exv10w7






English Translation

Exhibit 10.7




Exclusive Purchase Option Agreement



THIS EXCLUSIVE PURCHASE OPTION AGREEMENT (“this Agreement”) is made and entered into by the
following parties in Beijing, the People’s Republic of China (“PRC”) on February 1, 2010:




Party A: Hangzhou Dianneng Technologies Co., Ltd.



Address: Room 703, Building C, Zhejiang University Science Park, No.525 Xixi Road, 

                 Xihu District, Hangzhou




Party B:



Song Tao, ID card number:



Yang Tao, ID card number:




Party C: Hangzhou Fanyi Technologies Co., Ltd.



Address: Room 623, West Area, Building A, Zhejiang University Science Park, No.525 Xixi Road, 

                 Xihu District, Hangzhou



In this Agreement, Party A, Party B and Party C are individually referred to as a “Party” and
collectively referred to as the “Parties”.



WHEREAS, Party B holds the 100% equity interest of Party C and Party A and Party B entered into the
two Borrowing Agreements (“Borrowing Agreements”) on December 24, 2009 and the date of this
Agreement respectively;



NOW, THEREFORE, the Parties hereto hereby agree as follows:





	1.	 	Purchase and Sale of Equity






	 	1.1	 	Granting of Rights
	 
	 	 	 	In consideration of the payment of RMB10 made by Party A to Party B as the
consideration, the receipt and sufficiency of which is hereby acknowledged by Party B,
Party B hereby irrevocably agrees to, upon Party A’s request, perform and fulfill any
and all examination, approval and registration procedures required by the PRC laws and
grants to Party A an option to purchase (one time or several times) or cause any person
or persons designated by Party A (“Designee”) to purchase from Party B at any time, to




 









 






	 	 	 	the extent permitted by PRC laws and according to the exercising steps determined by
Party A at its own discretion, all or part of its equity in Party C (the “Purchase
Option”) at the price specified in Article 1.3 of this Agreement. Such Purchase Option
for Party A is exclusive. No Purchase Option or other rights in connection with Party
B’s equity shall be granted to any third person other than Party A and the Designee.
Party C hereby agrees to the granting of the Purchase Option by Party B to Party A. The
term “person” set forth in this article and this Agreement means an individual,
corporation, joint venture, partnership, enterprise, trust or a non-corporate
organization.
	 
	 	1.2	 	Exercising Steps
	 
	 	 	 	Subject to PRC laws and regulations, Party A may exercise the Purchase Option upon
giving a written notice (the “Equity Purchase Notice”) to Party B, specifying (a) Party
A’s decision to exercise the Purchase Option; (b) the equity to be purchased from Party
B (the “Purchased Equity”); and (c) the purchase date/transfer date (the “Transfer
Date”) of the Purchased Equity.
	 
	 	1.3	 	Purchase Price
	 
	 	 	 	When Party A exercises the Purchase Option, the purchase price of the Purchased Equity
(“Purchase Price”) shall be equal to the actual capital contribution made by Party B to
Party C’s registered capital in respect of the Purchased Equity, unless the applicable
PRC laws require appraisal of the equity.
	 
	 	1.4	 	Transfer of the Purchased Equity
	 
	 	 	 	At each exercise of the Purchase Option by Party A:






	 	1.4.1	 	Party B shall cause Party C to convene a shareholders’ meeting in
time, at which to adopt a resolution on approving the transfer by Party B of the
Purchased Equity to Party A and/or the Designee;
	 
	 	1.4.2	 	Party B shall obtain a written statement from the other shareholders
of Party C that they consent to Party B’s transfer of the Purchased Equity to Party
A and/or the Designee and waive the preemptive right thereto;
	 
	 	1.4.3	 	Subject to the provisions of this Agreement and the Equity Purchase
Notice, Party B shall enter into an equity transfer agreement with Party A and/or
the Designee (as applicable) for each transfer;
	 
	 	1.4.4	 	The parties concerned shall execute all other contracts, agreements or
documents, obtain all government approvals and consents and take all actions as
necessary to transfer the valid ownership of the




 









 






