RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
Exhibit 4.9
Execution Copy
THIS RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT (this “Agreement”) is made as of June 24,
2009, by and among EASTERN WELL HOLDINGS LIMITED, a company duly incorporated and validly existing
under the Laws of the Hong Kong (the “Company”), CHINA ENVIRONMENT FUND III, L.P., a limited
liability partnership duly organized and existing under the laws of the Cayman Island (the
“Investor”), Sun Kowk Ping, a citizen of the Hong Kong with the Hong Kong passport No. of XX0000000
(the “Founder”), SHANGHAI NOBO COMMERCE &TRADE CO.,LTD.(
), a wholly foreign owned enterprise duly
organized and validly existing under the Laws of the PRC (“Shanghai Nobo”), NUOXIN ENERGY
TECHNOLOGY (SHANG HAI) CO., LTD. (
), a wholly foreign owned enterprise duly organized and validly
existing under the Laws of the PRC (“Shanghai Nuoxin”) and JIANGXI NOBAO ELECTRIC CO., LTD. (
), a
wholly foreign owned enterprise duly organized and validly existing under the Laws of the PRC
(“Jiangxi Nobao”).
), a wholly foreign owned enterprise duly
organized and validly existing under the Laws of the PRC (“Shanghai Nobo”), NUOXIN ENERGY
TECHNOLOGY (SHANG HAI) CO., LTD. (), a wholly foreign owned enterprise duly organized and validly
existing under the Laws of the PRC (“Shanghai Nuoxin”) and JIANGXI NOBAO ELECTRIC CO., LTD. (), a
wholly foreign owned enterprise duly organized and validly existing under the Laws of the PRC
(“Jiangxi Nobao”).
Each of the Company, the Investor, the Founder, Shanghai Nobo, Shanghai Nuoxin and Jiangxi
Nobao shall be referred to individually as a “Party” and collectively as the “Parties”. Shanghai
Nobo, Shanghai Nuoxin and Jiangxi Nobao shall be collectively referred to as the “PRC Companies”.
RECITALS
| A. | The Parties, together with certain other related parties, have entered into that certain Series A Preferred Share Purchase Agreement dated June 18, 2009 (the “Share Purchase Agreement”). | |
| B. | It is a condition precedent of Closing under the Share Purchase Agreement that the Parties enter into this Agreement. |
WITNESSETH
NOW, THEREFORE, in consideration of the premises set forth above, the mutual promises and
covenants set forth herein and other good and valuable consideration, the Parties agree as follows:
| 1. | Definitions. |
Capitalized terms used herein shall have the meanings ascribed to them in Schedule 1 hereto.
Capitalized terms used herein without definitions shall have the meanings set forth in
the Share Purchase Agreement (as defined herein).
| 2. | Rights of First Refusal and Co-Sale Rights |
| 2.1 | Prohibition on Transfer of Shares. | ||
| (a) | Holders of Ordinary Shares. |
Except as provided in Sections 2.2 through 2.5 of this Agreement, any holder (whether directly
or indirectly) of Ordinary Shares of the Company other than the Investor or holders of Ordinary
Shares converted from Series A Preferred Shares (each a “Restricted
Right of First Refusal and
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Co-Sale Agreement
Shareholder”), regardless of any such holder’s employment status with the Company, may not
transfer any direct or indirect interest in any Equity Securities of the Company now or hereafter
owned or held by him prior to a Qualified IPO, unless otherwise approved in writing by the
majority of the Board, including the approval of the director appointed by the Investor. For the
purposes hereof, redemption or repurchase of shares by the Company shall not be prohibited under
this clause.
| (b) | Prohibited Transfers Void. |
Any transfer of Equity Securities by a Restricted Shareholder not made in compliance with
this Agreement shall be null and void as against the Company and the Holders, shall not be
recorded on the books of the Company and shall not be recognized by the Company.
| 2.2 | Rights of First Refusal. | ||
| (a) | Transfer Notice. |
Prior to the closing of a Qualified IPO, if a Restricted Shareholder proposes to transfer the
Equity Securities he or it directly or indirectly holds in the Company to one or more third
parties pursuant to an understanding with such third parties (a “Transfer”, and such holder a
“Transferor”), then the Transferor shall, subject to the applicable statutory provisions and the
Memorandum and Articles, give the Company written notice of the Transferor’s intention to make the
Transfer (the “Transfer Notice”), which shall include (i) a description of the Equity Securities
to be transferred (the “Offered Shares”), (ii) subject to any applicable non-disclosure agreement
with such third party, the identity of the prospective transferee and (iii) the consideration and
the material terms and conditions upon which the proposed Transfer is to be made. The Transfer
Notice shall certify that the Transferor has received a firm offer from the prospective transferee
and in good faith believes a binding agreement for the Transfer is obtainable on the terms set
forth in the Transfer Notice.
| (b) | Company’s Option. |
(i) The Company shall have an option for a period of fifteen (15) days following the receipt of the Transfer Notice to elect to purchase all of the Offered Shares (not
in part) at the same price and subject to the same material terms and conditions as described in
the Transfer Notice, subject further to complying with all the applicable statutory provisions
(including, without limitation, the Companies Ordinance (Cap. 32 of the Laws of Hong Kong)) and
the Memorandum and Articles.
