AGREEMENT TO TRANSFER OF OPERATING AGREEMENT
THIS
AGREEMENT TO TRANSFER OF OPERATING AGREEMENT (this “Agreement”) is entered into
as of June 30, 2009, by and among Hangson Limited., a British Virgin Islands
company incorporated under the laws of the British Virgin Islands (“BVI Company”), and
Suoke Clean Energy (Tongchuan) Co., Ltd., a limited liability company organized
under the laws of the People’s Republic of China (“PRC”) and a wholly
foreign owned enterprise (“WFOE”, and with BVI
Company collectively referred to as the “Parties”). Sino Clean
Energy, Inc., a Nevada corporation, is made a party to this Agreement for the
sole purpose of acknowledging the Agreement.
WHEREAS,
in connection with a certain Consulting Services Agreement dated as of August
18, 2006 (the “Consulting
Agreement”), BVI Company entered into an Operating Agreement dated as of
even date therewith (the “Operating Agreement”)
with Shaanxi Suo’ang Biological Science & Technology Co., Ltd., a company
with joint stock limited liability organized under the laws of the PRC
(“Biological Company”), and certain shareholders of Biological Company
(collectively “Shareholders”);
WHEREAS,
BVI Company, WFOE and Biological Company have entered into an Amendment to the
Consulting Agreement dated as of even date herewith (the “Amendment”), whereby
BVI Company has transferred the Consulting Agreement and assigned all of its
rights and obligations thereunder to WFOE;
WHEREAS,
in connection with the Amendment, BVI Company desires to transfer the Operating
Agreement, and assign all of its rights and obligations thereunder, to WFOE, and
WFOE desires to accept such transfer and assignment;
WHEREAS,
Section 9 of the Operating Agreement provides that BVI Company may assign its
rights and obligations under the Operating Agreement at its discretion pursuant
to a written notice to Biological Company and that no consent from Biological
Company is required for such assignment;
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual agreements
herein contained and for other good and valuable consideration, the Parties
agree as follows:
A. TRANSFER OF THE OPERATING
AGREEMENT.
(1) BVI
Company hereby transfers the Operating Agreement, and assigns all of its rights
and obligations thereunder, to WFOE, and WFOE hereby accepts such transfer and
assignment (collectively the “Transfer”).
(2) In
accordance with Section 9 of the Operating Agreement, BVI Company shall notify
Biological Company of the Transfer pursuant to a written notice, the form of
which is attached hereto as Exhibit
A.
(3) WFOE
shall cooperate with Biological Company and take all actions necessary to
replace BVI Company as a guarantor to such guarantee agreements, if any, entered
into by BVI Company pursuant to Section 1 of the Operating
Agreement.
(4) WFOE
may not transfer this Agreement and, pursuant to the Transfer, its rights and
obligations under the Operating Agreement, without the prior written consent of
BVI Company.
B. GENERAL
PROVISIONS.
(1) Notices. All notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if delivered personally, sent by overnight courier or
mailed by registered or certified mail (postage prepaid and return receipt
requested) to the party to whom the same is so delivered, sent or mailed at
addresses set forth as follows (or at such other address for a party as shall be
specified by like notice):
If to BVI
Company:
Hangson
Limited
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Address:
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0xx
Xxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxx
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Xxxxxxx,
Xxxxxxx Xxxxxx Xxxxxxx.
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Facsimile:
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Attn:
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Chairman
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If
to WFOE:
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Suoke
Clean Energy (Tongchuan) Co., Ltd.
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Address:
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Dong
Xxx Xx Town, Xxx Xxxx District, Tongchuan
City
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Shaanxi
Province, China
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Facsimile:
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Attn:
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Chairman
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(2) Interpretation. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement. References to Sections and Articles refer to sections and
articles of this Agreement unless otherwise stated.
(3) Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the Parties shall negotiate in good faith to modify this
Agreement to preserve each party’s anticipated benefits under this
Agreement.
