OPTION AGREEMENT
This
Option Agreement (hereinafter “Agreement”) is made on the 26th day of
November, 2008, at Shijiazhuang, the People’s Republic of China (the “PRC”) by
and among the following parties:
Hebei
Xxxxxx Xxxx Trade Co., Ltd. ( “Party A”)
Registered
Address: 000 Xxxx Xxxxxxxxx Xxxx , Xxxxxxxxxxxx
Legal
representative: Zhang Zhongwen
Hebei
Shijie Kaiyuan Logistics Co., Ltd. (“Party B”)
Registered
Address: 000 Xxxx Xxxxxxxxx Xxxx, Xxxxxxxxxxxx
Legal
representative: Xxxx Xxxxx
WHEREAS:
1.
Party A,
a wholly foreign owned enterprise organized and existing under the laws of
PRC.
2. Party
B, a limited liability company registered and existing under the laws of PRC,
hold the equity interests of 【48】 Transportation
Companies 【in
the jurisdiction of china】. (“the
Transportation Companies”) （the amount of
capital and percentage of ownership hold by Pledgor in Transportation Companies
set forth in schedule hereto）.
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1.
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THE
OPTIONS GRANTED
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1.1
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GRANT
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Grantor
agrees to voluntarily, unconditionally, irrevocably and exclusively grant Party
A the option under the PRC laws and the terms and conditions provide in this
Agreement, the Party A or any third party designated by Party A is entitled to
purchase all or part of the share at the lower of the lowest price permitted by
the PRC laws at the time of exercise of Option and the audited net asset value
of Transportation Companies.
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1.2
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TERMS
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This
Agreement shall be valid from the date of execution until (i) the Accomplished
Date defined in Clause 2.5 as below or (ii) the obligations hereunder have been
performed, which is later. Party B shall not terminate this Agreement early in
any reason.
1
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2.
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EXERCISE
OF OPTION AND CLOSING
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2.1
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TIME
OF EXERCISE
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2.1.1
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The
Grantor agrees, Party A may exercise any or all option under this
Agreement at any time of the expiration unless otherwise specified by the
PRC laws.
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2.1.2
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The
Grantor agrees, Party A have no limitation in the number of exercise
unless have acquired all the equity interests of Transportation
Companies.
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2.1.3
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The
Grantor agrees, Party A may designate a third Party as its representative
to exercise any or all portion of the options subject to notify the
Grantor prior in writing.
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2.2
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THE
USE OF FUND
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Grantors
hereby agree to provide all the interests in connection with the exercise of
Option by Party A or any third party designated by Party A to Transportation
Companies in an appropriate manner.
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2.3
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ASSIGNMENT
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Grantors
agree that the Party A may assign or transfer all or any of the Option under
this Agreement to any third party. Any such third party shall be deemed as one
Party of this Agreement and have all of Party A’s rights and
obligations.
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2.4
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NOTICES
OF EXECISE THE OPTION
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In the
event that Party A wishes to exercise the Option, it shall send to the Grant a
written notice not later than 10 business days from the Notice Date for the
closing of such purchase (an “Option Closing Date” as defined below).
The Notice shall specify the terms as below:
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2.4.1
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The
date as of the consummation of the approval of the equity transfers (if
required by law) and applies for registration in the AIC formally.
(hereinafter “Option Closing
Date”)
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2.4.2
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The
name of the shareholder after the closing
date;
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2
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2.4.3
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The
amount of equity interest purchased from the
Grantor;
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2.4.4
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Payment
method;
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2.4.5
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Power
of Attorney (if authorized the third party to exercise the rights)
.
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Both
Parties agree that, Party A shall designate the third party and on the name of
the third party to exercise the options and register the equity interests.
Grantor agrees that he will sign the Share Transfer Agreements prepared by Party
A or the third party designated by Party A within 5 business days after the
acceptance of the Notice for Exercise provide Party A or the third party
designated by Party A on demand.
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2.5
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CLOSING
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2.5.1
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Grantor
shall urge Transportation Companies to accomplish the approval of
assignment by the authorized governmental institutions hereunder under the
applicable law of PRC (if
any).