(ii) The Company may exercise such purchase option and, thereby, purchase all of the Offered Shares,
by notifying Transferor in writing, before expiration of the fifteen (15) day period, that it wishes to purchase all of the Offered Shares.
(iii) If the Company gives the Transferor notice that it desires to purchase Offered Shares,
then payment for the Offered Shares to be purchased shall be by check or wire transfer in
immediately available funds of the appropriate currency, against delivery of such Offered Shares
to be purchased at a place agreed by the Transferor and the Company and at the time of the
scheduled closing therefor, which shall be no later than forty-five (45) days after the Company’s
receipt of the Transfer Notice, unless such notice contemplated a later closing with the
prospective third party transferee or unless the value of the purchase price has not yet been
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2
established pursuant to Section 2.2(d) or if later, the day on which all the mandatory statutory
procedures shall have been completed.
(iv) Regardless of any other provision of this Agreement, if the Company declines in writing,
or fails to exercise its purchase option pursuant to this Section 2.2 with respect to all (and not
less than all) Offered Shares, then the Transferor shall be under no obligation to transfer the
Offered Shares to the Company pursuant to this Section 2.2 and shall then be required to provide a
Transfer Notice regarding the Offered Shares to the Holders (the “Holder Transfer Notice”) pursuant
to Section 2.2(c).
(v) The Transferor shall have the right to terminate or withdraw any
Transfer Notice and any intent to transfer Offered Shares at any time, whether or not the Company
has elected to purchase under this Section 2.2 any Offered Shares offered thereby.
| (c) | Holder’s Option. |
(i) If the Company at any time elects not to purchase all of the Offered Shares pursuant to its right of first refusal in Section 2.2(b) hereof, then each Holder shall have
an option for a period of fifteen (15) days following the Holder’s receipt of the Holder Transfer
Notice to elect to purchase its respective pro rata share of the Offered Shares at the same price
and subject to the same material terms and conditions as described in the Holder Transfer Notice.
(ii) Each Holder may exercise such purchase option and, thereby, purchase all or any portion of its pro rata share (with any re-allotment as provided below) of the Offered
Shares, by notifying Transferor and the Company in writing, before expiration of the fifteen (15)
day period as to the number of such shares that it wishes to purchase (including any re-allotment).
(iii) Each Holder’s pro rata share of the Offered Shares shall be a fraction, the numerator of which shall be the number of Equity Securities (assuming the exercise, conversion
and exchange of any Ordinary Share Equivalents) owned by such Holder on the date of the Holder
Transfer Notice and the denominator of which shall be the total number of Equity Securities
(assuming the exercise, conversion and exchange of any Ordinary Share Equivalents) held by all
Holders on such date, multiplied by the Offered Shares.
(iv) If any Holder fails to exercise such purchase option pursuant to this Section 2.2, the Transferor shall give notice of such failure (the “Re-allotment Notice”) to each
other Holder that elected to purchase its entire pro rata share of the Offered Shares (the
“Purchasing Holders”). Such Re-allotment Notice may be made by telephone if confirmed in writing
within two (2) days. The Purchasing Holders shall have a right of re-allotment such that they shall
have ten (10) days from the date such Re-allotment Notice was given to elect to increase the number
of Offered Shares they agreed to purchase under Section 2.2(c)(iiii) to include their respective
pro rata share of the Offered Shares contained in any Re-allotment Notice.
(v) Subject to applicable securities Laws, the Holder shall be entitled to apportion Offered Shares to be purchased among its partners and Affiliates upon written notice to
the Company and the Transferor.
(vi) If a Holder gives the Transferor notice that it desires to purchase Offered
Right of First Refusal and
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3
Shares, then payment for the Offered Shares to be purchased shall be by check or wire transfer in
immediately available funds of the appropriate currency, against delivery of such Offered Shares to
be purchased at a place agreed by the Transferor and all the participating Holders and at the time
of the scheduled closing therefor, which shall be no later than forty-five (45) days after the
Holder’s receipt of the Holder Transfer Notice, unless such notice contemplated a later closing
with the prospective third party transferee or unless the value of the purchase price has not yet
been established pursuant to Section 2.2(d).
(vii) Regardless of any other provision of this Agreement, if the Holders decline in writing,
or fail to exercise their purchase option pursuant to this Section 2.2(c) with respect to all (and
not less than all) Offered Shares, the Transferor shall be under no obligation to transfer the
Offered Shares to the Holders or the Company pursuant to this Section 2.2 and instead shall be free
to sell such Offered Shares pursuant to the Holder Transfer Notice, subject to Sections 2.3 and 2.4
hereunder.
