Option Agreement between Beijing Ao Hang Construction Material Technology Co., Ltd. and Xianfu Han
between
Beijing
Ao Hang Construction Material Technology
Co.,
Ltd.
and
Xxxxxx
Xxx
CONTENTS
|
Clause
|
Page
|
||
|
1.
|
GRANT
OF OPTION
|
1
|
|
|
2.
|
EXERCISE
OF OPTION AND COMPLETION OF TRANSACTION
|
1
|
|
|
3.
|
FULFILMENT
OF OPTION
|
3
|
|
|
4.
|
REPRESENTATIONS
AND WARRANTIES
|
3
|
|
|
5.
|
TAX
|
6
|
|
|
6.
|
LIABILITIES
FOR BREACH OF CONTRACT
|
6
|
|
|
7.
|
APPLICABLE
LAW AND SETTLEMENT OF DISPUTES
|
6
|
|
|
8.
|
CONFIDENTIALITY
|
7
|
|
|
9.
|
SUPPLEMENTARY
PROVISIONS
|
8
|
|
|
APPENDIX
A FORM OF AGREEMENT
ON TRANSFER OF EQUITY INTEREST
|
11
|
||
|
1.
DEFINITIONS AND INTERPRETATIONS
|
12
|
||
|
2. REPRESENTATIONS
AND WARRANTIES
|
13
|
||
|
3. ASSIGNMENT
OF EQUITY INTEREST
|
13
|
||
|
4. SUPPLEMENTARY
PROVISIONS
|
14
|
||
|
ANNEX
1 FORM OF RESOLUTION OF SHAREHOLDERS' MEETING
|
17
|
||
|
ANNEX
2 FORM OF POWER OF ATTORNEY
|
18
|
||
|
APPENDIX
B FORM OF WAIVER OF
RIGHT OF FIRST REFUSAL
|
19
|
||
This
Option Agreement (this "Agreement")
is
entered into by the following parties on November __28___,
2007
in Beijing, the People's Republic of China ("China"):
|
(1)
|
Beijing
Ao Hang Construction Material Technology Co., Ltd., a company established
in China and having its registered address at 1701 Yingu Mansion,
Xx. 0
Xxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx, ("Ao Hang");
and
|
| (2) |
Xxxxxx
Xxx, whose China's ID number is 000000000000000000, with his principal
domicile at
Xx.000 Xxxx, Xxxxx 0, Xxxxxxxx 0, Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx,
Xxxxx. (“XFH”)
|
(hereinafter
the parties referred to individually as a "Party"
and
collectively as the "Parties".)
WHEREAS,
|
(A)
|
XFH
holds 60% of the equity interest of Beijing
Xin Ao Concrete Co., Ltd. (“XinAo”)
(the “Equity
Interest”);
and
|
|
(B)
|
The
Parties agree to enter into this
Agreement.
|
NOW
THEREFORE,
the
Parties hereby agree as follows:
| 1. |
GRANT
OF OPTION
|
| 1.1 |
Option
|
XFH
grants to Ao Hang the option (the “Option”) to purchase the Equity Interest, at
the exercise price equal to the actual capital contribution made by XFH to
XinAo.
| 1.2 |
Price
of Option
|
In
consideration of obtaining the Option, Ao Hang has paid to XFH One Renminbi
on
the date of this Agreement. XFH acknowledges that such consideration has
been
paid and is deemed to be sufficient.
| 2. |
EXERCISE
OF OPTION AND COMPLETION OF
TRANSACTION
|
| 2.1 |
Time
of Exercise
|
|
2.1.1
|
XFH
agrees that, subject to compliance with legal restrictions on foreign
investment under applicable laws of China, Ao Hang may exercise
the Option
in whole or in part to acquire all or part of the Equity Interest,
at any
time after the signing of this
Agreement.
|
|
2.1.2
|
For
the avoidance of doubt, XFH hereby agrees that Ao Hang may exercise
the
Option, without any limits on the frequency of its exercise, until
Ao Hang
acquires all of the Equity
Interest.
|
|
2.1.3
|
XFH
agrees that Ao Hang may designate a third party to exercise the
Option on
its behalf, provided that Ao Hang shall give 3-days prior written
notice
to XFH.
|
1
| 2.2 |
Assignment
|
XFH
agrees that Ao Hang may assign all or part of the Option to any third party.
