AUTHORIZATION
EXHIBIT
10.6
This
Authorization (the “Authorization”) is made by and between the following parties
on June 24, 2005:
PARTY
A: TAIYUAN PUTAI BUSINESS CONSULTING CO., LTD.
LEGAL
ADDRESS: 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxx
PARTY
B: SHANXI PUDA RESOURCES
CO., LTD.
LEGAL
ADDRESS: 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxx
PARTY
C: Zhao Yao
ADDRESS:
Meiyun Jiashu Yuan, Liulin County, Shanxi Province, China.
In
this
Authorization, each Party A, Party B and Party C shall be referred to
individually as a “Party”, and they shall be collectively referred to as the
“Parties”.
WHEREAS,
Party A
is a wholly foreign owned enterprise registered in The People's Republic
of
China (the "PRC") under the laws of the PRC;
WHEREAS,
Puda
Investment Holding Limited (“Puda”), an International Business Company
incorporated in the British Virgin Islands, owns all of the registered capital
of Party A;
WHEREAS,
Party B
is a domestic company with exclusively domestic capital registered in the
PRC
and is engaged in the business of coal crushing, preparation and cleaning
(“Business”);
WHEREAS,
Party A
has established a business relationship with Party B by entering into an
Exclusive Consulting Agreement dated the same date hereof (“Consulting
Agreement”), an Operating Agreement dated same date hereof (“Operating
Agreement”), and a Technology License Agreement dated the same date hereof
(“License Agreement”) (collectively the foregoing agreements are hereinafter
referred to as the “Affiliation Agreements”);
WHEREAS,
Party B
is an affiliated Chinese entity of Party A;
WHEREAS,
pursuant to the Affiliation Agreements between Party A and Party B, Party
B
shall pay Party A certain fees as set forth in the Affiliation Agreements,
and
Party B’s daily operations will have a material effect on its ability to pay the
fees payable to Party A;
WHEREAS,
Party C
presently owns 20% of the registered capital of Party B; and
WHEREAS,
Party
A, Party B and Party C agree to further clarify matters relating to the
operation of Party B and its Business, the governance of Party B, and the
exercise of voting power over the registered capital of Party B owned and
held
by Party C pursuant to provisions of this Authorization.
NOW,
THEREFORE, upon
mutual discussions and negotiations, the Parties have reached the following
agreements:
1. Authorization
of Voting Power
1.1 Party
C
hereby irrevocably authorizes Party A to undertake and exercise all of his
rights as a holder and owner of registered capital of Party B (“Holder”)
pursuant to the laws of the PRC and the organization documents of Party B
(“Authorized Rights”). The Authorized Rights include, but are not limited to:
(a) appointment of Party A as the duly authorized representative of the Holder;
(b) participation in the meetings of the Holders and voting of the registered
capital of Party B either in person or by proxy; (c) appointment of Party
B’s
directors; and (d) auditing the financial information of Party B.
1.2 Party
A
accepts the authorization contained in Section 1.1 and shall exercise such
Authorized Rights in the name of Party C according to the provisions of this
Authorization.
1.3 Party
B
acknowledges and accepts this Authorization and shall not take any actions
or
act in any manner inconsistent with the provisions of this
Authorization.
1.4 Party
C
agrees that, upon the request of Party A at any time and from time to time,
it
will execute any and all further documentation including, without limitation,
powers of attorney, voting rights authorizations and/or proxies, to enable
Party
A to exercise the Authorized Rights granted to it hereunder at any meeting
of
the holders of Party B’s registered capital, and to further take any and all
actions necessary for Party A to exercise the Authorized Rights hereunder.
2. Term
of
Authorization
The
term
of this authorization is from the date hereof until June 1, 2025. Within
three
months prior the expiration of the term of this authorization, Party A may
elect
to renew this authorization for an additional twenty (20) year period after
the
initial term hereof or any renewal term.
3. Remuneration
Party
A
shall not receive any remuneration for exercising the Authorized Rights
hereunder.