(viii) The Transferor shall have the right to terminate or withdraw any Holder Transfer Notice
and any intent to transfer Offered Shares at any time, whether or not any Holder has elected to
purchase under this Section 2.2(c) any Offered Shares offered thereby.
(ix) If the Company or any Holder exercises its right of first refusal to purchase the Offered Shares, then, upon the date of the completion of the relevant share transfers,
the Transferor will have no further rights as a holder of such Offered Shares except the right to
receive payment for such Offered Shares from the Company or such Holder in accordance with the
terms of this Agreement, and the Transferor will forthwith cause all certificate(s) evidencing such
Offered Shares to be surrendered to the Company for cancellation or transfer to such Holder.
(x) In the event that the Company or Holders have not elected to purchase all of the Offered Shares, then the sale of the remaining Offered Shares will become subject to the
co-sale right of the Holders as set forth in Section 2.3 below.
| (d) | Valuation of Property. |
(i) Should the purchase price specified in the Transfer Notice or Holder Transfer Notice be payable in property other than cash or evidences of indebtedness, the Holders or
the Company, as the case may be, shall have the right to pay the purchase price in the form of cash
equal in amount to the fair market value of such property.
(ii) If the Transferor, on the one hand, and the Holders or the Company, as the case may be, on the other hand, cannot agree on such cash value within seven (7) days after the
Holders’ receipt of the Holder Transfer Notice or the Company’s receipt of the Transfer Notice, the
valuation shall be made by an appraiser of internationally recognized standing jointly selected by
the Transferor and the Holders or the Company, as the case may be, or, if they cannot agree on an
appraiser within ten (10) days after the Holders’ receipt of the Holder Transfer Notice or the
Company’s receipt of the Transfer Notice, each shall select an appraiser of internationally
recognized standing and the two appraisers shall designate a third appraiser of internationally
recognized standing, whose appraisal shall be determinative of such value.
(iii) The cost of such appraisal shall be shared equally by the Transferor and the Holders or
the Company, as the case may be, with the half of the cost borne by the Holders to be borne pro
rata by each Holder based on the number of shares such Holder has elected to
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4
purchase pursuant to this Section 2.
(iv) If the value of the purchase price offered by the prospective transferee is not determined within the time limit specified in Section 2.2(b)(iii) or Section 2.2(c)(vi) above,
the closing of the Holders’ or the Company’s purchase shall be held on or prior to the fifth
business day after such valuation shall have been made pursuant to this Section 2.2(d).
| 2.3 | Right of Co-Sale. |
(a) To the extent the Holders do not exercise their respective right of first refusal as
to all of the Offered Shares pursuant to Section 2.2, each Holder that did not exercise its right
of first refusal as to any of the Offered Shares pursuant to Section 2.2 shall have the right to
participate in such sale of Equity Securities on the same terms and conditions as specified in the
Transfer Notice by notifying the Transferor in writing within fifteen (15) days after receipt of
the Holder Transfer Notice referred to in Section 2.2(b) (such Holder, a “Selling Holder”).
(i) Such Selling Holder’s notice to the Transferor shall indicate the number
of Equity Securities the Selling Holder wishes to sell under its right to participate.
(ii) To the extent one or more of the Holders exercise such right of
participation in accordance with the terms and conditions set forth below, the number of Equity
Securities that the Transferor may sell in the Transfer shall be correspondingly reduced.
(b) Each Selling Holder may elect to sell such number of Equity Securities that in
aggregate equals to the total number of Offered Shares being transferred following the exercise or
expiration of all rights of first refusal pursuant to Section 2.2 hereof on pro rata basis. Each
Selling Holder may elect to sell such number of Equity Securities that equals to the product of (i)
the aggregate number of the Offered Shares being transferred following the exercise or expiration
of all rights of first refusal pursuant to Section 2.2 hereof multiplied by (ii) a fraction, the
numerator of which is the number of Ordinary Shares (on as-if-converted basis which include the
number of Ordinary Shares that would be issuable upon the exercise, conversion or exchange of
Ordinary Share Equivalents) owned by the Selling Holder on the date of the Transfer Notice and the
denominator of which is the total number of Ordinary Shares (on as-if-converted basis which include
the number of Ordinary Shares that would be issuable upon the exercise, conversion or exchange of
Ordinary Share Equivalents) owned by all Selling Holders on the date of the Transfer Notice.