	 	 	 	Purchased Equity, free of any security interest, to Party A and/or the
Designee, and cause Party A and/or the Designee to be the registered owner of
the Purchased Equity. For the purpose of this Article and this Agreement,
“security interest” means any guaranty, mortgage, third-party right or
interest, any share option, right of acquisition, preemptive right, right of
set-off, retention of title or other security arrangements, but for the
avoidance of doubt, excludes any security interest arising under this Agreement
and Party B’s Equity Pledge Agreement. For the purpose of this Article and this
Agreement, “Party B’s Equity Pledge Agreement” means the equity pledge
agreement signed by Party A, Party B and Party C on and as of the signing date
of this Agreement (hereinafter referred to as “Equity Pledge Agreement”),
pursuant to which Party B pledges all its equity in Party C to Party A to
guarantee the performance by Party C of its obligations under the Exclusive
Business Cooperation Agreement between Party C and Party A.






	 	1.5	 	Payment
	 
	 	 	 	Whereas the Borrowing Agreements set forth that any and all proceeds received by Party B
from transfer of its equity in Party C shall be used to repay the borrowings due to
Party A under the Borrowing Agreements, at the exercise of the Purchase Option by Party
A, Party A may opt to pay the Purchase Price by canceling the borrowing owed by Party B
to Party A and in this case, Party A is not required to pay any additional Purchase
Price to Party B.






	2.	 	Undertakings Related to Equity






	 	2.1	 	Undertakings by Party C
	 
	 	 	 	Party B (as Party C’s shareholder) and Party C hereby undertake:






	 	2.1.1	 	Not to supplement, amend or modify Party C’s articles of association
in any way, or to increase or decrease its registered capital, or to change its
registered capital structure by other means without Party A’s prior written
consent;
	 
	 	2.1.2	 	To maintain its existence, carry on its business and deal with the
matters in a prudent and effective way, subject to good financial and business
standards and practices;
	 
	 	2.1.3	 	Not to sell, transfer, mortgage or otherwise dispose of the legal or
beneficial interest over, or cause any other security interest to be created on,
any of Party C’s assets, business or income at any time at any time after the
signing of this Agreement without Party A’s prior written consent;




 









 






	 	2.1.4	 	Not to create, succeed to, guarantee or permit any liability without
Party A’s prior written consent, except (i) the liability incurred in the normal or
ordinary course of business, but not arising from the loan; and (ii) the liability
disclosed to Party A and approved by Party A in writing;
	 
	 	2.1.5	 	To carry on persistently all the businesses in the normal course of
business to maintain the value of Party C’s assets and not to do or cause to be
omitted any act that affects its business operations and asset value;
	 
	 	2.1.6	 	Without Party A’s prior written consent, (in respect of Party C) not
to enter into any material agreement, other than the agreements in the normal
course of business (for the purpose of this paragraph, a contract will be deemed
material if its total value exceeds 500,000 yuan);
	 
	 	2.1.7	 	(in respect of Party C) Not to provide loan or credit to any person
without Party A’s prior written consent;
	 
	 	2.1.8	 	To provide Party A with all the information concerning Party C’s
operations and financial performance at Party A’s request;
	 
	 	2.1.9	 	(in respect of Party C) To procure and maintain the insurances in
respect of Party C’s assets and business at an insurance company acceptable to
Party A, the amounts and types of which shall be consistent with those for the
companies carrying on the similar business at the request of Party A;
	 
	 	2.1.10	 	(in respect of Party C) Not to undertake any merger, consolidation, acquisition
or investment with or in any person without Party A’s prior written consent;
	 
	 	2.1.11	 	To inform promptly Party A of any pending or threatened litigation, arbitration
or administrative proceedings in connection with Party C’s assets, business or
income;
	 
	 	2.1.12	 	To execute all such documents, do all such acts and put forth all such claims or
make all such defenses against compensations that may be necessary or desirable for
Party C to maintain the ownership over all its assets;
	 
	 	2.1.13	 	Not to distribute dividends to Party C’s shareholders in any way without Party
A’s prior written consent. However, Party C shall promptly distribute all its
distributable profits to its shareholders at the request of Party A;




 









 






	 	2.1.14	 	At the request of Party A, to appoint any person nominated by Party A as the
director of Party C.






	 	2.2	 	Undertakings by Party B
	 
	 	 	 	Party B hereby undertakes:






	 	2.2.1	 	Not to sell, transfer, mortgage or otherwise dispose of the legal or
beneficial interest over, or cause any other security interest to be created on,
its equity in Party C without Party A’s prior written consent, but other than the
right of pledge created on such equity in accordance with the Party B’s Equity
Pledge Agreement;
	 
	 	2.2.2	 	Without Party A’s prior written consent, cause the shareholders’
meeting and/or board of directors of Party C not to approve the sale, transfer,
mortgage or other disposal of the legal or beneficial interest over, or the
creation of any other security interest on, any equity held by Party B in Party C,
but other than the right of pledge created on Party B’s equity in accordance with
the Party B’s Equity Pledge Agreement;
	 
	 	2.2.3	 	Without Party A’s prior written consent, cause the shareholders’
meeting or board of directors of Party C not to approve Party C to undertake any
merger, consolidation, acquisition or investment with or in any person;
	 
	 	2.2.4	 	To promptly inform Party A of any litigation, arbitration or
administrative proceedings pending or threatened against its equity;
	 
	 	2.2.5	 	To cause the shareholders’ meeting or board of directors of Party C to
approve the transfer of the Purchased Equity hereunder by voting and, to take any
other action as may be requested by Party A;
	 
	 	2.2.6	 	To execute all such documents, do all such acts and put forth all such
claims or make all such defenses against compensations that may be necessary or
desirable to maintain its ownership over the equity;
	 
	 	2.2.7	 	At Party A’s request, to appoint any person nominated by Party A as
the director or executive director of Party C;
	 
	 	2.2.8	 	At Party A’s request as may be made from time to time, to promptly
transfer its equity unconditionally at any time to the Designee designated by Party
A according to the Purchase Option hereunder and waive its preemptive right to
purchase the equity transferred by the other existing shareholder (as applicable);
and




 









 






	 	2.2.9	 	To fully comply with the provisions of this Agreement and other
agreements entered into, jointly or individually, by Party B and Party C with Party
A , to perform all the obligations hereunder and thereunder and not to do or cause
to be omitted any act that affects the validity and enforceability hereof and
thereof.






	3.	 	Representations and Warranties
	 
	 	 	As of the execution date of this Agreement and each transfer date, Party B and Party C hereby
jointly and individually represent and warrant to Party A that:




 









 












	 	3.1	 	It has the authority and capacity to execute and deliver this Agreement and any
equity transfer agreement (“Transfer Agreement”) to which it is a party in respect of
each transfer of the Purchased Equity under this Agreement and to perform its obligations
hereunder and thereunder. Party B and Party C agree that when Party A exercises the
Purchase Option, they will sign the Transfer Agreement with the same terms as those
herein. This Agreement and each Transfer Agreement to which it is a party, once executed,
constitute or will constitute a legal, valid and binding obligation of it, enforceable
against it in accordance with their provisions;
	 
	 	3.2	 	The execution, delivery and performance of this Agreement or any Transfer Agreement
by it will not: (i) violate any relevant PRC laws; (ii) conflict with Party C’s articles
of association or other constitutional documents; (iii) result in any breach of or
constitute any default under any contract or instrument to which it is a party or by
which it is otherwise bound; (iv) result in any violation of any condition for the grant
and/or continuity in force of any permit or approval granted to any Party; or (v) cause
any permit or approval granted to any Party to be suspended, cancelled or attached with
additional conditions;
	 
	 	3.3	 	Party B has good and salable ownership over its equity in Party C and has not
created any security interest, other than the security interest under the Party B’s
Equity Pledge Agreement, on such equity;
	 
	 	3.4	 	Party C has good and salable ownership over all assets and has not created any
security interest on any such assets;
	 
	 	3.5	 	Party C has no outstanding liabilities, except (i) the liabilities incurred in the
normal course of business; and (ii) the liabilities disclosed to Party A and approved by
Party A in writing;
	 
	 	3.6	 	Party C complies with all the laws and regulations applicable to the acquisition of
equity and assets; and
	 
	 	3.7	 	At present, there are no pending or threatened litigation, arbitration or
administrative proceedings against the equity, Party C’s assets or Party C.






