EX-10.2
4
ex10-2.htm
EXCLUSIVE
PURCHASE OPTION AGREEMENT
This
Exclusive Purchase Option Agreement (this “Agreement”) is entered into by and among all the parties below on
December 10, 2018, in the People’s Republic of China (“PRC”):
Party
A: Adamant DRI Processing and Minerals Group, a corporation organized under the laws of the State of Nevada, with its address
at Chunshugou Luanzhuang Village, Zhuolu County, Zhangjiakou, Hebei Province. Adamant is the owner of all of the equity of China
Real Fortune Mining Limited, a BVI corporation, which owns all of the equity of Real Fortune Holdings Limited, a Hong Kong limited
company, which in turn owns all of the issued and outstanding capital stock of Zhangjiakou Tongda Mining Technologies Service
Co., Ltd., a Chinese limited company.
Party
B: Xxxx Xxx, a citizen of the PRC with Chinese identification No.: 000000000000000000 and PRC passport No.: X00000000
with an address at13B-1 South Garden Fengye Building, Southeast of Nanshan Street, Nanshan District, Shenzhen; and
Party
C: Shenzhen Dingshang Technology Co., Ltd.,
a
company with limited liability which has been duly incorporated and is validly existing in the territory of the PRC pursuant to
the laws of the PRC with its address at 00X-0 Xxxxx Xxxxxx Xxxxxx Xxxxxxxx, Xxxxxxxxx of Nanshan Street, Nanshan District, Shenzhen.
In
this Agreement, each of Party A, Party B and Party C shall be referred to as a “Party” respectively, and they shall
be collectively referred to as the “Parties”.
WHEREAS:
(1)
On the date of execution of this Agreement, Party B is the only shareholder of Party C and duly holds 100% of the shares of Party
C;
(2)
Party B agrees to irrevocably confer upon Party A an exclusive option to purchase all the equities Party B holds in Party C, so
that Party A or a third party designated by Party A (“Designee”) may have the right to purchase all the equities Party
B holds in Party C (“Object Equities”) at any time when the law of the PRC permits and Party A deems it proper. And
Party A agrees to accept the above-mentioned exclusive purchase option.
(3)
Party C agrees to irrevocably confer upon Party A an exclusive purchase option to purchase all the assets of Party C, so that
Party A or its Designee may have the right to purchase all the assets of Party C (“Object Assets”) at any time when
the laws of the PRC permits and Party A deems it proper. And Party B agrees to such grant and Party A agrees to accept the above-mentioned
exclusive purchase option.
NOW,
THEREFORE, with the consensus reached through negotiation, all parties have entered into this Agreement and agreed to abide
by it pursuant to the applicable laws, regulations and rules of the PRC (“laws of the PRC”).
| 1. | Conferring
and Exercise of Purchase Option |
| | 1.1 | Exclusive
Purchase Option of the Object Equities. Party B hereby irrevocably confers upon Party A the exclusive option to purchase all
the equities Party B holds in Party C (“Equity Purchase Option”). |
| | 1.1.1 | This
Agreement is executed on the date first above written and shall take effect as of such date (such day, the “Effective
Date”), and subject to earlier termination by Party A, shall continue in effect until the thirtieth anniversary of the
Effective Date (the “Initial Term”); provided, that if this Agreement has not been terminated by Party A prior
to the end of the Initial Term or a Renewal Term (as the case may be), the term of this Agreement automatically and without
any action of any party shall be extended for additional successive ten year periods thereafter (each a “Renewal Term,”
and collectively with the Initial Term, the “Term”), unless not less than 30 days prior to the end of the Initial
Term or any Renewal Term Party A notifies Party B and Party C in writing that this Agreement shall terminate at the end of
the Initial Term or that Renewal Term, as the case may be. In no event shall Party B or Party C have the right to unilaterally
terminate this Agreement. |
| | | |
| | 1.1.2 | Commencing
upon the Effective Date and continuing through the Term of this Agreement (“Exercise Period”), Party A
or its Designee shall have the right to purchase all or part of the equities Party B holds in Party C pursuant to the related
terms and conditions under this Agreement and at the Exercise Price for Equity Purchase Option (as defined hereunder), provided
that the laws of the PRC at that time permits. Party B agrees to enter into an Equity Transfer Agreement (“Equity