(c) If any Selling Holder fails to exercise such co-sale option pursuant to this Section 2.3, the Transferor shall give notice of such failure (the “Co-Sale Re-allotment Notice”)
to each other Selling Holders that elected to sell its entire pro rata share of the Offered Shares
(the “Co-Sale Selling Holders”). Such Co-Sale Re-allotment Notice may be made by telephone if
confirmed in writing within two (2) days. The Co-Sale Selling Holders shall have a right of
re-allotment such that they shall have ten (10) days from the date such Co-Sale Re-allotment Notice
was given to elect to increase the number of Equity Securities they agreed to sell under Section
2.3(b) to include their respective pro rata share of the Equity Securities to be sold contained in
any Co-Sale Re-allotment Notice.
(d) Each Selling Holder shall effect its participation in the sale by promptly delivering to the Transferor for transfer to the prospective purchaser one or more certificates,
properly endorsed for transfer, which represent the type and number of Equity Securities which such
Selling Holder elects to sell; provided, however that if the prospective third-party
Right of First Refusal and
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purchaser objects to the delivery of any Ordinary Share Equivalents in lieu of Ordinary Shares,
such Selling Holder shall only deliver Ordinary Shares (and therefore shall convert any such
Ordinary Share Equivalents into Ordinary Shares) and certificates corresponding to such Ordinary
Shares. The Company agrees to make any such conversion concurrent with the actual transfer of such
shares to the purchaser and contingent on such transfer.
(e) The share certificate or certificates that a Selling Holder delivers to the
Transferor pursuant to Section 2.3(d) shall be transferred to the prospective purchaser in
consummation of the sale of the Equity Securities pursuant to the terms and conditions specified in
the Transfer Notice, and the Transferor shall concurrently therewith remit to such Selling Holder
that portion of the sale proceeds to which such Selling Holder is entitled by reason of its
participation in such sale.
(f) To the extent that any prospective purchaser prohibits the participation of a
Selling Holder exercising its co-sale rights hereunder in a proposed Transfer or otherwise refuses
to purchase shares or other securities from a Selling Holder exercising its co-sale rights
hereunder, the Transferor shall not sell to such prospective purchaser any Equity Securities unless
and until, simultaneously with such sale, the Transferor shall purchase from such Selling Holder
such shares or other securities that such Selling Holder would otherwise be entitled to sell to the
prospective purchaser pursuant to its co-sale rights for the same consideration and on the same
terms and conditions as the proposed transfer described in the Transfer Notice.
| 2.4 | Non-Exercise of Rights. |
(a) Subject to any other applicable restrictions on the sale of such shares, to the
extent that the Holders have not exercised their rights to purchase the Offered Shares within the
time periods specified in Section 2.2 and the Holders have not exercised their rights to
participate in the sale of the Offered Shares within the time periods specified in Section 2.3, the
Transferor shall have a period of sixty (60) days from the expiration of such rights in which to
sell the Offered Shares, as the case may be, to the third-party transferee identified in the
Transfer Notice upon terms and conditions (including the purchase price) no more favorable to the
purchaser than those specified in the Transfer Notice.
(b) In the event the Transferor does not consummate the sale or disposition of the
Offered Shares within sixty (60) days from the expiration of such rights, the Holders’ first
refusal rights and co-sale rights shall continue to be applicable to any subsequent disposition of
the Offered Shares by the Transferor until such rights lapse in accordance with the terms of this
Agreement.
(c) The exercise or non-exercise of the rights of the Holders under this Section 2 to
purchase Equity Securities from a Transferor or participate in the sale of Equity Securities by a
Transferor shall not adversely affect their rights to make subsequent purchases from the Transferor
of Equity Securities or subsequently participate in sales of Equity Securities by the Transferor
hereunder.
| 2.5 | Limitations to Rights of First Refusal and Co-Sale. |
(a) Notwithstanding the provisions of this Section 2, the Founder may sell or otherwise assign, up to five percent (5%) of Equity Securities now or hereafter held by him, to any
Person, and such sale or assignment shall be subject to only the Investor’s right of first refusal
under Section 2.2 and the Investor’s co-sale right under Section 2.3 under the same
Right of First Refusal and
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terms and conditions, provided that (i) only one transfer is permitted and any additional
transfer shall require the prior consent of the Investor, and (ii) each such transferee, prior to
the completion of the sale, transfer, or assignment, shall have executed documents, in form and
substance reasonably satisfactory to the Holders, assuming the obligations of the Restricted
Shareholders under this Agreement, including but not limited to Section 2.1 hereof, with respect
to the transferred securities.