4. Warranties
and Representations
4.1 The
Parties
of this Authorization hereby represent and warrantee that they:
(a) Possess
appropriate competence, authority and power to conclude this
Authorization;
(b) have
capability to fulfill obligations under this Authorization;
(c) No
performance of obligations under this Authorization is in breach of their
obligations under any other binding agreements;
(d) the
execution
and delivery of this Authorization by the Parties and the performance of
provisions hereof will not (i) violate any applicable laws, regulations,
rules,
judicial or administrative orders, or arbitral wards or judgments binding
on the
Parties, (ii) contravene any article, condition or provision of the
organizational documents of Party B, or (iii) breach any provision of any
agreement or contract or any undertaking to which the Parties are a party.
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4.2 Party
C
hereby warrants, represents and covenants with respect to his registered
capital
of Party B that: (i) he has the full and legal right and title to the Authorized
Rights; (ii) he possesses the full legal capacity to convey the Authorized
Rights to Party A; (iii) he has taken and will take all steps necessary to
authorize and approve the conveyance of the Authorized Rights to Party A;
and
(iv) he possesses the full and non-defective rights and title to the Authorized
Rights and there is no pledge, guarantee, other types of encumbrances or
any
other rights or claims that another party can make to the Authorized Rights.
5. Settlement
of
Dispute; Governing Law
5.1 The
Parties
shall first strive to settle all disputes regarding interpretation and
enforcement of any provisions of this Authorization through friendly
consultation.
5.2 If
the
parties fail to settle the disputes through consultation, the disputes shall
be
referred to China International Economic and Trade Arbitration Committee
for
arbitration according to its existing arbitration rules. The place of
arbitration shall be in Hong Kong; and the language used in arbitration shall
be
English. The decision of arbitration shall be final and binding upon all
parties.
5.3 This
Authorization shall be interpreted and construed in accordance with the laws
and
regulations of the PRC.
6. Miscellaneous.
6.1 This
Authorization is made in one or more counterparts
and each
counterpart shall constitute one and the same instrument.
6.2 The
headings of this Authorization are for convenience only, and shall not be
used
to interpret, explain or otherwise affect the meanings of the provisions
of this
Authorization.
6.3 In
the
event that one or several of the provisions of this Authorization are ruled
invalid, illegal or unenforceable in any aspect in accordance with any laws
or
regulations, the validity, legality or enforceability of the remaining
provisions of this Authorization shall not be affected or compromised in
any
aspect. The Parties shall strive in good faith to replace such invalid, illegal
or unenforceable provisions with effective provisions, and the economic effect
of such effective provisions shall be as close as possible to the economic
effect of those invalid, illegal or unenforceable provisions.
6.4 Any
Party
may waive the terms and conditions of this Authorization, provided that such
a
waiver must be provided in writing in English and shall require the signatures
of the Parties. No waiver by any Party in certain circumstances with respect
to
a breach by other Parties shall operate as a waiver by such a Party with
respect
to any similar breach in other circumstances.
6.5 Any
amendment and supplement of this Authorization shall come into force only
after
a written agreement in the English language is signed by all parties. The
amendment and supplement duly executed by all parties shall be part of this
Authorization and shall have the same legal effect as this
Authorization.
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6.6 This
Authorization is executed in English only, and the executed English language
Authorization shall prevail in all cases. This Authorization may be executed
in
counterparts, each of which shall constitute one and the same agreement,
and by
facsimile or electronic signature.
6.7 Any
notice which is given by the parties hereto for the purpose of performing
the
rights, duties and obligations hereunder shall be in writing in the English
language. Where such notice is delivered personally, the time of notice is
the
time when such notice actually reaches the addressee; where such notice is
transmitted by telex or facsimile, the notice time is the time when such
notice
is transmitted. If such notice does not reach the addressee on business date
or
reaches the addressee after the business time, the next business day following
such day is the date of notice. The delivery place is the address first written
above of the parties hereto or the address advised in writing from time to
time.
The writing form includes facsimile and telex.
[Remainder
of this page intentionally left blank.]
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IN
WITNESS WHEREOF the parties hereto have caused this Authorization to be duly
executed on their behalf by a duly authorized representative as of the effective
date first written above.
PARTY
A: TAIYUAN PUTAI BUSINESS CONSULTING CO., LTD
By:
/s/ Zhao Xxxx
Xxxx
Ming, Chairman and CEO
PARTY
B: SHANXI PUDA RESOURCES CO., LTD.
By:
/s/
Zhao Xxxx
Xxxx
Ming, Chairman and CEO
PARTY
C:
/s/
Zhao
Xxx
Xxxx
Yao
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