Transfer Agreement”) with Party A or its Designee in the format proposed by Party A, unless the laws of the PRC
require another format. The Exercise Period under this Agreement may be extended before the expiration date through mutual
agreement by all parties to this Agreement. |
| | | |
| | 1.1.3 | Where
the laws of the PRC permits and Party A sends the Equity Purchase Exercise Notice (as defined in Subsection 2.2.1), Party
B and Party C shall unconditionally cooperate with Party A to carry out the procedures prescribed by Party A or its Designee
and transfer all or part of the Object Equities to Party A or its Designee, and transact all necessary formalities such as
review and approval, permit, registration and filing. |
| | | |
| | 1.1.4 | The
Object Equities shall be free of any Security Interest and Party B shall not grant any Security Interest on the Object Equities
during the term of this Agreement. For the purpose of this Agreement, Security Interest means any mortgage, pledge, the right
or interest of the third party, any purchase right of equity interest, right of acquisition, right of first refusal, right
of set-off, ownership detainment or other security arrangements; however, it does not include any security interests created
under the Equity Pledge Agreement entered into by Party A and Party B on the same day as this Agreement (“Equity
Pledge Agreement”). |
| | | |
| | 1.1.5 | During
the Exercise Period, if the holding of all or part of the Object Equities by Party B is or will be deemed to violate the applicable
laws, Party B and Party C shall immediately send a written notice to Party A to explain the reason in detail and shall take
such steps to preserve Party A’s right to purchase the Object Equities as Party A shall reasonably request. |
| | 1.2 | Exclusive
Purchase Option to the Object Assets. Party C hereby irrevocably confers upon Party A the exclusive option to purchase all
of the assets of Party C (“Assets Purchase Option”). The Equity Purchase Option and the Assets Purchase
Option collectively are referred to as “Purchase Option.” |
| | 1.2.1 | During
the Exercise Period, Party A or its Designee shall have the right to purchase all or part of the assets owned by Party C pursuant
to the terms and conditions under this Agreement at the Exercise Price for Assets Purchase Option or, in the case of the purchase
of less than all the assets, a percentage thereof (as defined hereunder), provided that the laws of the PRC at that time permits.
Party C agrees that upon exercise of the Assets Purchase Option, Party C will enter into an assets transfer agreement (“Assets
Transfer Agreement”) with Party A or its Designee in the format proposed by Party A or its Designee unless the laws
of the PRC require another format. |
| | | |
| | 1.2.2 | Where
the laws of the PRC permits and Party A sends the Asset Purchase Exercise Notice (as defined in Subsection 2.3.1), Party B
and Party C shall unconditionally cooperate with Party A to carry out the above procedures and transfer all or part of the
Object Assets to Party A or its Designee, and transact all necessary formalities such as review and approval, permit, registration
and filing. |
| | 1.2.3 | When
Party A exercises the Assets Purchase Option, Party B and Party C shall ensure that all other shareholders of Party C, if
any, approve the asset transfer under this Agreement. |
| | 2.1 | Pursuant
to the applicable laws of the PRC, Party A shall have the right to determine the time, manner and number of exercises for
the Purchase Option. |
| | 2.2 | Exercise
steps to purchase equities: |
| | 2.2.1 | During
the Exercise Period, Party A may send an exercise notice (“Equity Purchase Exercise Notice”) to Party B
to exercise the Equity Purchase Option under this Agreement to purchase all or part of the Object Equities or transfer all
or part of the Object Equities to a Designee, provided that the laws of the PRC permits at that time. |
| | 2.2.2 | Upon
receipt of the Equity Purchase Notice pursuant to Subsection 2.2.1 above or earlier if requested by Party A, Party B shall
immediately: |
| | (a) | enter
into an Equity Transfer Agreement in the format reasonably requested by Party A or its Designees with such modifications as
are required by the laws of the PRC; |
| | (c) | revise
the Articles of Association of Party C together with Party A and/or its Designee to ensure that Party A or its Designee may
own the Equities of Party C; |