(b) In addition to the provisions of this Section 2.5(a), any Restricted Shareholder
may sell or otherwise assign, with or without consideration, up to five percent (5%) of Equity
Securities now or hereafter held by such holder, to an entity wholly-owned by such holder, or to a
spouse or child of such holder, or to a trust, custodian, trustee, or other fiduciary for the
account of any of the foregoing, or to a trust for such holder’s account (collectively, the
“Permitted Transferees” and each, a “Permitted Transferee”) and such sale or assignment shall not
be subject to Sections 2.1, 2.2 or 2.3, provided that (i) only one transfer to Permitted
Transferees is permitted and any additional transfer by any holder of Equity Securities to a
Permitted Transferee shall require the prior consent of the Investor, which shall be determined at
the Investor’s sole discretion and such consent shall not be unreasonably withheld or delayed,
(ii) each such Permitted Transferee, prior to the completion of the sale, transfer, or assignment,
shall have executed documents, in form and substance reasonably satisfactory to the Holders,
assuming the obligations of the Restricted Shareholders under this Agreement, including but not
limited to Section 2.1 hereof, with respect to the transferred securities and (iii) each Permitted
Transferee shall have executed and delivered to the transferring Restricted Shareholder (with a
copy to the Company) an irrevocable, unconditional and permanent power of attorney, all in form
and manner reasonably satisfactory to the Holders, effective immediately after the closing of such
sale or assignment, appointing the transferring Restricted Shareholder (or such holder existing
attorney-in-fact) as such Permitted Transferee’s attorney-in-fact and authorizing him to vote, in
his absolute discretion as the attorney-in-fact of the Permitted Transferee, any and all Equity
Securities of the Company owned by such Permitted Transferee with respect to any Company related
matters.
2.6 Change in Control. The Parties agree that, for purposes of the transfer restrictions in
this Agreement and in other Transaction Documents, a transaction or series of transactions that
result in a change in Control of a Shareholder shall be deemed to constitute a Transfer of such
Restricted Shareholders’ Equity Securities.
2.7 Termination. The rights of Investor in this Section 2 will terminate on the completion of
a Qualified IPO or upon the merger of the Company into another entity.
| 3. | Assignments and Transfers; No Third Party Beneficiaries. |
3.1 Except as otherwise provided herein, this Agreement and the rights and
obligations of the Parties hereunder shall inure to the benefit of, and be binding upon, their
respective successors, assigns and legal representatives, but shall not otherwise be for the
benefit of any third party. Except as otherwise provided herein, the rights of any Holder
hereunder are only assignable in connection with the transfer (subject to applicable securities
and other Laws) of Equity Securities held by such Holder but only to the extent of such transfer;
provided, however, that (i) the transferor shall, prior to the effectiveness of such
transfer, furnish to the Company written notice of the name and address of such transferee and the
Equity Securities that are being assigned to such transferee, and (ii) such transferee shall,
concurrently with the effectiveness of such transfer, become a party to this Agreement as a Holder
and be subject to all applicable restrictions set forth in this Agreement. This Agreement
Right of First Refusal and
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and the rights and obligations of any Party hereunder shall not otherwise be assigned without the
mutual written consent of the other Parties.
3.2 The sale or transfer of any Equity Securities by the Holders shall not be subject
to any right of first refusal, co-sale rights or any other contractual conditions or restrictions
on transfer except as may be required by Law.
| 4. | Drag-Along Rights. |
4.1 If, at any time after the second anniversary of the Closing, there is (a) an offer
by a bona fide third party not affiliated with any Party to purchase all the Shares in the Company;
or (b) a merger or consolidation of the Company with or into another corporation in which the
Company is not the surviving entity; or (c) a sale or transfer of all or substantially all the
Company’s properties and assets to any bona fide third person not affiliated with any Party (each a
“Trade Sale”), then the Holders of at least sixty-seven percent (67%) of the outstanding Series A
Preferred Shares shall have the right to cause other shareholders of the Company to sell all of the
then outstanding Ordinary Shares, Series A Preferred Shares and all options, warrants or other
rights to acquire any such shares then held by them on the same terms and conditions when the price
offered by such third party is not lower than one point five (1.5) times the equity valuation of
the Company implied by the Series A Purchase Price immediately after the Closing, subject to change
in accordance with the Ancillary Agreements (the “Drag Along Election”), provided, however,
that the Founder shall have a pre-emptive right to buy all of the Equity Securities of the Company
held by the Investor under the same terms and conditions. The Drag Along Election shall include the
right on the part of the Investor to cause the holders of Ordinary Shares to approve a sale of
assets, merger, consolidation, corporations or exchange or reorganization of the Company with or
into any other corporations, corporation or other entity (excluding any merger effected exclusively
for the purpose of changing the domicile of the Company), or any other transaction or series of
related transactions, in which the shareholders of the Company immediately prior to such
reorganization, merger or consolidation own less than fifty percent (50%) of the voting power of
the surviving entity, or a sale, conveyance or other disposition of all or substantially all of the
assets of the Company to a third party (each a “Sale Transaction”), provided, however, that
in no event shall a holder of Ordinary Shares be obligated to undertake the foregoing if the
distribution of consideration received by the shareholders upon consummation of the Sale
Transaction is not in accordance with the liquidating distribution requirements set forth in the
Company’s then-current Memorandum of Association. The Investor may exercise the Drag-Along Election
by providing written notice of such election (the “Drag-Along Notice”) to all shareholders of the
Company, including the name and address of the third party acquirer, the aggregate purchase price
to be paid by such third party purchaser, the proposed date for the closing of such Trade Sale, and
the other material terms and conditions of such Trade Sale. Within fifteen (15) days upon receipt
of the Drag-Along Notice, if the Founder doesn’t exercise the right to purchase all of the Equity
Securities of the Company held by the Investor under the same terms and conditions, then each
shareholder of the Company shall execute and deliver such instruments of conveyance and transfer
and take such other action, including executing any purchase agreements, merger agreements,
indemnity agreements, escrow agreements or related documents as the Investor or the acquirer in
such Trade Sale may reasonably require in order to carry out the terms and provisions of this
Section 4.