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2.5.2
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Grantor
shall cause Transportation Companies to accomplish the register procedure
promptly in the AIC under the applicable laws of the
PRC.
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2.5.3
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Party
A or the third party designated by Party A shall pay the Grantors with the
price provided in the Clause 1.1 at the closing
day.
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2.5.4
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Grantors
shall render the Transportation Companies necessary and timely assistance
according to the applicable laws of the PRC to consummate the approval
procedures (if required by law) in authorized government entity and to
consummate the equity transfer procedure in the AIC. Such date is the date
of consummation of the Option. (hereinafter “Accomplished
Date”)
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2.6
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ACCOMPLISHED
DATE
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Party A
or the designated third party shall become the legal owner of the equity
interests after the consummated date pursuant to the Articles of Association and
applicable laws of the PRC.
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3.
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REPRESENTATIONS
AND WARRANTIES
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3.1
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Except
as disclosed, Grantor hereby represents and warrants as
below:
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3
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3.1.1
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Grantor
has full and complete right and authority to execute and perform this
Agreement;
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3.1.2
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Grantor
have performed the contributing obligation of shareholders in
Transportation Companies and owned the lawful and complete title of the
shares under the applicable law of the PRC and the Articles of Association
and bylaws of Transportation
Companies.
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3.1.3
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The
performance of this Agreement or obligation hereunder have no violation of
the binding laws, regulations and other agreements, and have no necessary
approval or authority required by the competent governmental
entity.
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3.1.4
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There
are no pending and threatened litigations, arbitrations or any other
judicial or administrative proceedings which will materially impact the
performance of this
Agreement.
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3.1.5
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No
pledge, indebtedness or any other encumbrances on the equity interest of
Transportation Companies, and no assignment, donate, pledge or any other
manner to dispose of the equity interest to any third
party;
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3.1.6
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These
equity interests of Transportation Companies hold by Grantor are free from
any pledge, indebtedness or any other encumbrances of the third
party.
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3.1.7
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The
Option granted to Party A or the persons designated by Party A must be
exclusive, Grantor shall not grant any other party the option or any
similar right in any manner;
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3.1.8
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Transportation
Companies are limited liability companies created and existing under the
applicable laws of the PRC, and have obtained all necessary approvals,
authorities and licenses for the operation of business now and in the
future. Transportation Companies does not have any known or expected
incident that may lead such approvals, authorities and licenses to be
cancelled, removed or
suspended
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3.1.9
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Grantor
shall strive to urge the adoption of resolutions which approve Grantor to
assign the equity interests to Party A or the third party designated by
Party A during the term of exercise of option under the terms and
conditions hereof by the shareholders’ meeting of Transportation
Companies. Grantor also shall strive to cause any shareholders of
Transportation Companies other than Grantor (if any) to agree the waiver
of the right of first refusal in connection with the equity interests all
or any which are attempted to
assign.
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4
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3.2
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CONVENANTS
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3.2.1
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During
the terms of this Agreement, Grantor covenants to Party A or the third
party designated by Party A, it will carry out all the necessary
procedures which made the Party A or the third party designated by Party A
the shareholder of Transportation Companies. The procedures included,
without limitation, rendering Party A or the third party designated by
Party A assistance to obtain necessary approvals from governmental
entities and institutions, delivering Share
Transfer Agreement to the related Administration for Industry and Commence
(“AIC”) for the purpose of the amendments or modifications of the Articles
of Association and bylaws, shareholders’ register or
any other things concerned.
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3.2.2
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During
the terms of this Agreement, he will not put the equity interests hold by
Grantor under the circumstance of pledge, indebtedness or encumbrance for
any third party, and he will not assign, donate, pledge or dispose of the
equity interests hold by Grantor in any other manner to the third
party.
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3.2.3
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During
the terms of this Agreement, the equity interests hold by Grantor will not
under the circumstance of pledge, indebtedness or encumbrance for the
third party.