| | (d) | cause
Party C to promptly convene a shareholder’s meeting to pass the resolutions to approve the equity transfer pursuant
to the exercise of the Equity Purchase Option and any requested amendment to the Articles of Association of Party C; |
| | (e) | together
with Party A and/or its Designee and other shareholders of Party C at that time, handle all necessary approval and examination,
registration and filing procedures required by the laws of the PRC within thirty (30) business days as of the date of receipt
of the Equity Purchase Exercise Notice by Party B or an earlier time agreed upon by the parties; and |
| | (f) | execute
all other requisite contracts, agreements or documents, obtain all requisite approvals and consents of the government, conduct
all necessary actions to transfer the valid ownership, without any Security Interest, of the Object Equities to Party A and/or
its Designee, and cause Party A and/or its Designee to be the registered owner of the Object Equities. |
| | 2.3 | Exercise
steps to purchase assets: |
| | 2.3.1 | During
the Exercise Period, Party A may send an exercise notice (“Assets Purchase Exercise Notice”) to Party C
to exercise the Assets Purchase Option under this Agreement, to purchase all or part of the Object Assets owned by Party C
or transfer all or part of the Object Assets to a Designee, provided that the laws of the PRC permits at that time. |
| | 2.3.2 | Once
Party C receives the Assets Purchase Exercise Notice pursuant to Subsection 2.3.1 above or earlier if requested by Party A,
Party C shall immediately: |
| | (a) | enter
into an Assets Transfer Agreement in the in the format reasonably requested by Party A or its Designees with such modifications
as are required by the laws of the PRC; |
| | (b) | convene
a shareholder’s meeting to pass the resolution to approve the exercise of the Assets Purchase Option; and |
| | (c) | together
with Party B and all other shareholders of Party C at that time execute all other requisite contracts, agreements or documents,
obtain all requisite approvals and consents of the government, conduct all necessary actions to transfer the valid ownership,
without any security interest, of the Object Assets to Party A and/or it Designee, and cause Party A and/or its Designee to
be the registered owner of the Object Assets (if necessary). |
| | 2.4 | Before
Party A obtains the Object Equities or the Object Assets by means of exercising either the Equity Purchase Option or the Assets
Purchase Option, Party B and/or Party C shall entrust Party A to manage Party C pursuant to the Management Entrustment Agreement
entered into by and between Party A and Party C on the same day as this Agreement. |
During
the Exercise Period, where Party A deems it necessary and the laws of the PRC at that time permits it to purchase the equities
or assets of Party C, Party A may immediately exercise the Equity Purchase Option or the Assets Purchase Option, and purchase
the Object Equities or Object Assets. Party A shall have the right to choose to exercise either the Equity Purchase Option or
the Assets Purchase Option; and the exercise of the Equity Purchase Option will not affect the exercise of the Assets Purchase
Option and vice versa.
| | 4.1 | Exercise
price for Equity Purchase Option (“Exercise Price for Equity Purchase Option”) or Assets Purchase Option
(“Exercise Price for Assets Purchase Option”) |
Unless
an appraisal is required by the laws of China for the consummation of the Equity Purchase Option or the Assets Purchase Option
when exercised by Party A, the purchase price of the Object Equities or Object Assets (the “Purchase Price”) shall
be an amount equal to the lower of (i) the actual registered capital of Party C corresponding to the Object Equities to be acquired
and (ii) an amount equal to the product of (x) RMB 1,000,000 and (y) a fraction, the numerator of which is the number of Object
Equities being purchased upon such exercise from Party B and the denominator of which is the total number of outstanding equity
interests of Party C on the date of the Equity Purchase Exercise Notice or Assets Purchase Exercise Notice, as the case may be,
provided that in the case of the purchase of a portion of the assets, the numerator shall be the net fair market value of the
assets acquired and the denominator shall be the net fair market value of all of the Party C’s assets as of the date of
the Assets Purchase Exercise Notice.
