EX-10.6 6 filename6.htm

本文件中用[****]標記的特定信息已根據《1933年證券法》第601(B)(10)(IV)條規定予以排除，因爲這些信息既不重要又可能會對註冊人造成競爭性傷害，如果公開披露。

展覽10.6

獨家選擇權協議

本獨家期權協議（以下簡稱"協議）作於2020年6月1日，中國北京，由以下各方簽署。

派對 A:	北京（HX）小馬智行科技有限公司，依據中華人民共和國法律成立並存續的有限責任公司，地址位於北京市海淀區北清路81號1區1棟16層和17層1701室

聚會 B:	中國人民的徐蘇平（稱爲“中國”），身份證號碼：[**********]; 中國人民的李恒宇（稱爲“中國), 其身份證號碼爲：[********]; 中國公民王浩軍（"中國），其身份證號碼爲：[********]; 中國公民樓天誠（"中國），其身份證號碼爲：[********]; 中國公民劉伯聰（"中國），身份證號碼：[********]; 中國公民唐風恒（"中國），身份證號碼：[********]; 中國公民翟菁（"中國），其身份證號碼爲：[********]; 周軍，中華人民共和國公民（"中國），其身份證號碼爲：[**********];
甲方 C:	北京（ZX）Pony.AI Technology Co., Ltd.，一家根據中華人民共和國法律成立並存在的有限責任公司，註冊地址位於北京市海淀區北清路68號2號樓1層01室。

甲方 D:	中國 Pony 人工智能有限公司是根據香港法律成立並存在的公司，地址位於香港九龍長沙灣道788號羅氏商業廣場6樓603室。

根據本協議，甲方、乙方、丙方和丁方以下分別簡稱爲"方"和集體稱爲"當事人".

鑑於：

B方合計持有C方100%的股權利益；並且

乙方擬共同向甲方授予一項不可撤銷的獨家選擇權，用於購買丙方的所有股權；

因此，各方一致同意如下：

股權利益的購買和出售

1.1

選項授予

甲方特此不可撤銷地向乙方授予一項不可撤銷和獨家選擇權（以下簡稱爲"股權購買選擇權）以購買或指定一個或多個人（以下分別稱爲"被指定人"）以任何時候按照乙方自行決定的行使步驟，並按照本協議1.3條所確定的價格，分期購買甲方在所允許的程度內持有的甲方C的全部或部分股權。除乙方和被指定人外，任何第三方均無權享有股權購買選擇權或與甲方B的股權利益相關的其他權利。甲方C特此同意甲方向乙方授予股權購買選擇權。對於本段和本協議，"人"指個人、法人、合資企業、合夥企業、業務、trust或非法人組織。

1.2

行使步驟

甲方行使其股權購買選擇權應遵守中華人民共和國法律法規。在行使股權購買選擇權時，甲方應向乙方發出書面通知（以下簡稱爲"股權購買通知）向乙方說明以下內容：(a)甲方決定行使股權購買選擇權；(b)甲方打算從乙方購買的股權份額（以下簡稱爲"購買的股權份額）；以及(c)購買日期/購買的股權份額的轉讓日期。

1.3

股權購買價格和付款方式

除非中華人民共和國法律要求在甲方行使選擇權時進行評估，購買的股權份額的購買價格（以下簡稱爲"股權購買價格）應等於乙方爲乙公司實際注資的購買的股權份額。股權購買價格應在購買的股權份額正式過戶至甲方名下，並根據中華人民共和國法律規定的稅收預扣繳款在權益購買價格上進行支付後的七（7）天內由甲方支付到乙方指定的帳戶。

1.4

已購權益轉讓

對於甲方行使權益購買選擇權的每次行使：

1.4.1.

乙方應及時促使丙方召集股東大會，通過決議，批准將被購買的股權從乙方轉讓給甲方和/或其指定人；

1.4.2.

乙方應根據本協議的規定與甲方和/或（如適用）受讓人就每項轉讓簽訂股權轉讓合同，並遵照股權購買通知的規定。

1.4.3.