In
the event of any such assignment and upon written notice of such assignment
from
Ao Hang to XFH, the Option may be exercised by such third party pursuant
to the
terms and conditions of this Agreement. Such third party shall be deemed
to be a
party to this Agreement and shall assume Ao Hang's rights and obligations
under
this Agreement.
| 2.3 |
Notice
Requirements
|
|
2.3.1
|
If
Ao Hang intends to exercise the Option, it shall issue an irrevocable
written notice to XFH no later than 3 days prior to each Completion
Date
(as defined below), specifying:
|
|
2.3.1.1
|
effectiveness
date of the purchase ("Completion
Date");
|
|
2.3.1.2
|
name
of the party registering the Equity
Interest;
|
|
2.3.1.3
|
percentage
of the Equity Interest to be purchased from
XFH;
|
|
2.3.1.4
|
method
of payment; and
|
|
2.3.1.5
|
related
authorization documents, such as the document authorizing the third
party
to exercise the Option.
|
|
2.3.2
|
For
the avoidance of doubt, the Parties expressly agree that Ao Hang
has the
right to exercise the Option and to decide whether or not to register
the
Equity Interest in a third party's
name.
|
| 2.4 |
Appointment
of Director and Senior Management
Personnel
|
After
the
execution of this Agreement, Ao Hang shall have the right to nominate persons
to
XinAo to be appointed as directors and senior management personnel (including
but not limited to general manager, deputy general manager, financial
controller, marketing director, technology director). XFH shall, to the extent
applicable PRC law requires a shareholder vote, vote his shares of XinAo
to
appoint the persons nominated by Ao Hang to hold the positions as directors
of
XinAo, and vote its shares to instruct the executive director of XinAo to
appoint the persons nominated by Ao Hang to hold the positions as senior
management of XinAo.
| 2.5 |
Completion
of Transactions
|
On
the
Completion Date, Ao Hang shall pay to XFH the exercise price to purchase
the
Equity Interest set out in Article 1 and XFH shall acknowledge the receipt
and
sufficiency of the consideration.
2
| 3. |
FULFILMENT
OF OPTION
|
| 3.1 |
Agreement
on Transfer of Equity Interest
|
When
signing and delivering this Agreement, XFH shall at Ao Hang's request sign
(or,
in the case of the waiver letter, use commercially reasonable efforts to
procure
the execution of) and deliver one or more agreement(s) for the transfer of
equity interest as set out in the Appendix A hereto ("Equity
Transfer Agreement")
and
other necessary documents, including the waiver letter in the form of Appendix
B
("Ancillary
Documents")
intended to cause all or part of Equity Interest to be effectively transferred
to Ao Hang or its designated person. The Equity Transfer Agreement and Ancillary
Documents shall be held in the custody of Ao Hang. On the Completion Date,
when
Ao Hang exercises the Option and pays the price for the Equity Interest,
Ao Hang
shall promptly deliver the Equity Transfer Agreement and Ancillary Documents
relating to such Equity Interest to its designated person who shall be entitled
to insert the name of the transferee (if not already done so), date the signed
Equity Transfer Agreement and Ancillary Documents and submit the same to
the
relevant authorities in order to give full effect to the transfer of the
Equity
Interest.
| 3.2 |
Resolution
of Shareholders' Meeting
|
Notwithstanding
the provisions of the above Article 3.1, at the time of the signing and delivery
of this Agreement, XFH shall at Ao Hang's request sign (and use commercially
reasonable efforts to procure that Weili
He
will
sign) and deliver one or more resolution(s) of the shareholders' meeting
of
XinAo, substantially in the form of Annex 1 of Appendix A hereto (each referred
to as a "Resolution").