4.2 Should the consideration to be paid in connection with the Trade Sale be
payable in property other than cash, the Investor and other shareholders of the Company agree and
acknowledge that the value of the consideration will be determined in accordance with the
Right of First Refusal and
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following arrangement: (i) if the consideration to be paid in connection with the Trade Sale is for
publicly-traded securities, the value of the consideration to be paid shall be equal to the average
closing price based on a period of thirty (30) days prior the closing; or (ii) if the consideration
for the Trade Sale is not for publicly-traded securities, and the holders of Ordinary Shares and
Series A Preferred Shares cannot agree on such value with seven (7) days after receipt of
Drag-Along Notice by holders of Ordinary Shares, the valuation shall be made by an appraiser of
internationally recognized standing jointly selected by the holders of Ordinary Shares and the
Investor, whose appraisal shall be determinative of such value.
| 4.3 | The rights of Investor in this Section 4 will terminate on the completion of a Qualified IPO. | |
| 5. | Legend. |
Each existing or replacement certificate for shares now owned or hereafter acquired by any
Restricted Shareholder shall bear the following legend:
| “THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT BY AND BETWEEN THE MEMBER, THE COMPANY AND CERTAIN HOLDERS OF SHARES OF THE COMPANY. COPIES OF SUCH AGREEMENTS MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.” |
| 6. | Further Instruments and Actions. |
The Parties agree to execute such further instruments and to take such further action as may
reasonably be necessary to carry out the intent of this Agreement. Each Party agrees to cooperate
affirmatively with the other Parties, to the extent reasonably requested by another Party, to
enforce rights and obligations pursuant hereto.
| 7. | Miscellaneous |
| 7.1 | Governing Law. |
This Agreement shall be governed by and construed in accordance with the laws of Hong Kong as
to matters within the scope thereof and without regard to its principles of conflicts of laws.
| 7.2 | Notices. |
Any notice required or permitted pursuant to this Agreement shall be given in writing and
shall be given either personally or by next-day or second-day courier service, fax, electronic mail
or similar means to the address as shown below the signature of such Party on the signature page of
this Agreement (or at such other address as such Party may designate by fifteen (15) days’ advance
written notice to the other Parties to this Agreement given in accordance with this Section). Where
a notice is sent by next-day or second-day courier service, service of the notice shall be deemed
to be effected by properly addressing, pre-paying and sending by next-day or second-day service
through an internationally-recognized courier a letter containing the notice, with a confirmation
of delivery, and by two (2) days having passed
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after the letter containing the same is sent as aforesaid. Where a notice is sent by fax or
electronic mail, service of the notice shall be deemed to be effected on the same day on which it
is properly addressed and sent through a transmitting organization with a reasonable confirmation
of delivery.
| 7.3 | Entire Agreement. |
This Agreement, the Share Purchase Agreement and the exhibits hereto and thereto contain the
entire understanding of the Parties with respect to the subject matter hereof, and supersede all
other agreements between or among any of the Parties with respect to the subject matter hereof.
| 7.4 | Amendments and Waivers. |
Any term of this Agreement may be amended and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either retroactively or prospectively),
only with the written consent of each of (i) the Company, (ii) the Founder, and (iii) the Investor.
Any amendment or waiver effected in accordance with this paragraph shall be binding upon the
Parties and their respective successors and assigns.
| 7.5 | Severability. |
If one or more provisions of this Agreement are held to be unenforceable under applicable law,
such provision shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in accordance with its
terms.
| 7.6 | Attorney’s Fees. |
In the event that any dispute among the Parties arising from or in relation to this Agreement
should result in litigation, the prevailing Party in such dispute shall be entitled to recover from
the losing Party all fees, costs and expenses of enforcing any right of such prevailing Party under
or with respect to this Agreement, including, without limitation, such reasonable fees and expenses
of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses
of appeals.
| 7.7 | Titles and Subtitles. |
The titles and subtitles used in this Agreement are used for convenience only and are not to
be considered in construing or interpreting this Agreement.
| 7.8 | Counterparts. |
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument. Facsimile and
e-mailed copies of signatures shall be deemed to be originals for purposes of the effectiveness of
this Agreement.
| 7.9 | Dispute Resolution. |
(a) Any dispute, controversy or claim arising out of or relating to this Agreement,
or the interpretation, breach, termination or validity hereof, shall first be subject to resolution
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through consultation of the parties to such dispute, controversy or claim. Such consultation shall
begin within seven (7) days after one Party hereto has delivered to the other Parties involved a
written request for such consultation. If within thirty (30) days following the commencement of
such consultation the dispute cannot be resolved, the dispute shall be submitted to arbitration
upon the request of any Party with notice to the other Parties.