各方應簽署所有其他必要的合同、協議或文件（包括但不限於修訂公司章程），取得所有必要的政府許可證和許可證（包括但不限於公司的營業執照），並採取所有必要行動將所購買的股權轉讓給甲方和/或其受讓人，並使甲方和/或其受讓人成爲所購買的股權的註冊所有人。爲本段和本協議的目的，"安防-半導體利益包括擔保、抵押、第三方權利或利益、任何股票期權、收購權、優先購買權、抵銷權、所有權保留或其他安全安排以太經典；但是，爲了明確起見，這不包括根據本協議和乙方股權質押協議項下產生的任何安全擔保權益。"乙方股權質押協議"在本段和本協議下指股權質押協議（以下簡稱爲"股權質押協議"）由甲方、乙方和丙方於本協議日期簽署，根據該協議，乙方質押其對丙方的全部股權予以抵押，以擔保丙方根據同日簽署的獨家業務合作協議履行義務（以下簡稱爲"獨家業務合作協議").

承諾

2.1

涉及C方的承諾事項

Party b（作為Party C的股東）和Party C謹此承諾：

2.1.1

他們將不以任何方式補充、修改或修訂公司章程、黨C的章程以及規則，增加或減少其註冊資本，或在未經A方事先書面同意的情況下改變其註冊資本結構；

2.1.2

根據健全的財務和商業標準和實踐，他們將使公司繼續存在，經營其業務，謹慎高效地進行事務，並促使C方履行《獨家業務合作協議》下的義務;

2.1.3

他們不會在此刻之後的任何時間出售、讓與、抵押，或以其他方式處置，或允許創立任何對Party C的任何資產、業務或營業收入的安全利益或設定任何負擔點，除非經Party A事先書面同意；

2.1.4

根據第3.6條規定進行合法清算後，乙方將根據單向付款基礎支付甲方接收的任何剩餘價值的全額款項，或促使該付款的發生。如果中華人民共和國法律禁止這種支付，乙方將根據中華人民共和國法律的允許程度向甲方或甲方指定的一方支付這些收益；

2.1.5

They will not incur, inherit, guarantee or permit to exist any indebtedness without the prior written consent of Party A, except for (i) indebtedness incurred in the ordinary course of business and not through a loan; and (ii) indebtedness which has been disclosed to Party A and consented to in writing by Party A;

2.1.6

They have been operating all of Party C's business in the ordinary course of business to maintain the value of Party C's assets and will refrain from any acts/omissions that might affect its operating condition and the value of its assets;

2.1.7

They will not cause Party C to enter into any material contract without the prior written consent of Party A, except for contracts entered into in the ordinary course of business (for the purposes of this Paragraph, a contract is considered material if its value exceeds RMB100,000);

2.1.8

They will not cause Party C to provide loans or credit or any form of security to any person without the prior written consent of Party A;

2.1.9

Upon Party A's request, they will provide it with all information regarding Party C's operations and financial condition;

2.1.10

If requested by Party A, they shall purchase and maintain insurance from an insurer acceptable to Party A in respect of Party C's assets and operations in an amount and with coverage consistent with that of a company carrying on similar business;

2.1.11

They will not cause or permit Party C to merge or combine with any person, or to acquire or invest in any person, or cause or permit Party C to sell its assets with a value of RMB100,000 or more, without the prior written consent of Party A;

2.1.12

They shall immediately notify Party A of any litigation, arbitration or administrative proceedings that have occurred or might occur in connection with Party C's assets, business or revenue;

2.1.13

In order to maintain Party C's ownership of all of its assets, they shall execute all such documents, take all such actions and file all such complaints or defenses against all claims as may be necessary or appropriate;

2.1.14

They shall ensure that Party C will not pay dividends in any form to its shareholders without the prior written consent of Party A, but upon written request of Party A, Party C shall immediately distribute all distributable profits to its shareholders; and

2.1.15

Upon Party A's request, they shall appoint any person designated by them to be a director of Party C and/or remove the incumbent directors of Party C.