The
Resolution shall approve the following matters:
|
3.2.1
|
completion
of the transfer of all or part of the Equity Interest to Ao Hang
or its
designated person; and
|
|
3.2.2
|
other
reasonable matters that Ao Hang may
require.
|
Each
Resolution shall be held in the custody of Ao Hang. On each Completion Date
when
Ao Hang exercises the Option and pays the price for the Equity Interest,
Ao Hang
or its designated person shall date the Resolution as of the date of
exercise.
| 4. |
REPRESENTATIONS
AND WARRANTIES
|
| 4.1 |
Representations
and Warranties
|
XFH
represents and warrants to Ao Hang:
|
4.1.1
|
he
has full authority to sign this
Agreement;
|
|
4.1.2
|
this
Agreement constitutes a valid and binding obligation of XFH, enforceable
in accordance with its terms;
|
|
4.1.3
|
the
signing of this Agreement and the performance of any of his obligations
hereunder neither breaches any laws, regulations or contracts binding
upon
him, nor requires any authorization or approval from the government;
|
|
4.1.4
|
to
the best of his knowledge, he is not involved in any lawsuit, arbitration
or other juridical or administrative proceedings which may have
a material
and adverse effect upon this Agreement and performance
hereof;
|
3
|
4.1.5
|
he
has disclosed to Ao Hang all documents issued by any governmental
authority that may have a material adverse effect upon the performance
of
the obligations hereunder;
|
|
4.1.6
|
other
than the pledge of Equity Interest in favor of Ao Hang (or its
designated
third party), the Equity Interest held by XFH in XinAo is free
of any
lien, mortgage, pledge or third party's
rights;
|
|
4.1.7
|
except
in favor of Ao Hang (or its designated third party), the Equity
Interest
held by XFH shall remain intact, and is free of any lien, mortgage,
pledge
or third party's right, and XFH will not transfer, grant, pledge
or
otherwise dispose of his Equity
Interest;
|
|
4.1.8
|
the
Option granted by XFH to Ao Hang is an exclusive right, and the
Option or
any similar right will not be granted to any third party in any
way and no
rights or obligations exist that would in any way impair Ao Hang's
rights
under this Agreement.
|
XFH
further represents and warrants to Ao Hang that he owns 60% of the Equity
Interests of XinAo.
The
Parties hereby agree that as of each Completion Date, the representations
and
warranties set out from Article 4.1.1 to Article 4.1.8 shall be repeated,
and
shall be deemed to be given as of such Completion Date.
| 4.2 |
Undertakings
|
XFH
undertakes to Ao Hang that:
|
4.2.1
|
he
will complete the formalities necessary for registering Ao Hang
and its
designated person as the lawful shareholder of XinAo, including
but not
limited to, assisting Ao Hang in inserting the name of the transferee
in
the Equity Transfer Agreement, dating the signed Equity Transfer
Agreement
and submitting the Equity Transfer Agreement and Ancillary Documents
to
the relevant industry and commerce administration department for
the
purpose of amending the articles of association and updating the
shareholders' register, and other alteration
formalities.
|
|
4.2.2
|
he
shall take all necessary actions to execute all necessary documents
and
carry out all necessary registrations within XFH's control (including
registration with the Ministry of Information Industries or its
local
branches) to transfer the Equity Interest in accordance with applicable
laws upon the exercise of the
Option.
|
|
4.2.3
|
he
will not seek to influence the management of XinAo in any manner,
and
without limiting the foregoing:
|
|
4.2.3.1
|
he
will not request XinAo to distribute profits, funds, assets or
property to
XFH or Weili He or any of their
Affiliates.
|
4
|
4.2.3.2
|
if
he receives any dividends from XinAo with respect to the Equity
Interest,
XFH shall pay to Ao Hang an amount equal to such dividends within
7 days
thereafter.