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3.2.4
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During
the terms of this Agreement, the option granted by Grantor to Party A
shall be exclusive; Grantor shall not grant any other party the option or
any other right similar right.
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4.
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TAXES
AND FEES
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Subject
to applicable laws, the taxes and fees shall be paid by Parties respectively in
the course of carrying out this Agreement.
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5.
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BREACH
OF AGREEMENT
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5.1
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Any
breach of the representations and warrants under this Agreement by any
Party, given the written notices the other Party have the right to require
the breaching Party to correct its conducts of breach or non-performance,
and take good, promptly and effectively action to eliminate the
consequences in connection with the breach and non-performance aforesaid,
and cover the damages .
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5
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5.2
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The
breaching Party shall be liable for any cost, liability or loss (include
but not limited to the interests and attorney fees arising from the
breach) provide that the breach of this Agreement by any Party. The
aggregate amount of indemnification shall be equivalent to the loss
incurred by the default; said remedies include the profits for performance
which could reasonably have foreseen at the time of the conclusion of the
Agreement.
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5.3
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In
the event of breach by Party B, Party A or the third party designated by
Party A may terminate the performance of obligations hereunder temporarily
by deliver a written notice to Party B in consideration that the
performance is impossible or unfair until the Party B take the actions to
eliminate the consequence and indemnify the costs arising in connection
with the breach.
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5.4
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Parties
shall be liable respectively for the damages to the extent that incurred
by themselves provide the breach of this Agreement by both
Parties.
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6.
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GOVERNING
LAW AND SETTLEMENT OF
DISPUTES
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6.1
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GOVERNING
LAW
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The
application, include, without limitation, execution, effectiveness, performance,
construction of this Agreement shall be governed by the laws of the
PRC.
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6.2
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AMICABLE
NEGOTIATION
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In the
event any dispute with respect to or in connection with the construction and
performance of this Agreement, the Parties shall first negotiate in good faith
or mediate through a third party to resolve the dispute. In the event the
Parties fail to resolve the dispute through the methods above-mentioned within
30 days after the any Party’s request for resolution of the dispute, any Party
shall submit the relevant dispute to arbitration.
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6.3
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ARBITRATION
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The
dispute with respect to this Agreement shall submit to China International
Economic and Trade Arbitration Commission in Shijiazhuang for binding
arbitration. The languages used during arbitration shall be Chinese. The
arbitration shall be final and binding on Parties.
6
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7.
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CONFIDENTIALITY
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7.1
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CONFIDENTIAL
INFORMATION
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This
Agreement and schedules hereto is strictly confidential. No Party shall disclose
any information of this Agreement to any third party without the prior written
consent of both Parties. This term shall survive the termination of this
Agreement.
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7.2
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EXCEPTION
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The
disclosure in accordance with the laws, adjudications, arbitral awards and the
decisions of governmental entity shall not be deemed as the non-compliance of
the clause 7.1.
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8.
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MISCELLANEOUS
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8.1
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ENTIRE
AGREEMENT
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This
Agreement constitutes the entire the subject matter between the Parties hereto,
and supersedes all prior discussions, negotiations and agreements. This
Agreement shall be altered by mutual consent in writing between Parties, the
schedules and exhibits referred to herein are incorporated in this Agreement and
constitute an integral part of this Agreement.
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8.2
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AMENDMENTS
AND SUPPLEMENTARY
|
No
amendment, supplementary or modification of this Agreement shall occur except in
writing. The amend agreement and supplementary agreement that have been signed
and sealed by the Parties shall have the same validity as this
Agreement.
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8.3
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SEVERABILITY
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In the
event that any provision of this Agreement is determined to be invalid or
unenforceable in any respect in accordance with the applicable laws, the
validity or enforceability of the remaining provisions of this Agreement shall
not be affected or compromised in any respect.
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8.4
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WAIVER
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No delay
or omission by any Party in exercising the right, power or privilege hereunder
shall be deemed as a waiver of such right, power or privilege. The single or
partial exercise of any right, power or privilege shall not preclude any
exercise of any other right, power or privilege.
