OPTION AGREEMENT
Exhibit 4.11
This
Option Agreement (hereinafter “Agreement”) is made on
the 23rd day of December, 2016,at Shijiazhuang, the
People’s Republic of China (the “PRC”) by and
among the following parties:
Hebei
Chuanglian Finance Leasing Co., Ltd. ( “Party A”)
Registered
Address: 0 Xxxx Xxxx Xxxxxx, 00xx Xxxxx,
Shijiazhuang
Legal
representative: Geng Juncai
Hebei
Kaiyuan Yarui Trading Co., Ltd. (“Party B”)
Address:
0 Xxxx Xxxx Xxxxxx, 00xx Xxxxx,
Shijiazhuang
Legal
representative: Li Mingxia
WHEREAS:
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 Hebei Xuhua Trading
Co., Ltd (hereinafter “Xuhua Trading”) 【within the
jurisdiction of china】 , and holds 100% of
the equity of Xuhua Trading, the amount of capital contributed
being 470 million RMB.
1.
THE OPTIONS GRANTED
1.1
GRANT
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 Xuhua Trading.
1.2
TERMS
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.
2.
EXERCISE OF OPTION AND CLOSING
2.1
TIME
OF EXERCISE
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.
The
Grantor agrees, Party A have no limitation in the number of
exercise unless have acquired all the equity interests of 4S
Stores.
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.
2.2
THE
USE OF FUND
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 Xuhua Trading in an appropriate manner.
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2.3
ASSIGNMENT
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.
2.4
NOTICES OF EXECISE
THE OPTION
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:
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”)
The
name of the shareholder after the closing date;
The
amount of equity interest purchased from the Grantor;
Payment
method;
Power
of Attorney (if authorized the third party to exercise the rights)
..
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.
2.5
CLOSING
2.5.1 Grantor
shall urge Xuhua Trading to accomplish the approval of assignment
by the authorized governmental institutions hereunder under the
applicable law of PRC (if any).
2.5.2
Grantor shall cause Xuhua Trading to accomplish the register
procedure promptly in the AIC under the applicable laws of the
PRC.
2.5.3
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.
2.5.4
Grantors shall render Xuhua Trading 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”)
2.6
ACCOMPLISHED
DATE
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.
REPRESENTATIONS AND WARRANTIES
Except
as disclosed, Grantor hereby represents and warrants as
below:
3.1.1
Grantor has full and complete right and authority to execute and
perform this Agreement;
3.1.2
Grantor have performed the contributing obligation of shareholders
in Xuhua Trading 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 Xuhua Trading.
3.1.3
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.
3.1.4
There are no pending and threatened litigations, arbitrations or
any other judicial or administrative proceedings which will
materially impact the performance of this Agreement.
3.1.5
No pledge, indebtedness or any other encumbrances on the equity
interest of Xuhua Trading, and no assignment, donate, pledge or any
other manner to dispose of the equity interest to any third
party;
3.1.6
These equity interests of Xuhua Trading hold by Grantor are free
from any pledge, indebtedness or any other encumbrances of the
third party.
3.1.7
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;
3.1.8
Xuhua Trading is a limited liability company 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. Xuhua Trading does not have any
known or expected incident that may lead such approvals,
authorities and licenses to be cancelled, removed or
suspended
3.1.9
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 Xuhua Trading. Grantor also shall
strive to cause any shareholders of Xuhua Trading 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.
3.1
CONVENANTS
3.2.1
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 Xuhua Trading. 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.
3.2.2
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.
3.2.3
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
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.
4.
TAXES AND FEES
Subject
to applicable laws, the taxes and fees shall be paid by Parties
respectively in the course of carrying out this
Agreement.
5.
BREACH OF AGREEMENT
5.1 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 .
5.2 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.
5.3 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.
5.4
Parties shall be liable respectively for the damages to the extent
that incurred by themselves provide the breach of this Agreement by
both Parties.
6.
GOVERNING LAW AND SETTLEMENT OF DISPUTES
6.1
GOVERNING
LAW
The
application, include, without limitation, execution, effectiveness,
performance, construction of this Agreement shall be governed by
the laws of the PRC.
6.2
AMICABLE
NEGOTIATION
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.
6.3
ARBITRATION
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.
7.
CONFIDENTIALITY
7.1
CONFIDENTIAL
INFORMATION
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
EXCEPTION
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.
8.
MISCELLANEOUS
8.1
ENTIRE
AGREEMENT
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.
8.2
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.
8.3
SEVERABILITY
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.
8.4
WAIVER
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.
8.5
NOTICE
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.
Party
A: Hebei Chuanglian
Finance Leasing Co., Ltd.
Address:
0 Xxxx
Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx
Facsimile:
0000-00000000
Telephone:
0000-00000000
Attention:
Geng
Juncai
Party
B: Hebei Yarui
Trading Co., Ltd.
Address:
0 Xxxx
Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx
Facsimile:
0000-00000000
Telephone:
0000-00000000
Attention:
Li
Mingxia
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Notices
shall be deemed to have been received:
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;
Upon
signature date if delivered by hand (include courier)
Upon 15
days after the date of confirmation of the return receipt if
delivered by registered mail.
8.5.1
BINDING
This
Agreement is binding for both Parties.
8.6
LANGUAGE
This
Agreement signed in quadruplicate originals, with each of equally
binding force.
8.7
DAY
AND BUSINESS DAY
References
to “day” mean the calendar day, “business
day” means the date from Monday to Friday.
8.8
HEADINGS
The
headings in this Agreement are for convenience only and shall not
affect the construction of the Agreement.
8.9
UNSPECIFIED
EVENT
The
event which is not specified in this Agreement shall be negotiated
by both Parties under the law of the PRC.
[SIGNATURE PAGE]
Party A: Hebei Chuanglian Finance Leasing Co., Ltd.（seal）
Authorized
Representative（signature）:
Party B: Hebei Yarui Trading Co., Ltd.（seal）
Authorized
Representative（signature）:
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