|
|
4.2.3.3
|
he
will not engage in the following activities and not approve in
his
capacity as a shareholder (without the prior written consent of
Ao Hang)
the engagement of XinAo in any of the following activities unless
the
prior written consent of Ao Hang is
obtained:
|
|
(a)
|
to
create or undertake debts that are not in the ordinary course of
business
of XinAo, or are in the ordinary course of the business of XinAo
but
are in excess of US$5,000;
|
|
(b)
|
to
create or undertake any mortgage, pledge or any other type of encumbrance
on any of XinAo's existing properties or properties acquired in
the
future;
|
|
(c)
|
to
acquire assets of any third party on behalf of XinAo, or to execute
any
agreement, arrangement, commitment or memorandum for the
same;
|
|
(d)
|
to
sell, lease or otherwise dispose of any assets of XinAo, or to
execute any
agreement, arrangement, commitment or memorandum for the
same;
|
|
(e)
|
to
borrow or lend money to any third party on behalf of XinAo, or
to execute
any agreement, arrangement, commitment or memorandum for the
same;
|
|
(f)
|
to
assume any obligation, give a guarantee or endorsement for any
third party
on behalf of XinAo or assume responsibility in whatever form for
any third
party's obligation on behalf of XinAo, or to execute any agreement,
arrangement, commitment or memorandum for the
same;
|
|
(g)
|
to
approve the annual budget and annual business plan and any material
deviations thereof;
|
|
(h)
|
to
make any capital expenditure by XinAo other than in the ordinary
course of
its business or greater than an aggregate of US$25,000 in any 12
month
period;
|
|
(i)
|
to
commit any act that may endanger the legitimate existence or commercial
interest of XinAo;
|
|
(j)
|
to
take any action that, according to the effective articles of association
of XinAo, requires a unanimous consent of all shareholders or the
executive director of XinAo;
|
|
(k)
|
to
cause XinAo to engage in any business which is not expressly specified
in
its business license;
|
5
|
(l)
|
when
exercising his rights in the capacity as a shareholder of XinAo
(including
but not limited to the exercise of his voting rights), to adopt
any
resolution or otherwise take any shareholder action that conflicts
with or
jeopardises the rights and interests of Ao Hang or its Affiliates
or
direct or indirect parent; and
|
|
4.2.4
|
He
will provide Ao Hang with information on XinAo's business operations
and
financial condition which he is entitled to receive in his capacity
as a
shareholder at Ao Hang's request (excluding information provided
by XinAo
).
|
|
4.2.5
|
He
will immediately notify Ao Hang of the occurrence or possible occurrence
of any litigation, arbitration or administrative proceedings relating
to
XinAo's assets, business and revenue of which he may become aware.
|
|
4.2.6
|
At
Ao Hang's written request, XFH will approve in his capacity as
a
shareholder any action of XinAo that is not in violation of any
applicable
laws.
|
For
purposes of this Clause 4.2, "Affiliate" means, in respect of an entity,
any
legal entity that directly or indirectly controls, is controlled by or is
under
the common control of the first mentioned entity. For the purposes of this
Agreement, "control" means the power, directly or indirectly, to direct the
management and policies of such entity.
| 5. |
TAX
|
| 5.1 |
Tax
|
Ao
Hang
shall reimburse XFH or directly pay to the appropriate tax authorities all
of
XFH's taxes that may arise from the execution and performance of this Agreement.
Ao Hang shall bear any of its taxes that may arise from the execution and
performance of this Agreement.
| 6. |
LIABILITIES
FOR BREACH OF CONTRACT
|
| 6.1 |
XFH's
liability for breach
|
The
sole
remedy available to Ao Hang for the breach by XFH of any of its representations,
warranties, undertakings or obligations under this Agreement shall be the
exercise of the Option.
| 7. |
APPLICABLE
LAW AND SETTLEMENT OF
DISPUTES
|
| 7.1 |
Applicable
Law
|
The
execution, validity, interpretation, performance of this Agreement and
resolution of disputes hereunder shall be governed by the laws of China.
6
| 7.2 |
Consultation
|
In
case
of disputes resulting from the interpretation or performance of this Agreement,
the Parties shall attempt to solve such disputes through friendly consultation
or via mediation by a neutral third party. If such dispute fails to be solved
within 30 days after the commencement of consultation, either party may submit
such disputes for arbitration.
| 7.3 |
Arbitration
|
|
7.3.1
|
Any
dispute or difference of any kind whatsoever arising out of or
in
connection with this Agreement, including any question in connection
with
the existence, construction, interpretation, validity, termination
or
implementation of this Agreement, shall be submitted to the Shenzhen
branch of China International Economic and Trade Arbitration Commission
("CIETAC"),
for arbitration in Shenzhen which shall be conducted in accordance
with
CIETAC's rules.
|
|
7.3.2
|
The
arbitration tribunal shall comprise of three (3) arbitrators. Each
Party
shall be entitled to appoint one (1) arbitrator and the arbitrators
so
appointed shall appoint a third (3rd)
arbitrator who shall preside as Chairman. The Chairman shall not
be a
citizen or national of the same country as either of the
Parties.
|
|
7.3.3
|
The
language to be used in any arbitral proceedings shall be
Chinese.