If
after the delivery of the Assets Purchase Exercise Notice or the Equity Purchase Option Exercise Notice, it is determined that
the laws of China do not permit the purchase of the Optioned Equity Interests and/or Assets at the price provided for herein,
the Purchase Price shall be the lowest price allowed by law and Party A shall have the right to rescind its Purchase Option Notice
and continue the management arrangements then in place.
| 5. | Representations
and Warranties |
| | 5.1 | Each
party respectively represents and warranties to the other parties that: |
| | 5.1.1 | it
has the right to execute this Agreement, the Equity Transfer Agreement, and the Assets Transfer Agreement, and the capability
to perform its obligations under this Agreement, the Equity Transfer Agreement, and the Assets Transfer Agreement; |
| | 5.1.2 | it
has carried out necessary internal derision-making procedures, obtained proper authority, acquired all the necessary consent
and approval of any requisite third party and government authority to enter into and perform its obligations under this Agreement,
the Equity Transfer Agreement, and the Assets Transfer Agreement; and |
| | 5.1.3 | once
executed, this Agreement, the Equity Transfer Agreement, and the Assets Transfer Agreement will constitute the legal, valid,
and binding obligation of each party, and each party will be subject to compulsory enforcement on it pursuant to the terms
and conditions under this Agreement, the Equity Transfer Agreement, and the Assets Transfer Agreement. |
| | 5.2 | Party
B hereby represents and warrants to Party A that: |
| | 5.2.1 | Party
B is a shareholder, duly and legally registered, of Party C and has paid the subscribed registered capital in full sum pursuant
to the laws of the PRC. Party B is the only shareholder of Party C; |
| | | |
| | 5.2.2 | The
Object Equities held by Party B can be freely transferred without anyone’s prior consent, and the Object Equities are
free of encumbrances of any kind, other than the Security Interest pursuant to the Equity Pledge Agreement; |
| | | |
| | 5.2.3 | Party
B has complied with all the laws of the PRC and regulations applicable to the purchase of assets and equities in connection
with this Agreement, the Equity Transfer Agreement, and the Assets Transfer Agreement; |
| | | |
| | 5.2.4 | No
litigation, arbitration or administrative procedure relevant to the Object Equities or Party B is in process or to be settled,
and Party B has no knowledge of any pending or threatened claim; |
| | | |
| | 5.2.5 | Party
B has not sold or agreed to sell the Object Equities to any third party other than Party A or its Designee, and Party B has
no future plans to sell or agree to sell the Object Equities to any third party other than Party A or its Designee. Party
B will not grant any Security Interest in the Object Equities or any right to purchase the Object Equities; |
| | | |
| | 5.2.6 | Party
B strictly abides by the obligations under the Articles of Association of Party C. There are no circumstances that may affect
the legal status of Party B as the shareholder of Party C, or any circumstance that may prevent Party A from exercising the
Equity Purchase Option under this Agreement; |
| | | |
| | 5.2.7 | Neither
the execution and delivery of this Agreement, the Equity Transfer Agreement or Assets Transfer Agreement, nor the performance
of the obligations under this Agreement, any Equity Transfer Agreement or Assets Transfer Agreement will: (i) violate any
laws of the PRC; (ii) conflict with its Articles of Association or other organizational documents; (iii) breach any contracts
or documents to which Party B is a party or which bind Party B; (iv) violate any acquired permits, approvals or any valid
qualifications; or (v) result in the ceasing or revocation or additional conditions to the acquired permits or approvals; |
| | | |
| | 5.2.8 | Party
B, upon the request of Party A, will appoint any person designated by Party A to be the director of Party C; and |
| | | |
| | 5.2.9 | Party
B shall promptly notify Party A of any pending or threatened litigation, arbitration or administrative procedure related to