	4.	 	Effective Date
	 
	 	 	This Agreement shall become effective upon execution by the Parties. The term of this
Agreement is ten years and may be extended at Party A’s option.






	5.	 	Applicable Law and Dispute Resolution






	 	5.1	 	Applicable Law
	 
	 	 	 	The formation, validity, interpretation, performance, amendment and termination of
this Agreement and resolution of disputes arising in connection with this Agreement
shall be governed by the PRC laws that have




 









 






	 	 	 	been formally promulgated and are publicly available. Anything not stipulated by
such PRC laws shall be governed by the international legal principles and practices.
	 	5.2	 	Dispute Resolution
	 
	 	 	 	Any dispute arising in connection with the interpretation and performance of this
Agreement shall first be resolved by the Parties by amicable consultation. If the
Parties have failed to resolve their dispute within 30 days after a Party notifies the
other Party in writing of its intention to resolve such dispute by consultation, any
Party may refer their dispute to China International Economic and Trade Arbitration
Commission (“CIETAC”) for arbitration in accordance with CIETAC’s arbitration rules then
in effect. The seat of arbitration proceedings shall be Beijing and the language to be
used in the arbitration proceedings shall be Chinese. The arbitral award shall be final
and binding upon the Parties.






	6.	 	Taxes and Expenses
	 
	 	 	Each Party shall bear any and all transfer and registration taxes, costs and expenses incurred
by or levied on it in respect of the preparation and execution of this Agreement and each
Transfer Agreement and the consummation of the transactions contemplated hereby and thereby in
accordance with the PRC laws.
	 
	7.	 	Notices






	 	7.1	 	All notices or other communications required to be made or sent under or pursuant
to this Agreement shall be delivered to the addressee at its address below by hand
delivery, registered mail (postage prepaid), commercial courier service or fax. Each
notice shall also be served by email. Any such notice shall be deemed duly served:






	 	7.1.1	 	If delivered by hand delivery, courier service or registered mail
(postage prepaid), on the date of the giving or rejection at the receiving address.
	 
	 	7.1.2	 	If sent by fax, on the date of successful transmission (evidenced by the
automatically generated transmission confirmation).






	 	7.2	 	For the purpose of notices, the addresses of the Parties are as follows:
	 
	 	 	 	Party A: Hangzhou Dianneng Technologies Co., Ltd.
	 
	 	 	 	Address: Room 703, Building C, Zhejiang University Science Park, No.525 Xixi Road, 

                 Xihu District, Hangzhou
	 
	 	 	 	Attention.: Song Tao
	 
	 	 	 	Tel.: 0571-87750978
	 
	 	 	 	Fax: 0571-87758616




 









 






	 	 	 	Party B:
	 
	 	 	 	Song Tao
	 
	 	 	 	Address: No.398 Wensan Road, Xihu District, Hangzhou
	 
	 	 	 	Tel.: 0571-28029618
	 
	 	 	 	Fax: 0571-28029616
	 
	 	 	 	Yang Tao
	 
	 	 	 	Address: 7#, Beipingfang, Building 28, No.55 Ande Road, Dongcheng 

                 District, Beijing
	 
	 	 	 	Tel.: 010-84475668
	 
	 	 	 	Fax: 010-84475669
	 
	 	 	 	Party C: Hangzhou Fanyi Technologies Co., Ltd.
	 
	 	 	 	Address: Room 623, West Area, Building A, Zhejiang University Science 

                 Park, No.525 Xixi Road, Xihu District, Hangzhou
	 
	 	 	 	Attention.: Qu Li
	 
	 	 	 	Tel.: 0571-87750978
	 
	 	 	 	Fax: 0571-87758616
	 
	 	7.3	 	Any Party may at any time give a notice to the other Parties according to the
provisions of this Article to modify its address receiving notices.