|
|
7.3.4
|
The
costs of arbitration shall be borne by the losing Party, unless
otherwise
determined by the arbitration
award.
|
|
7.3.5
|
The
Parties further acknowledge that monetary damages alone shall not
adequately compensate Ao Hang for the breach of XFH's undertakings
in this
Agreement and therefore agree that if a breach or threatened breach
of any
such undertaking occurs, Ao Hang shall be entitled to apply or
petition
for, and XFH shall not resist, object or challenge, injunctive
relief
compelling specific performance of such undertakings or immediate
cessation of such actions in order to be in compliance with the
terms of
this Agreement in any competent court of
China.
|
| 8. |
CONFIDENTIALITY
|
| 8.1 |
Confidential
Information
|
This
Agreement and its appendixes attached hereto shall be confidential. Neither
party shall disclose this Agreement and its appendixes attached hereto to
any
third party (except for the disclosure only for the purpose of the above
Article
2.2 and with the prior written consent of the Parties).
7
| 8.2 |
Exception
|
If
certain disclosure is expressly required by law, court, arbitral tribunal
or
competent administration authority, such disclose made by either party shall
not
be deemed a breach of the above Article 8.1.
| 9. |
SUPPLEMENTARY
PROVISIONS
|
| 9.1 |
Term
|
This
Agreement shall come into force from the date of the execution of this Agreement
by the Parties or their authorized representative until the date when Ao
Hang
obtains all the Equity Interest, subject to a maximum term of 20 years.
| 9.2 |
Entire
Agreement
|
|
9.2.1
|
This
Agreement and its appendixes constitute the entire agreement between
the
Parties with respect to the above subject matter, and shall supersede
all
previous discussions, consultations and agreements. This Agreement
can be
amended only by a written agreement jointly signed by the
Parties.
|
|
9.2.2
|
The
appendixes attached hereto constitute an inseparable part of this
Agreement, and have the same legal force as this
Agreement.
|
| 9.3 |
Notice
|
|
9.3.1
|
Unless
notified by the other party of address change, all notices or other
correspondences required in performing this Agreement shall be
delivered
by hand, express delivery, fax or registered mail to the following
addresses:
|
Ao
Hang:
Address:
1701 Yingu Mansion, Xx. 0 Xxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
Xxxxx
Tel:
000-00000000
Fax:
000-00000000
XFH:
Address:
Xx.000
Xxxx, Xxxxx 0, Xxxxxxxx 0, Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
Xxxxx.
Tel:
000-00000000
Fax:
000-00000000
Notices
and correspondences shall be deemed to be served if:
|
9.3.1.1
|
sent
by fax: the time displayed on the transmission record, however,
if the
displayed time is after 5:00 pm of the sending date, or the sending
day is
not a business day of the location where the recipient is located,
the
effective delivery date shall be the next business
day;
|
8
|
9.3.1.2
|
sent
by hand delivery (including courier): the day when the recipient
signs and
accepts the delivery;
|
|
9.3.1.3
|
sent
by registered mail, the fifteenth day from the date when the post
office
issues a receipt thereof.
|
| 9.4 |
Binding
Force
|
This
Agreement is binding upon the Parties and their successors, representatives
and
assigns.
| 9.5 |
Language
and Counterpart
|
This
Agreement is written in English and Chinese. In the event of any discrepancy
between the two versions, the English version shall prevail. This Agreement
shall be executed in [two (2)] originals in English and [two (2)] originals
in
Chinese, with each Party holding one (1) original in each language.
| 9.6 |
Calendar
Day and Business Day
|
Any
reference to a day in this Agreement means a calendar day. Business day means
any day on which commercial banks in China are open for business.
| 9.7 |
Headings
|
The
headings contained herein are for convenience only and do not affect the
interpretation of this Agreement.
| 9.8 |
Singular
and Plural Form
|
As
required by the context, words importing the singular include the plural
and
vice versa.
| 9.9 |
Matters
Not Covered
|
Matters
not covered in this Agreement shall be settled by the Parties through
consultation, in accordance with the provisions of the laws of China.
| 9.10 |
Representations,
Warranties, Undertakings and Obligations to
Survive
|
The
representations, warranties, undertakings and obligations of the Parties
provided in this Agreement, or made by or on behalf of a Party, shall be
in full
force and effect and shall remain valid after the delivery of the Equity
Interest and payment of considerations, regardless of any investigation (or
statement on any investigation result) made by or on behalf of a Party.