2.2

Undertakings of Party B and Party C

Party B hereby undertakes that:

2.2.1

Party B shall not sell, transfer, pledge or otherwise dispose of, or permit the creation of any security interest encumbrance on, any legal or beneficial interest in the equity interest owned by them in Party C without the prior written consent of Party A, except for a pledge created on such equity interest pursuant to Party B's Share Pledge Agreement;

2.2.2

Party B may not request Party C to make dividends or other forms of profit distribution in respect of the equity interest owned by Party B in Party C, nor may they propose or vote in favor of any resolution of the shareholders' meeting in relation thereto. In any event, if Party B receives any profit, profit distribution or dividend from Party C, Party B shall immediately pay or transfer such profit, profit distribution or dividend to Party A or a party designated by Party A for the benefit of Party C, to the extent permitted by PRC law, as a service fee payable by Party C to Party A under the Exclusive Business Cooperation Agreement.

2.2.3

Party B shall procure that the shareholders' meeting and/or the board of directors of Party C will not approve the sale, transfer, hypothecation or other disposal of any legal or beneficial interest in, or permit the creation of any security interest encumbrance on, the equity interest owned by Party B in Party C without Party A's prior written consent, except for a pledge created on such equity interest pursuant to Party B's Share Pledge Agreement;

2.2.4

Party B shall procure that the shareholders' meeting or the board of directors of Party C will not approve any merger or combination with, or acquisition of or investment in, any person without Party A's prior written consent;

2.2.5

Party B shall immediately notify Party A of any litigation, arbitration or administrative proceedings that have taken place or might take place in connection with the equity interest owned by Party B in Party C;

2.2.6

Party B shall procure that the shareholders' meeting or board of directors of Party C shall vote for its approval of the transfer of the Purchased Equity Interests as provided herein and take any and all other actions that Party A may require;

2.2.7

In order to maintain Party B's ownership of the equity interests in Party C, Party B shall execute all such documents, take all such actions and file all such complaints or defenses against all claims as may be necessary or appropriate;

2.2.8

Upon Party A's request, Party B shall appoint any person designated by them to be a director of Party C;

2.2.9

Upon Party A's request from time to time, Party B shall immediately and unconditionally transfer their equity interests in Party C to Party A's Designee pursuant to the Equity Purchase Option hereunder, and Party B hereby waives their right of first refusal (if any) in respect of an equity transfer by another existing shareholder of Party C; and

2.2.10

Party B shall strictly comply with the provisions of this Agreement and other contracts entered into by Party B, Party C and Party A jointly or severally, perform their obligations under this Agreement and such other contracts and refrain from any act/omission which might affect the validity and enforceability hereof and thereof. If Party B shall have any residual rights in respect of the equity interests under this Agreement or under the Share Pledge Agreement entered into by the Parties hereto or under the Power of Attorney granted in favor of Party A, Party B shall not exercise such rights except in accordance with Party A's written instructions.

Representations and Warranties

Party B and Party C hereby jointly and severally represent and warrant to Party A as of the date hereof and as of each date of transfer of the Purchased Equity Interests that:

3.1

They have the authority to enter into and deliver this Agreement and any equity transfer contract to which they are a party in connection with the Purchased Equity Interests to be transferred hereunder (each, a "Transfer Contract"), and to perform their obligations hereunder and under any Transfer Contract. Party B and Party C agree to enter into a Transfer Contract with terms consistent with those set forth herein upon the exercise of the Equity Purchase Option by Party A. This Agreement and the Transfer Contracts to which they are a party constitute or will constitute legal, valid and binding obligations of, and shall be enforceable against, them in accordance with their terms;