	8.	 	Confidentiality




The Parties agree and acknowledge that any and all oral or written information exchanged among them
in respect of this Agreement, the contents of this Agreement and the preparation or performance of
this Agreement is deemed confidential information. Each Party shall keep confidential all such
information and not disclose any confidential information to any third party without the prior
written consent of the other Party, but the above confidentiality obligation shall not apply to the
information which: (a) is or becomes or will be or become publicly available (through no fault of
the receiving party); (b) is disclosed under requirement of applicable laws or regulations or stock
trading rules or an order of any government authority or court; or (c) is disclosed by any Party to
its shareholders, investors or legal or financial consultants in respect of the transactions
contemplated by this Agreement, who shall agree to be bound by the confidentiality obligation
similar to that as stated herein. Any breach of the above confidentiality obligation by any of the
personnel of any Party or of the institutions engaged by such Party shall be deemed as a breach
hereof by such Party, and such Party shall bear the defaulting liability hereunder. The provisions
of this Article shall survive the termination of this Agreement for whatever reason.







 









 









	9.	 	Further Assurances
	 
	 	 	The Parties agree to promptly execute such documents as may be reasonably required to
perform the provisions of this Agreement and achieve the purpose of this Agreement or
beneficial to themselves and to take such further actions as may be reasonably required to
perform the provisions of this Agreement and achieve the purpose of this Agreement or
beneficial to themselves.






	10.	 	Miscellaneous






	 	10.1	 	Amendment, Modification and Supplement
	 
	 	 	 	This Agreement may be amended, modified or supplemented by a written instrument duly
executed by the Parties.
	 
	 	10.2	 	Entire Agreement
	 
	 	 	 	Except for the written amendments, supplements or modifications made after the
execution of this Agreement, this Agreement shall constitute the entire agreement
among the Parties with respect to the subject matter hereof and replace and supersede
all prior oral or written discussions, representations and agreements among the
Parties with respect to the subject matter hereof.
	 
	 	10.3	 	Headings
	 
	 	 	 	The headings contained herein are inserted as a matter of convenience for reference
only and shall not control or affect the meaning or construction of any of the terms
or provisions of this Agreement.
	 
	 	10.4	 	Language and Counterparts
	 
	 	 	 	This Agreement is executed in Chinese in four (4) copies. Each Party retains one copy
and all copies have the same effect.
	 
	 	10.5	 	Severability
	 
	 	 	 	If any one or more of the provisions contained in this Agreement is held invalid,
illegal or unenforceable in any respect under any applicable laws or regulations, the
validity, legality and enforceability of the remaining provisions contained herein
shall not in any respect be affected or impaired thereby. The Parties shall in such an
instance negotiate in good faith and try to replace the invalid, illegal or
unenforceable provision(s) with valid provision(s), the economic effect of which comes
as close as possible to that of the invalid, illegal or unenforceable provision(s), to
the maximum extent permitted by law.
	 
	 	10.6	 	Successor
	 
	 	 	 	This Agreement shall bind on and inure to the benefit of the successors and permitted
assigns of the Parties.




 









 






	 	10.8	 	Survival






	 	10.8.1	 	Any obligation accrued prior to the expiration or premature termination of this
Agreement shall survive such expiration or premature termination.
	 
	 	10.8.2	 	The provisions of Articles 5, 7 and 8 and this Article 10.8 hereunder shall
survive the termination of this Agreement.






	 	10.9	 	Waiver
	 
	 	 	 	Any Party may waive the terms and conditions of this Agreement by a written instrument
duly executed by the Parties. No waiver by a Party of the breach by the other Parties
in any circumstance shall operate as a waiver by such Party of any similar breach by
the other Parties in any other circumstance.





(Remainder of page intentionally left blank)






 









 








     IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective
duly authorized representatives as of the date first above written.


Party A: Hangzhou Dianneng Technologies Co., Ltd. (company seal)




	 	 	 	 	 

	By: 

Name:

	 	/s/ Tao Song
 

Song Tao
	 	 
	Title:

	 	Legal representative	 	 







	 	 	 	 	 

	Party B:
	 	 	 	 
	 
	 	 	 	 
	Song Tao

	 	/s/ Tao Song	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Yang Tao

	 	/s/ Tao yang	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Party C: Hangzhou Fanyi Technologies Co., Ltd. (company seal)






	 	 	 	 	 

	By:

	 	/s/ Ou Li	 	 
	 

	 	 	 	 
	Name:

	 	Qu Li	 	 
	Title:

	 	Legal Representative	 	 






Signature