the assets, business and income of Party C, and tender to Party A the sole control of the defense and settlement of such claim
and cooperate with such defense and/or settlement at its own expense. |
| | 5.3 | Party
C hereby represents and warrants to Party A that: |
| | 5.3.1 | Party
C is a company with limited liability, which has been duly incorporated and validly existing pursuant to the laws of the PRC; |
| | | |
| | 5.3.2 | Party
C has stated to Party A, in the Article 5.1 of Management Entrustment Agreement by on the same day as this Agreement, the
legal status of land occupied for production facilities, the legal status of production facilities and the contractual arrangement
with the local county government in connection with mining rights surrounding the production facilities. |
| | | |
| | 5.3.3 | Party
C complies with all PRC laws and regulations applicable to the purchase of assets and equities in connection with this Agreement,
the Equity Transfer Agreement, and the Assets Transfer Agreement; |
| | | |
| | 5.3.4 | The
shares of Party C are transferable, and Party C has not permitted or caused any Security Interest to be imposed upon the shares
of Party C, other than the Security Interest pursuant to the Equity Pledge Agreement; |
| | | |
| | 5.3.5 | Party
C does not have any unpaid debt, other than (i) debt arising from the ordinary course of business; and (ii) debt disclosed
to Party A and obtained written consent by Party A; |
| | | |
| | 5.3.6 | No
litigation, arbitration or administrative procedure relevant to Object Equities, the Object Assets or Party C itself is in
process or to be settled and Party C has no knowledge of any pending or threatened claim; |
| | | |
| | 5.3.7 | Party
C has not sold or agreed to sell any of its assets to any third party other than Party A or its Designee, and Party C has
no future plans to sell or agree to sell the Object Assets to any third party other than Party A or its Designee. Party C
will not grant any party the right to purchase any of its assets or grant a Security Interest on its assets to any party; |
| | | |
| | 5.3.8 | Neither
the execution and delivery of this Agreement, the Equity Transfer Agreements or Assets Transfer Agreements, nor the performance
of the obligations under this Agreement, any Equity Transfer Agreements or Assets Transfer Agreements will: (i) violate any
laws of the PRC; (ii) conflict with its Articles of Association or other organizational documents; (iii) breach any contracts
or documents to which Party C is a party or which bind Party C; (iv) violate any acquired permits, approvals or any valid
qualifications; or (v) result in the ceasing or revocation or additional conditions to the acquired permits or approvals; |
| | | |
| | 5.3.9 | Party
C will agree to look for insurance from an insurance company acceptable to Party A. The amount and category of insurance shall
be the same as those held by the companies which are in the same industry with similar business and own the similar properties
and assets as Party C; |
| | | |
| | 5.3.10 | Upon
the request of Party A, Party C shall provide all related operation and finance materials of Party C to the extent that those
materials are available to Party C; and |
| | | |
| | 5.3.11 | Party
C shall promptly notify Party A of any pending or threatened litigation, arbitration or administrative procedure related to
the assets, business and income of Party C, and tender to Party A the sole control of the defense and settlement of such claim
and cooperate with such defense and/or settlement at Party C’s expense. |
| | 5.4 | Before
Party A obtains the Object Equities and Object Assets of Party C by means of exercising either the Equity Purchase Option
or the Assets Purchase Option, without the prior written consent by Party A, Party B and Party C shall not jointly or separately: |
| | 5.4.1 | amend,
modify or revise the Articles of Association of Party C in any form, or change the structure of the shareholders of Party
C; |
| | | |
| | 5.4.2 | agree
to increase or decrease the registered capital or the number of existing shareholders of Party C; |