9
IN
WITNESS WHEREOF,
this
Agreement is signed by the duly authorized representatives of the Parties
as of
the date first written above.
Beijing
Ao Hang Construction Material Technology Co., Ltd.
Authorized
representative: Weili He
Name:
Title:
Legal Representative
Company
seal:
Xxxxxx
Xxx
Signed
by:
10
Appendix
A
Form
of agreement on transfer of equity interest
Agreement
on Transfer of Equity Interest
Xxxxxx
Xxx
and
[*]
11
This
Agreement on Transfer of Equity Interest ("Equity
Transfer Agreement")
is
entered into by the following two parties on ____________, in Beijing, the
People's Republic of China ("China"):
|
(1)
|
Xxxxxx
Xxx,
(the "Assignor");
and
|
|
(2)
|
[*],
[*] (the "Assignee").
|
The
Assignor and the Assignee are hereinafter referred to individually as a
"Party"
and
collectively as the "Parties".
WHEREAS,
|
A.
|
The
Assignor is a shareholder of Beijing Xin Ao Concrete Co., Ltd.
("XinAo"),
which is a limited liability company established on July 4, 2002
pursuant
to the PRC Laws (as defined below).
|
|
B.
|
The
Assignor has 60% of the equity interest in XinAo.
|
|
C.
|
Subject
to the terms and conditions of this Equity Transfer Agreement,
the
Assignor now intends to assign to the Assignee, and the Assignee
is
willing to accept from the Assignor, all the equity interest
("Equity
Interest")
of the Assignor in XinAo.
|
NOW
THEREFORE,
the
Parties hereby agree as follows:
| 1. |
DEFINITIONS
AND INTERPRETATIONS
|
| 1.1 |
Definitions
|
Unless
otherwise agreed herein (as defined below), words or expressions contained
in
this Equity Transfer Agreement shall have the same meaning as those defined
in
the Option Agreement (the "Agreement"),
dated
as of November ______, 2007 between Ao Hang, a company organized under the
laws
of China (the "Ao
Hang")
and
the Assignor.
"Effective
Date"
means
the date of this Agreement, or if government or regulatory approvals are
necessary to effectuate the transfer, the date on which all such approvals
are
obtained.
"PRC
Laws" means
the
PRC laws and regulations that have been promulgated and now remain in force.
"Resolution
of Shareholders' Meeting"
means
the written resolution of the shareholders' meeting of XinAo, pursuant to
which
the shareholders agree that the Equity Interest shall be assigned in accordance
with the Equity Transfer Agreement and waive their rights of first refusal
regarding the Equity Interest.
| 1.2 |
Interpretation
|
In
this
Agreement, headings are for convenience only and do not affect the
interpretation of this Agreement. A reference to an Article or Appendix herein
is a reference to that Article or Appendix of the Equity Transfer Agreement.
Words importing the singular include the plural and vice versa. Unless otherwise
provided herein, a reference to day, month or year means a calendar day,
month
or year. Business day refers to the day on which commercial banks in China
are
open for business. Masculine words herein include the feminine meaning and
vice
versa.
12
| 2. |
REPRESENTATIONS
AND WARRANTIES
|
| 2.1 |
General
representations
|
Each
of
the Parties hereby represents and warrants to the other party that it has
full
capacity and authorization to execute this Equity Transfer Agreement, and
perform its obligations under this Equity Transfer Agreement, subject to
compliance with legal restrictions on foreign investment under applicable
PRC
Laws.
| 2.2 |
Assignor
|
The
Assignor further represents and warrants that:
| 2.2.1 |
he
is the legitimate holder of the Equity Interest;
|
| 2.2.2 |
except
for the pledge under the Equity Pledge Agreement dated as of November
______, 2007 by and among the Assignor and Beijing Ao Hang Construction
Material Technology Co., Ltd., such Equity Interest is free of
any
security interest.
|
| 3. |
ASSIGNMENT
OF EQUITY INTEREST
|
| 3.1 |
Assignment
of equity interest
|
The
Assignor hereby assigns all of the Equity Interest to the Assignee. The Assignee
agrees to accept such Equity Interest from the Assignor.