(4) Miscellaneous. This
Agreement (together with all other documents and instruments referred to
herein): (a) constitutes the entire agreement and supersedes all other prior
agreements and undertakings, both written and oral, among the Parties with
respect to the subject matter hereof; (b) except as expressly set forth herein,
is not intended to confer upon any other person any rights or remedies hereunder
and (c) shall not be assigned by operation of law or otherwise, except as may be
mutually agreed upon by the Parties.
(5) Governing Law. This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the People’s Republic of China.
(6) Counterparts and Facsimile
Signatures. This Agreement may be executed in two or more
counterparts, which together shall constitute a single
agreement. This Agreement and any documents relating to it may be
executed and transmitted to any other party by facsimile, which facsimile shall
be deemed to be, and utilized in all respects as, an original, wet-inked
manually executed document.
(7) Amendment. This
Agreement may be amended, modified or supplemented only by an instrument in
writing executed by BVI Company and WFOE.
(8) Parties In
Interest. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective heirs, legal representatives, successors and assigns of the
Parties.
(9) Waiver. No
waiver by any party of any default or breach by another party of any
representation, warranty, covenant or condition contained in this Agreement
shall be deemed to be a waiver of any subsequent default or breach by such party
of the same or any other representation, warranty, covenant or
condition. No act, delay, omission or course of dealing on the part
of any party in exercising any right, power or remedy under this Agreement or at
law or in equity shall operate as a waiver thereof or otherwise prejudice any of
such party’s rights, powers and remedies. All remedies, whether at
law or in equity, shall be cumulative and the election of any one or more shall
not constitute a waiver of the right to pursue other available
remedies.
[Remainder
of page left blank intentionally.]
SIGNATURE
PAGE
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by
their legal representatives and duly authorized representatives on their behalf
as of the date first set forth above.
BVI
COMPANY:
Hangson
Limited
By:
Name: REN
Baowen
Title:
Director
WFOE:
Suoke
Clean Energy (Tongchuan) Co., Ltd.
By:
Name:
REN, BaowenTitle:
Chairman
ACKNOWLEDGED
BY
Sino
Clean Energy, Inc.
By:___________
Name:
REN, Baowen
Title:
Chairman
EXHIBIT
A
NOTICE OF
TRANSFER AND ASSIGNMENT OF OPERATING AGREEMENT
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To:
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The
Board of Directors of
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Shaanxi
Suo’ang Biological Science & Technology Co.,
Ltd
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From:
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Hangson
Limited
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Date:
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June
30, 2009
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Dear
Members of the Board of Directors:
This
letter shall serve as formal notice of the transfer by BVI Company of that
certain Operating Agreement dated as of August 18, 2006 by and among BVI
Company, Biological Company and certain shareholders of Biological Company (the
“Operating
Agreement”). Effective as of June 30, 2009 (the “Transfer Date”), the
Operating Agreement shall be deemed transferred, and all of BVI Company’s rights
and obligations thereunder assigned, to Suoke Clean Energy (Tongchuan) Co.,
Ltd., a limited liability company organized under the laws of the People’s
Republic of China and a wholly foreign owned enterprise (“WFOE”). WFOE
is the wholly owned subsidiary of Wiscon Holdings Limited, a company
incorporated under the laws of the Special Administration Region of Hong Kong
(“HK Wiscon”),
and HK Wiscon is the wholly owned subsidiary of BVI Company which is the wholly
owned subsidiary of Sino Clean Energy, Inc. The transfer and
assignment is made pursuant Section 9 of the Operating
Agreement. From and after the Transfer Date, WFOE shall assume from
BVI Company all of its rights, powers, privileges and obligations under the
Operating Agreement, and shall be entitled to all remedies
thereunder.
Very
sincerely,
Hangson
Limited
By:
Name:
REN BaowenTitle:
Chairman