| | | |
| | 5.4.3 | cause
Party C to have transactions, which may materially affect the assets, business, net assets or other legal rights and liabilities
of Party C, unless these transactions are related to the ordinary course of business or have been disclosed to and the written
consent from Party A has been obtained; |
| | | |
| | 5.4.4. | transfer
or dispose the Object Equities in any manner or grant any security interest or any other third party right on the Object Equities; |
| | | |
| | 5.4.5 | sell,
transfer, mortgage or dispose in any other form, any asset, income and any other legal yield and interest of Party C, or approve
any encumbrance or imposition of any Security Interest on Party C’s assets; |
| | | |
| | 5.4.6 | issue
or provide guarantee, loan or credit to any third party or incur any debt, other than (i) the debt arising from ordinary course
of business; and (ii) the debt has been disclosed to Party A and the written consent by Party A has been obtained. |
| | | |
| | 5.4.7 | terminate
or cause Party C to terminate any material agreement (whose definition is at Party A’s discretion at that time) entered
into by Party C, or enter into any agreement that would conflict with the existing material agreements of Party C and/or Party
B; |
| | | |
| | 5.4.8 | distribute
any distributable profit, bonus, dividends or interests of Party C, unless otherwise stipulated by the laws of the PRC; or |
| | | |
| | 5.4.9 | approve
or adopt any shareholders resolution at a shareholder meeting of Party C which may cause Party C to be merged, acquired or
invested, or to merge, acquire or invest in or associate with any entity other than Party A. |
| 6. | Transfer
of this Agreement |
| | 6.1 | Without
the prior written consent by Party A, Party B and Party C shall not sub-contract, license or transfer its rights and obligations
under this Agreement to any third party or its affiliate; and any transfer of this Agreement without prior written consent
of Party A shall be invalid. |
| | 6.2 | Party
B and Party C agree and confirm that Party A may transfer its rights and obligations under this Agreement, without the consent
of Party B and/or Party C, to any third party, provided that Party A notifies Party B and Party C of such transfer in writing. |
| | 7.1 | All
parties agree that, all materials, documents, communications and other information obtained in the negotiation, execution
or performance of this Agreement, the Equity Transfer Agreement, and the Assets Transfer Agreement, whether commercial, technical
or in any other form (“Confidential information”), shall be strictly kept confidential and used only for the performance
of the obligations under this Agreement, the Equity Transfer Agreement, and the Assets Transfer Agreement. Unless the other
parties consent in writing, none of the parties shall release, leak or disclose any Confidential Information to any third
party. |
| | 7.2 | Each
party may disclose the Confidential Information in the following circumstances: (1) where the laws, court orders or the competent
courts with jurisdiction require, and such disclosure may be conducted only within such requirement; (2) where the competent
authority or government department requires; (3) where such Confidential Information has been known to the general public;
(4) where such Confidential Information was owned duly and legally by the disclosing party rather obtained from the other
party before the disclosing party obtains it; (5) the information is required to be disclosed subject to the applicable laws
or the rules or provisions of a stock exchange or securities governing authority; and (6) the information is disclosed by
each party to its legal or financial consultant relating the transaction of this Agreement, the Equity Transfer Agreement,
and the Assets Transfer Agreement, and this legal or financial consultant shall comply with the confidentiality set forth
in this Section 7. |
However,
for the circumstances aforesaid, where any party discloses the Confidential Information, it shall inform the other parties of
the Confidential Information to be disclosed.