| 3.2 |
Assignment
of rights and obligations
|
As
at the
Effective Date, all rights and obligations in relation to the Equity Interest
shall be assigned from the Assignor to the Assignee.
| 3.3 |
Necessary
measures
|
The
Assignor undertakes to execute all necessary documents and take all necessary
measures in a timely manner, so as to give effect to this Equity Transfer
Agreement, including but not limited to the following:
|
3.3.1
|
execute
the resolution of shareholders' meeting substantially in the form
of Annex
1; and provide the Assignee with a copy of the resolution of shareholders'
meeting; and
|
|
3.3.2
|
complete
any procedures within its control necessary for the full effectiveness
of
the Equity Transfer Agreement pursuant to PRC Laws, including but
not
limited to, completing the registration of the change in shareholder
with
the relevant industry and commerce administration department, updating
the
shareholders' list of XinAo and delivering the updated shareholders'
list
to the Assignee.
|
13
| 3.4 |
Cooperation
with the Assignee
|
The
Assignor further undertakes:
|
3.4.1
|
if
the formalities provided in Article 3.3.2 are delayed, the Assignor
shall
promptly notify the Assignee of the reason for such delay and the
revised
Effective Date; and
|
|
3.4.2
|
fully
assist the Assignee in performing the Equity Transfer Agreement,
including
but not limited to providing the Assignee with access to the related
documents or information.
|
| 3.5 |
Power
of attorney
|
The
Assignor further undertakes that, as of the date first written above, he
has
full authority to entrust an appropriate entity or individual to, on his
behalf,
handle all matters related to this Equity Transfer Agreement (including but
not
limited to the matters related to this Article 3.5), in the event of the
Assignor's death, emigration, incapacity or other failure to perform his
obligations under this Equity Transfer Agreement. The above power of attorney
shall be substantially in the form of Annex 2, and a copy of such power of
attorney shall be provided to the Assignee.
| 4. |
SUPPLEMENTARY
PROVISIONS
|
| 4.1 |
Notice
and service
|
|
4.1.1
|
All
notices and communications between the Parties shall be in writing,
either
in English or Chinese, and delivered by fax, hand (including express
delivery) or registered mail to the following appropriate
addresses:
|
Assignor:
Xxxxxx
Xxx
Address:
Xx.000 Xxxx, Xxxxx 0, Xxxxxxxx 0,Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
Xxxxx.
Telephone:
000-00000000
Fax:
000-00000000
Assignee:
[*]
Address:
[*]
Tel:
[*]
Fax:
[*]
Recipient:
[*]
| 4.2 |
Time
of service
|
Notices
and communications shall be deemed to be served if:
14
|
4.2.1
|
sent
by fax: the time displayed on the transmission record, however,
if the
displayed time is after 5:00 pm of the sending date, or the sending
day is
not a business day of the location where the recipient is located,
the
effective delivery date shall be the next business day;
|
|
4.2.2
|
sent
by hand delivery (including courier): the day when the recipient
or any
staff at the recipient's location signs and accepts the delivery;
or
|
|
4.2.3
|
Sent
by registered mail, the third day after the date when the post
office
issues a receipt thereof.
|
| 4.3 |
Amendment
|
The
provisions of this Equity Transfer Agreement can be waived, revised or amended
only by a written instrument signed by the Parties.
| 4.4 |
Non-waiver
|
The
failure by either party to exercise or its delay in exercising any right
under
this Equity Transfer Agreement shall not be deemed a waiver of such
right.
| 4.5 |
Severability
|
The
invalidity of any clause under this Agreement shall not affect the validity
of
any other clauses unrelated to such clause.
| 4.6 |
Tax
and expenses
|
Each
of
the Parties shall bear its respective taxes arising from the execution and
performance of this Agreement.
| 4.7 |
Successor
|
This
Equity Transfer Agreement is binding upon the respective successors and assigns
(if any) of the Parties, and upon any individual designated by the Assignor
when
it becomes necessary for the Assignor to use the power of attorney provided
in
the appendix in case of the occurrence of events set out in the above Article
3.5.
| 4.8 |
Applicable
Law
|
The
execution, validity, interpretation, performance of this Equity Transfer
Agreement and resolution of disputes hereunder shall be governed by the PRC
Laws.