(b) The arbitration shall be conducted in Hong Kong under the auspices of the Hong Kong International Arbitration Centre (the “HKIAC”). There shall be three arbitrators. The
complainant and the respondent to such dispute shall each select one arbitrator within thirty (30)
days after giving or receiving the demand for arbitration. Such arbitrators shall be freely
selected, and the Parties shall not be limited in their selection to any prescribed list. The
Chairman of the HKIAC shall select the third arbitrator, who shall be qualified to practice law in
Hong Kong and fluent in English and Mandarin. If either party to the arbitration does not appoint
an arbitrator who has consented to participate within thirty (30) days after selection of the first
arbitrator, the relevant appointment shall be made by the Chairman of the HKIAC.
(c) The arbitration proceedings shall be conducted in English. The arbitration tribunal shall apply the Arbitration Rules of the HKIAC in effect at the time of the arbitration.
However, if such rules are in conflict with the provisions of this Section 7.9, including the
provisions concerning the appointment of arbitrators, the provisions of this Section 7.9 shall
prevail.
(d) The arbitrators shall decide any dispute submitted by the parties to the arbitration strictly in accordance with the substantive laws of New York and shall not apply any
other substantive law.
(e) Each Party hereto shall cooperate with any party to the dispute in making full disclosure of and providing complete access to all information and documents requested by such
party in connection with such arbitration proceedings, subject only to any confidentiality
obligations binding on the Party receiving the request; all such requested information and
documents can be provided in English or Chinese with equal legal validity.
(f) The award of the arbitration tribunal shall be final and binding upon the disputing parties, and any party to the dispute may apply to a court of competent jurisdiction for
enforcement of such award.
(g) Any party to the dispute shall be entitled to seek preliminary injunctive relief, if possible, from any court of competent jurisdiction pending the constitution of the arbitral
tribunal.
| 7.10 | Rights Cumulative. |
Each and all of the various rights, powers and remedies of a Party hereto will be considered
to be cumulative with and in addition to any other rights, powers and remedies which such Party may
have at law or in equity in the event of the breach of any of the terms of this Agreement. The
exercise or partial exercise of any right, power or remedy will neither constitute the exclusive
election thereof nor the waiver of any other right, power or remedy available to such Party.
| 7.11 | No Waiver. |
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Failure to insist upon strict compliance with any of the terms, covenants, or conditions
hereof will not be deemed a waiver of such term, covenant, or condition, nor will any waiver or
relinquishment of, or failure to insist upon strict compliance with, any right, power or remedy
power hereunder at any one or more times be deemed a waiver or relinquishment of such right, power
or remedy at any other time or times.
| 7.12 | No Presumption. |
The Parties acknowledge that any applicable law that would require interpretation of any
claimed ambiguities in this Agreement against the Party that drafted it has no application and is
expressly waived. If any claim is made by a Party relating to any conflict, omission or ambiguity
in the provisions of this Agreement, no presumption or burden of proof or persuasion will be
implied because this Agreement was prepared by or at the request of any Party or its counsel.
| 7.13 | Confidentiality. |
The terms and conditions of this Agreement, all exhibits and schedules attached hereto and
thereto, and the transactions contemplated hereby and thereby, including their existence, shall be
considered confidential information and shall not be disclosed by any Party hereto to any third
party except as permitted in accordance with the Share Purchase Agreement.