| | 7.3 | Nonetheless
other provisions of this Section 7, each party shall have the right to disclose the Confidential Information to its lawyer,
accountant, other professional consultants, directors or senior officers; such personnel shall undertake in writing to treat
such information as Confidential Information by taking the measures similar to those provided in 7.1 of this Section. |
| | 7.4 | The
disclosure of the Confidential Information by staff or employed institution of any party shall be deemed as the disclosure
of such Confidential Information by such party, and such party shall bear the liabilities for breaching the agreement. |
| | 7.5 | This
Section 7 shall survive whatever this Agreement is invalid, amended, revoked, terminated or unable to implement by any reason. |
| | 8.1 | Any
parties shall sufficiently perform this Agreement. Any Party breaching this Agreement shall bear the liability as arising
out of and in relation thereto. If such breach causes damages to any other party, the breaching party shall compensate such
party for all such damages. |
| | 8.2 | If
Party B breaches this Agreement, in addition to the remedies stipulated by the laws of the PRC, Party A may also take the
following measures: |
| | 8.2.1 | require
Party B to transfer all or any part of the Object Equities immediately at the Exercise Price for Equity Purchase Option to
Party A or its Designee, provided that the laws of the PRC permit at that time; and |
| | 8.2.2 | require
Party B to compensate all direct and indirect damages, including but not limited to all the legal fees, travel fees and investigation
fees paid for seeking and enforcing such remedies. |
| | 8.3 | If
Party C breaches this Agreement, in addition to the remedies stipulated by the laws of the PRC, Party A may also take the
following measures: |
| | 8.3.1 | require
Party C to transfer all or part of the Object Assets immediately at the Exercise Price for Assets Purchase Option to Party
A or its Designee, provided that the laws of the PRC permit at that time; |
| | 8.3.2 | require
Party B to exercise the rights as a shareholder of Party C, and cure the breach of Party C; if after ten (10) days after Party
A sends a written notice to Party B or Party C, such breach has not been cured, Party A shall have the right to require Party
B to transfer all or part of the Object Equities immediately at the Exercise price for Equity Purchase Option to Party A or
its Designee provided that the laws of the PRC permit at that time; or |
| | 8.3.3
| require
Party B and Party C to compensate all direct and indirect damages, including but not limited to all the legal fees, travel
fees and investigation fees paid for seeking and enforcing such remedies. |
| 9. | Governing
Law and Dispute Resolution |
| | 9.1 | The
execution, effectiveness, construction, performance, amendment and termination of this Agreement and the resolution of disputes
hereunder shall be governed by the formally published and publicly available laws of the PRC. Matters not covered by formally
published and publicly available laws of the PRC shall be governed by international legal principles and practices. |
| | 9.2 | All
parties agree that any dispute arising from or in relation to this Agreement shall first be settled by the friendly negotiation
of both parties. If the negotiation fails within 45 days, each party shall have the right to file the dispute with China International
Economic and Trade Arbitration Commission (“CIETAC”) in Beijing for arbitration pursuant to the currently
effective arbitration rules of CIETAC at the time of application. This arbitration shall be final and bind all parties and
shall be enforceable in any court of competent jurisdiction. The arbitration fees shall be borne by the losing party. |
| | 9.3 | Upon
the occurrence of any disputes arising from the construction and performance of this Agreement or during the pending arbitration
of any dispute, except for the matters under dispute, the Parties to this Agreement shall continue to exercise their respective
rights under this Agreement and perform their respective obligations under this Agreement. |
| 10. | Effect
and Termination |
| | 10.1 | This
Agreement shall come into effect on and after the date that it is signed and/or stamped by all parties. |
| | 10.2 | In
any of the following circumstances, this Agreement shall be terminated: |
| | 10.2.1 | where,
during the Exercise Period, all parties reach an agreement to terminate this Agreement; |
| | 10.2.2 | where,
during the Exercise Period, Party A notifies the other parties thirty (30) days in advance to terminate this Agreement; in
such circumstance, Party A shall not assume any liabilities as arising out of and in relation thereto; |
| | 10.2.3 | at
the expiration of the Exercise Period provided; however, Party A may extend the Exercise Period and this Agreement in its
sole discretion; or |
| | 10.2.4 | upon
the unanimous agreement by all parties. |
| | 10.3 | Section
7 regarding confidentiality and Section 12 regarding indemnification shall survive the termination of this Agreement. |
All
taxes and fees resulting from the execution and performance of this Agreement, the Equity Purchase Agreement and the Assets Purchase
Agreement shall be borne by Party C.