| 4.9 |
Arbitration
|
| 4.9.1 |
Any
dispute or difference of any kind whatsoever arising out of or
in
connection with this Agreement, including any question in connection
with
the existence, construction, interpretation, validity, termination
or
implementation of this Agreement, shall be submitted to Shenzhen
branch of
China International Economic and Trade Arbitration Commission
("CIETAC"),
for arbitration in Shenzhen which shall be conducted in accordance
with
CIETAC's rules.
|
| 4.9.2 |
The
arbitration tribunal shall comprise of three (3) arbitrators. Each
Party
shall be entitled to appoint one (1) arbitrator and the arbitrators
so
appointed shall appoint a third (3rd)
arbitrator who shall preside as Chairman. The Chairman shall not
be a
citizen or national of the same country as either of the
Parties.
|
15
| 4.9.3 |
The
language to be used in any arbitral proceedings shall be
Chinese.
|
| 4.9.4 |
The
costs of arbitration shall be borne by the losing Party, unless
otherwise
determined by the arbitration
award.
|
| 4.10 |
Language
|
This
Equity Transfer Agreement is written in English.
IN
WITNESS WHEREOF,
this
Equity Transfer Agreement is signed by the duly authorized representatives
of
the Parties as of the date first written above.
Assignor:
Xxxxxx
Xxx
Signed
by:
Assignee:
[*]
Authorized
representative: [*]
Name:
[*]
Title:
[*]
Common
seal: [*]
16
Annex
1
Form
of resolution of shareholders' meeting
Beijing
Xin Ao Concrete Co., Ltd. (the "Company")
This
written resolution of the shareholders' meeting of the Company is formally
adopted at [*] on [*]
| 1. |
Attending
shareholders: Mr.
Weili He
|
Xx.
Xxxxxx Xxx
|
2.
|
The
matters related to transfer of equity interest provided in the
Agreement
on Transfer of Equity Interest ("Equity
Transfer Agreement")
entered into by and between Xxxxxx Xxx and [*] on [*] were discussed
at
the shareholders' meeting.
|
|
3.
|
The
shareholders' meeting unanimously agrees to make the following
resolution:
|
|
(a)
|
confirm
and approve the Equity Transfer Agreement;
|
|
(b)
|
approve
Xxxxxx Xxx to transfer its equity interest in the Company to [*]
pursuant
to the provisions of the Equity Transfer Agreement; and
|
|
(c)
|
the
shareholders hereby waive their respective right of first refusal
(entitled in accordance with the PRC laws and the articles of association
of the Company) regarding the equity interest to be assigned by
the other
shareholders of the Company under the Equity Transfer Agreement.
|
Signed
by:
Signed
by:
Date:
17
Annex
2
Form
of power of attorney
Power
of Attorney
To
Whom
It May Concern,
I,
the
undersigned, a founder and a shareholder of Beijing Xin Ao Concrete Co. Ltd.
(the "Company"), hereby entrusts [ ] with full authority on [ ], if I am
unable
to perform my obligations under the Equity Transfer Agreement entered into
by
and among Ao Hang (or its designated person) and I on __________, [ ] in
the
event of my death, emigration, illness, incapacity or any other reason, to
act
on my behalf to perform the obligations under the above agreement and all
matters related to transfer of equity interest.
The
above
actions shall include but shall not be limited to the execution of all necessary
documents (including resolutions of shareholders' meetings) and completion
of
all necessary formalities (including filings with the government and alteration
of the registration of shareholders of the Company) required for my performance
of the obligations under the above Equity Transfer Agreement in accordance
with
laws of China.
Signed
by:
Name:
Xxxxxx Xxx
Date:
00
Xxxxxxxx
X
Form
of waiver of right of first refusal
Waiver
of Right of First Refusal
To:
Xxxxxx Xxx
Dear
Sirs,
I
refer
to the proposed transfer of your entire interest in the registered capital
of
Beijing Xin Ao Concrete Co., Ltd. to Ao Hang or its designated entity
("Transferee").
I
hereby
waive any pre-emptive right I may have under PRC laws or otherwise to acquire
the equity interest you propose to transfer to the Transferee and consent
to the
proposed transfer of the equity interest to the Transferee.
Yours
faithfully
________________
For
and
on behalf of
Weili
He
19