7
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8.5
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NOTICE
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8.5.1
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All
the notices sent by parties for the rights and obligations performance
given under this Agreement shall be sent in writing and delivered to the
address as specified below by the way of personally delivery, registered
mail, prepaid post, courier or facsimile
transmission.
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Party
A: Hebei Xxxxxx Xxxx Trade Co., Ltd.
Address: 000
Xxxx Xxxxxxxxx Xxxx , Xxxxxxxxxxxx
Facsimile:
0000-00000000
Telephone:
0000-00000000
Attention: Zhang
Zhongwen
Party
B: Hebei Shijie Kaiyuan Logistics Co., Ltd.
Address:
000 Xxxx Xxxxxxxxx Xxxx , Xxxxxxxxxxxx
Facsimile: 0000-00000000
Telephone: 0000-00000000
Attention:
Xxxx Xxxxx
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8.5.2
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Notices
shall be deemed to have been
received:
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8.5.2.1
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Upon
confirmed transmission if sent by fax, provide the fax sent later than
17:00 or sent not in business day, upon the next successive business
day;
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8.5.2.2
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Upon
signature date if delivered by hand (include
courier)
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8.5.2.3
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Upon
15 days after the date of confirmation of the return receipt if delivered
by registered mail.
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8.5.3
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BINDING
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This
Agreement is binding for both Parties.
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8.6
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LANGUAGE
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This
Agreement signed in quadruplicate originals, with each of equally binding
force.
8
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8.7
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DAY
AND BUSINESS DAY
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References
to “day” mean the calendar day, “business day” means the date from Monday to
Friday.
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8.8
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HEADINGS
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The
headings in this Agreement are for convenience only and shall not affect the
construction of the Agreement.
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8.9
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UNSPECIFIED
EVENT
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The event
which is not specified in this Agreement shall be negotiated by both Parties
under the law of the PRC.
9
[SIGNATURE
PAGE]
Party
A: Hebei Xxxxxx Xxxx Trade Co., Ltd.（seal）
Authorized
Representative（signature）:
Party
B: Hebei Shijie Kaiyuan Logistics Co., Ltd.（seal）
Authorized
Representative（signature）:
10
SCHEDULE
THE
AMOUNT OF CAPITAL AND PERCENTAGE OF OWNERSHIP HOLD BY
PLEDGOR
|
NO.
|
Transportation
Company
|
Capital (RMB 0000’)
|
Equity
Percentage
|
Note
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||||
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1
|
Yuanshi
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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2
|
Gaoyi
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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3
|
Xingtan
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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4
|
Pingshan
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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5
|
Zanhuang
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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6
|
Jingxing
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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7
|
Quyang
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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8
|
Zhengding
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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9
|
Gaocheng
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
10
|
Xinji
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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11
|
Jinzhou
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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12
|
Shexian
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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13
|
Fuping
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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14
|
Hejian
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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15
|
Weixian
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
16
|
Shenzhou
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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17
|
Rongcheng
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
18
|
Sanhe
Shijie Kaiyuan Transportation Service Co.,
Ltd.
|
50
|
100%
|
|||||
|
19
|
Huanghua
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
20
|
Shahe
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
21
|
Jizhou
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
22
|
Bazhou
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
23
|
Pingding
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
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24
|
Pingding
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
25
|
Guantao
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
26
|
Longyao
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
27
|
Hunyuan
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
28
|
Huailai
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
29
|
Gaobeidian
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
30
|
Wu’an
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
31
|
Shouyang
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
11
|
32
|
Yangquan
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
33
|
Yuxian
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
34
|
Qingxian
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
35
|
Anguo
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
36
|
Qingxu
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
37
|
Yangyuan
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
38
|
Yuxian
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
39
|
Datong
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|
40
|
Nanhe
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
41
|
Jinzhong
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
42
|
Tianjin
Beichen Xuyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
43
|
Fucheneg
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
44
|
Qixian
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
45
|
Zhangjiakou
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
46
|
QianAn
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
47
|
Tangshan
Fengrun Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
48
|
Zunhua
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
12