3.2

Neither the execution and delivery of this Agreement or any Transfer Contract nor the obligations hereunder or under any Transfer Contract shall: (i) result in any violation of any applicable law of the PRC; (ii) conflict with Party C's Articles of Association, rules and regulations or other organizational documents; (iii) result in any breach of any contract or instrument to which they are a party or by which they are bound, or constitute any default under any contract or instrument to which they are a party or by which they are bound; (iv) result in any breach of any condition for the grant and/or continuation in force of any license or permit issued to any of them: or (v) result in the suspension or revocation of, or the imposition of additional conditions on, any license or permit issued to any of them;

3.3

Party B has good and marketable title to the equity interests owned by it in Party C. Party B has not created any security interest on such equity interests other than pursuant to Party B's Share Pledge Agreement;

3.4

Party C has good and marketable title to all of its assets and has not created any security interest on the said assets;

3.5

Party C has no outstanding indebtedness other than (i) those incurred in the ordinary course of business; and (ii) those which have been disclosed to and consented to in writing by Party A;

3.6

If Party C is dissolved or liquidated as required by PRC law, Party C shall, to the extent permitted by PRC law and at the lowest price permitted by PRC law, sell all of its assets to Party A or any other eligible party designated by Party A. Party C shall, to the extent applicable under PRC law then in effect, waive any payment obligations of Party A or its designated eligible party arising therefrom; or any proceeds arising from such transaction shall, to the extent applicable under PRC law then in effect, be paid to Party A or its designated eligible party as part of the service fee under the Exclusive Business Cooperation Agreement;

3.7

Party C will comply with all PRC laws and regulations applicable to asset acquisitions; and

3.8

There are no pending or threatened litigation, arbitration or administrative proceedings in relation to the equity interests in Party C, the assets of Party C or Party C itself.

Effective Date

This Agreement shall become effective as of the date of its execution by the Parties and shall be valid for a period of 10 years, renewable at the option of Party A. If Party A fails to confirm the renewal of this Agreement upon its expiration, this Agreement shall be automatically renewed until Party A delivers a confirmation letter determining the renewal period of this Agreement.

Governing Law and Dispute Resolution

5.1

Governing Law

The execution, entry into force, interpretation, performance, modification and termination of this Agreement and the resolution of disputes hereunder shall be governed by the laws duly published and publicly available in the PRC. Matters not covered by the laws duly published and publicly available in the PRC shall be governed by international legal principles and practices.

5.2

Dispute Resolution

5.3

In the event of any dispute arising out of the interpretation and performance of the provisions hereof, the Parties shall first resolve such dispute through friendly negotiation. If the Parties fail to agree on the resolution of such dispute within 30 days after any Party has requested the other Parties to resolve such dispute by negotiation, then any Party may submit such dispute to the China International Economic and Trade Arbitration Commission for resolution by arbitration in accordance with its arbitration rules then in effect. The arbitration shall take place in Beijing and shall be conducted in the Chinese language. The arbitral award shall be final and binding upon the Parties.

Taxes and Expenses

Each Party shall pay any and all transfer and registration taxes, expenses and fees incurred by or imposed on such Party in accordance with PRC law in connection with the preparation and execution of this Agreement and the Transfer Contracts and the consummation of the transactions contemplated hereunder and under the Transfer Contracts.

Notice

7.1

All notices and other communications required or permitted to be given hereunder shall be delivered by hand or sent by postage prepaid registered mail, commercial courier service or facsimile to the following address of such Party. A further acknowledgment of each notice shall be sent by e-mail. The date on which such notice is deemed to have been validly served shall be determined as follows:

7.1.1

A notice shall be deemed to have been validly delivered on the date of dispatch or rejection if it is sent by personal delivery, courier service or registered mail, postage prepaid, at the address specified for receipt of the notice.

7.1.2

A notice, if sent by fax, shall be deemed to have been validly delivered on the date of successful transmission (which shall be evidenced by an automatically generated transmission confirmation message).