[Remainder of page intentionally left blank; signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above
| COMPANY: | EASTERN WELL HOLDINGS LIMITED |
|||
| By: |  |
 |
||
| Name: Sun Xxxx Xxxx | ||||
| Title: Director | ||||
| Address: Xx 000-000, Xx Xxxx Xxxx,
Xxxxxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxx |
||||
| Fax: 00-00-0000-0000 | ||||
[Signature Page to Right of First Refusal and Co-Sale Agreements]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above
| INVESTOR: | CHINA ENVIRONMENT FUND III,
L.P. |
|||
 |
||||
| Name: | ||||
| Title: Authorized Signatory | ||||
| Address: A2302, XX Xxxxx, Xxxxxxxx Xxxxxxx Xxxx, Xxxxxxx 000000 Xxxxx | ||||
| Fax: 00-00-0000-0000 | ||||
[Signature Page to Right of First Refusal and Co-Sale Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above
| FOUNDER: | SUN XXXX XXXX |
|||
| By: |  |
|||
| Passport Number: XX0000000 | ||||
| Address: Xx 000-000, Xx Xxxx Xxxx,
Xxxxxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxx |
||||
| Fax: 00-00-0000-0000 | ||||
[Signature Page to Right of First Refusal and Co-Sale Agreements]
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first
written above
| PRC COMPANIES : | SHANGHAI NOBO COMMERCE & TRADE
CO., LTD. ( ) |
 |
||
| By: |  |
|||
| Name: Sun Xxxx Xxxx | ||||
| Title: Legal Representative | ||||
| Address: Xx 000-000, Xx Xxxx Xxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxx | ||||
| Fax: 00-00-0000-0000 | ||||
| NOXIN ENERGY TECHNOLOGY (SHANGHAI) CO., LTD ( ) |
 |
|||
| By: |  |
|||
| Name: Sun Xxxx Xxxx | ||||
| Title: Legal Representative | ||||
| Address: Xx 000-000, Xx Xxxx Xxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxx | ||||
| Fax: 00-00-0000-0000 | ||||
| JIANGXI NOBAO ELECTRIC CO., LTD ( ) |
||||
| By: |  |
|||
| Name: Sun Xxxx Xxxx | ||||
| Title: Legal Representative | ||||
| Address: Xx 000-000, Xx Xxxx Xxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxx | ||||
| Fax: 00-00-0000-0000 | ||||
[Signature Page to Right of First Refusal and Co-Sale Agreement]
SCHEDULE 1
“Affiliates” means, with respect to a Person, any other Person that, directly or indirectly,
Controls, is Controlled by or is under common Control with such Person.
“Agreement” has the meaning set forth in the Preamble hereof.
“Ordinary Shares” means the Company’s ordinary shares, par value US$0.001 per share.
“Ordinary Share Equivalents” means warrants, options and rights exercisable for Ordinary
Shares or securities convertible into or exchangeable for Ordinary Shares, including, without
limitation, the Series A Preferred Shares and the Warrant Shares.
“Company” has the meaning set forth in the Preamble hereof.
“Control” of a given Person means the power or authority, whether exercised or not, to direct
the business, management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise, which power or authority shall
conclusively be presumed to exist upon possession of beneficial ownership or power to direct the
vote of more than fifty percent (50%) of the votes entitled to be cast at meetings of the members
or shareholders of such Person or power to control the composition of a majority of the board of
directors of such Person; the terms “Controlling” and “Controlled” have meanings correlative to the
foregoing.
“Co-Sale Re-allotment Notice” has the meaning set forth in Section 2.3(c) hereof.
“Co-Sale Selling Holders” has the meaning set forth in Section 2.3(c) hereof.
“Drag-Along Election” has the meaning set forth in Section 4.1 hereof.
“Drag-Along Notice” has the meaning set forth in Section 4.1 hereof.
“Equity Securities” means any Ordinary Shares and/or Ordinary Share Equivalents of the
Company.
“Founder” shall mean Sun Xxxx Xxxx, a citizen of Hong Kong.
“HKIAC”
has the meaning set forth in Section 7.9(a) hereof.
“Holder” means the Investor, together with the permitted transferees and assigns of the
Investor who become parties to this Agreement.
“Holder Transfer Notice” has the meaning section forth in Section 2.2(b) hereof.
“Offered Shares” has the meaning set forth in Section 2.2(a) hereof.
“Party” has the meaning set forth in the Preamble hereof.
“Permitted Transferee” has the meaning set forth in Section 2.5(b) hereof.
“Person” means any individual, corporation, partnership, limited partnership, proprietorship,
association, limited liability company, firm, trust, estate or other enterprise or
entity.
“Purchasing Holders” has the meaning set forth in Section 2.2(c) hereof.
“Qualified IPO” has the meaning given to such term in the Memorandum and Articles, as amended
and restated from time to time.
“Re-allotment Notice” has the meaning set forth in Section 2.2(c) hereof.
“Restricted Shareholder” has the meaning set forth in Section 2.1(a) hereof.
“Sale Transaction” has the meaning set forth in Section 4.1 hereof.
“Selling Holder” has the meaning set forth in Section 2.3 hereof.
“Series A Preferred Shares” means any and all of the Company’s Series A Preferred Shares, par
value US$0.001 per share, with the rights and privileges as set forth in the Memorandum and
Articles.
“Shares” means the Company’s Ordinary Shares and/or Series A Preferred Shares.
“Share Purchase Agreement” has the meaning set forth in the Recitals hereof.
“Transfer” or “Transferor” has the meaning set forth in Section 2.2(a) hereof.
“Transfer Notice” has the meaning set forth in Section 2.2(a) hereof.
“Trade Sale” has the meaning set forth in Section 4.1 hereof.