Party
B and Party C shall indemnify and hold harmless Party A or its Designee, their affiliates and each of their respective successors
and assigns, and their respective officers, directors, employees and agents (collectively, “Indemnified Party”)
from and against any liabilities, claims (including claims by third parties), demands, judgments, losses, costs, damages or expenses
whatsoever (including reasonable attorneys’, consultants’ and other professional fees and disbursements of every kind,
nature and description) (collectively, “Damages”) such Indemnified Party may sustain, suffer or incur and that
result from, arise out of or relate to the willful breach of this Agreement, the Equity Purchase Agreement and the Assets Purchase
Agreement by Party B or Party C.
| | 13.1 | Entire
Agreement. This Agreement and the Exhibits and Schedules hereto contain the entire understanding between the parties, no other
representations, warranties or covenants having induced any party to execute this Agreement, and supersede all prior or contemporaneous
agreements with respect to the subject matter hereof. All references to schedules and exhibits are to exhibits and schedules
attached to and to become a part of this Agreement unless otherwise indicated. |
| | 13.2 | Amendment.
Any amendment and/or rescission shall be in writing and signed by the authorized representatives of all parties. Such revision
shall be a valid integral part of this Agreement. |
| | 13.3 | Headings.
The headings of any Sections or other portion of this Agreement are for convenience only and are not to be considered in construing
this Agreement. |
| | 13.4 | Construction.
References in this Agreement to “Sections,” “Schedules” and “Exhibits” shall be to the
Sections, Schedules and Exhibits of this Agreement, unless otherwise specifically provided; any use in this Agreement of the
singular or plural, or the masculine, feminine or neuter gender, shall be deemed to include the others, unless the context
otherwise requires; the words “herein”, “hereof” and “hereunder” and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this
Agreement; the word “including” when used in this Agreement shall mean “including without limitation”;
and except as otherwise specified in this Agreement, all references in this Agreement (a) to any agreement, document, certificate
or other written instrument shall be a reference to such agreement, document, certificate or instrument, in each case together
with all exhibits, schedules, attachments and appendices thereto, and as amended, restated, supplemented or otherwise modified
from time to time in accordance with the terms thereof; and (b) to any law, statute or regulation shall be deemed references
to such law, statute or regulation as the same may be supplemented, amended, consolidated, superseded or modified from time
to time. |
| | 13.5 | Severability.
Any provision hereof that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability, without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction. |
| | 13.6 | Waiver.
No failure or delay of either party to enforce any right hereunder shall constitute a waiver of any such right hereunder.
No waiver shall be effective hereunder unless in writing and a waiver shall only be effective for the specific act or circumstance
for which it is given and not for any future act or circumstance. |
| | 13.7 | Succession
of this Agreement. This Agreement shall bind the successors and transferees of all parties. |
| | 13.8 | Language.
This Agreement is in both Chinese and English and signed by all parties, and the two versions have the same effect. Should
there be any discrepancy between the two language versions, the Chinese version shall prevail. |
| | 13.9 | Copies
of this Agreement. This Agreement shall be executed in four counterparts; each party holds one and the rest are used for the
transaction of related formalities. Each of the copies shall be deemed as the original one and has the same effect. |
IN
WITNESS WHEREOF, all parties have signed this Agreement on the date specified on the first page of this Agreement by their
respective authorized representatives.
| Party
A: Adamant DRI Processing and Minerals Group | | |
| Legal
Representative or Authorized Representative (signature): | /s/
Xxxxx Xxxxxx | |
| | | Xxxxx
Xxxxxx | |
| | | | |
| Party
B: Xxxx Xxx (signature): | /s/ Xxxx Xxx | | |
| | | | |
| Party
C: Shenzhen Dingshang Technology Co., Ltd., (seal) | | |
| Legal
Representative or Authorized Representative (signature): | /s/ Xxxx Xxx | |