7.2

For the purposes of notification, the addresses of the Parties are as follows:

Party A:	Beijing (HX) Pony AI Technology Co., Ltd.
Address:	Room 01, 1/F, Building 2, 68 Beiqing Road, Haidian District, Beijing
Attn:	LI Hengyu

Party B:	XU Suping	LI Hengyu
	Tel: [****]	Tel: [****]

	WANG Haojun	LOU Tiancheng
	Tel: [****]	Tel: [****]

	LIU Bocong	TANG Fengheng
	Tel: [****]	Tel: [****]

	ZHOU Jun	ZHAI Jing
	Tel: [****]	Tel: [****]


Party C:	Beijing (ZX) Pony.AI Technology Co., Ltd.
Address:	Room 01, 1/F, Building 2, 68 Beiqing Road, Haidian District, Beijing
Attn:	LI Hengyu

Party D:	Hong Kong Pony AI Limited
Address:	Suite 603 6/F, Laws Commercial Plaza, 788 Cheung Sha Wan Road, Kowloon, Hong Kong

7.3

Any Party may change its address for receiving notices at any time by giving notice to the other Party in accordance with the provisions of this Article.

Duty of Confidentiality

The Parties acknowledge that any oral or written information exchanged by them in connection with this Agreement is confidential. Each Party shall keep all such information confidential and may not disclose any such information to any third party without the written consent of the other Party, except (a) to the extent that such information is or becomes known to the public ( other than due to disclosure to the public by the receiving party); (b) to the extent that such disclosure is required by applicable law or the rules or regulations of any stock exchange; or (c) to the extent that such information is required to be disclosed by any Party to its legal counsel or financial advisor in connection with the transactions contemplated hereunder, where such legal counsel or financial advisor is also subject to obligations of confidentiality similar to those contained in this Article. Any disclosure of any confidential information by a person or body employed by any Party shall be deemed to be a disclosure of such confidential information by such Party, and such Party shall be legally liable for any breach of this Agreement. This Article shall survive termination of this Agreement for any reason whatsoever.

Further Assurance

The Parties agree to execute promptly such documents and to take such further actions as are reasonably necessary or desirable to carry out the provisions and purposes of this Agreement.

10.

Miscellaneous

10.1

Pre-existing Agreement

The Exclusive Option Agreement dated December 27, 2017 among Party A, Party B and Party C is superseded by this Agreement and terminated as of the date hereof.

10.2

Amendment, Modification and Supplement

Any amendment, modification and supplement to this Agreement shall be made by written agreement executed by all of the Parties.

10.3

Entire Agreement

This Agreement shall constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and shall supersede all prior negotiations, representations and contracts, both oral and written, with respect to the subject matter hereof, except for any written amendments, supplements or modifications made after the execution hereof.

10.4

Headings

The headings herein are for convenience of reading only and shall not be used to interpret, explain or otherwise affect the meaning of the provisions hereof.

10.5

Language

This Agreement is written in Chinese and is made in eleven (11) copies, one (1) copy for Party A, each person comprised in Party B, Party C and Party D, which shall be equally authentic.

10.6

Severability

If one or more provisions hereof shall be held invalid, illegal or unenforceable in any respect under any law or regulation, the validity, legality or enforceability of the remaining provisions hereof shall not be affected or impaired in any respect. The Parties shall negotiate in good faith and strive to replace such invalid, unlawful or unenforceable provision(s) with a provision(s) that is/are valid to the fullest extent permitted by law and desired by the Parties, where such valid provision(s) shall have an economic effect as similar as possible to that of such invalid, illegal or unenforceable provision(s).

10.7

Successors

This Agreement shall be binding upon and shall inure to the benefit of the respective successors of the Parties and the assigns permitted by such Parties.

10.8

Survival

10.7.1

Any obligations incurred or expiring as a result of this Agreement prior to the expiration or earlier termination hereof shall survive the expiration or earlier termination hereof.

10.7.2

The provisions of Articles 5, 7, 8 and this Article 10.9 shall survive the termination hereof.

10.9

Waiver

Any Party may waive the terms and conditions hereof, provided that such waiver is in writing and signed by the Parties. No waiver by any Party in respect of a breach by the other Parties in one case shall be deemed to be a waiver by such Party in respect of a similar breach in other cases.

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