business License of the Corporate Legal Person, the Tax Registration
Certificate, the Permit for Operations of Value-added Telecommunication
Businesses in respect of the business operations in internet information
services, the filing of internet electronic announcement services, the filing of
3
computer network safety and such other relevant licenses and permits as required
then by PRC Laws;
"T2 Entertainment Assets" shall mean all the tangible and intangible assets
which T2 Entertainment owns or has the right to use during the term of this
Agreement, including but not limited to any immoveable and moveable assets, and
such intellectual property rights as trademarks, copyrights, patents,
proprietary know-how, domain name, software use right;
"Wholly-Owned Company" shall mean T2CN Information Technology (Shanghai) Co.,
Ltd., a wholly foreign owned enterprise duly incorporated and validly existing
under the PRC laws, with its legal address at Suite 22301-526, Pudong Software
Park, 498 Guo Shoujing Road, Pudong New District, Shanghai;
"Material Agreement" shall mean an agreement to which T2 Entertainment is a
party and which has a material impact on the businesses or assets of T2
Entertainment, including but not limited to the Exclusive Technical Service and
Consultancy Agreement between T2 Entertainment and the Wholly-Owned Company and
other agreements regarding T2 Entertainment's business;
"Shareholding Limit" shall have the meaning stipulated in Article 3.2 of this
Agreement.
"Exercise Notice" shall have the meaning stipulated in Article 3.5 of this
Agreement.
"Power of Attorney" shall have the meaning stipulated in Article 3.7 of this
Agreement.
"Confidential Information" shall have the meaning stipulated in Article 8.1 of
this Agreement.
"Defaulting Party" shall have the meaning stipulated in Article 11.1 of this
Agreement.
"Default" shall have the meaning stipulated in Article 11.1 of this Agreement.
Party's Rights shall have the meaning stipulated in Article 12.5 of this
Agreement.
1.2 The references to any PRC Law herein shall be deemed
(1) to include the references to the amendments, changes, supplements and
reenactments of such law, irrespective of whether they take effect
before or after the formation of this Agreement; and
(2) to include the references to other decisions, notices or regulations
enacted in accordance therewith or effective as a result thereof.
1.3 Except as otherwise stated in the context herein, all references to an
Article, clause, item or paragraph shall refer to the relevant part of this
4
Agreement.
Article 2 - Grant of Transfer Call
2.1 The Existing Shareholders hereby separately and jointly agree to
exclusively grant the Company hereby irrevocably and without any additional
conditions with a Transfer Right, under which the Company shall have the
right to require the Existing Shareholders to transfer the Refined Equity
to the Company or its designated entity or individual in such method as set
out herein and as permitted by the PRC Law. The Company also agrees to
accept such Transfer Right.
2.2 T2 Entertainment hereby consents that the Existing Shareholders grant the
Company such Transfer Right according to Article 2.1 above and other
provisions in this Agreement.
Article 3 - Method for Exercise of Call
3.1 To the extent as permitted by the PRC Law, the Company shall have the
absolute discretionary right to determine the specific time, method and
times of its Exercise of Option.
3.2 If the then PRC Law permits the Company and/or other entity or individual
designated by it to hold all the equity of T2 Entertainment, then the
Company shall have the right to elect to exercise all of its Transfer Right
at once, where the Company and/or other entity or individual designated by
it shall accept all the Refined Equity from the Existing Shareholders at
once; if the then PRC Law permits the Company and/or other entity or
individual designated by it to hold only part of the equity in T2
Entertainment, the Company shall have the right to determine the amount of
the Transferred Equity within the extent not exceeding the upper limit of
shareholding ratio set out by the then PRC Law (hereinafter the
"Shareholding Limit"), where the Company and/or other entity or individual
designated by it shall accept such amount of the Transferred Equity from
the Existing Shareholders. In the latter case, the Company shall have the
right to exercise its Transfer Right at multiple times in line with the
gradual deregulation of the PRC Law on the permitted Shareholding Limit,
with a view to ultimately acquiring all the Refined Equity.
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