EXCLUSIVE OPTION AGREEMENT BETWEEN China New Energy Investment Co., Ltd. AND Beijing Fengyin Xianghe Scientific Technology Co., Ltd. Beijing, CHINA
BETWEEN
China
New Energy Investment Co., Ltd.
AND
Beijing
Fengyin Xianghe Scientific Technology Co., Ltd.
Beijing,
CHINA
This
Exclusive Option Agreement (the “Agreement”) is entered into as of _________,
2010 between the following parties in Beijing.
Party A:
Name:
China New Energy Investment Co., Ltd.
Registered
Address:
Legal
Representative:
Party B:
Name:
Beijing Fengyin Xianghe Scientific Technology Co., Ltd.
Registered
Address:
Legal
Representative:
丙方Party C：
Name:
Zhuolu Dadi Gas Co. Ltd.
Registered
Address: Zhuolu County, Zhangjiakou, Hebei Province
Legal
Representative: ▇▇▇▇ ▇▇▇▇▇▇▇▇
In this
Agreement, Party A and Party B are called collectively as the
“Parties”.
WHEREAS:
|
1.
|
Party
A is a wholly foreign-owned enterprise incorporated under the laws of the
People’s Republic of China (the
“PRC”);
|
|
2.
|
Party
B is a liability limited company incorporated in Beijing and with business
license issued by the Beijing Municipal Administration of Industry and
Commerce;
|
|
3.
|
Party
C is a liability limited company incorporated in Zhuolu County,
Zhangjiakou, Hebei Province.
|
|
4.
|
Party
A and Party B have reached Equity Transfer Agreement on 70% Equity of
Zhuolu Dadi Gas Co. Ltd. (hereinafter referred to as “ETA”) in connection
with Party B transferring 70% equity of Party C to Party
A.
|
NOW, THEREFORE, the Parties
through mutual negotiations hereby enter into this Agreement according to the
following terms and conditions:
1
|
1.
|
THE
GRANT AND EXERCISE OF PURCHASE
OPTION
|
|
1.1
|
Grant:
|
Party B
grants Party A an irrevocable exclusive purchase option. After the completion of
the Transfer under the ETA Party A has right to purchase remaining 30% the
shares of Party C currently owned by Party B. This purchase option is
irrevocable and shall be exercised only by Party A.
|
1.2
|
Exercise
Procedures:
|
|
|
1.2.1
|
Both
Party shall sign Equity Transfer Agreement on 70% Equity
of Zhuolu Dadi Gas Co. Ltd（as
attached）on the date
of execution of this Agreement.
|
|
|
1.2.2
|
Upon
payment of the 2nd Payment (as defined in the ETA), Party A shall notify
Party B in writing within 3 working days regarding its intention of
exercising the Option (the “Option Notice” hereinafter). After the
mentioned period, if the Transferee does not provide the notice to
Transferor, it will deem as the Transferee gives up the option
right.
|
|
|
1.2.3
|
Upon
delivery of the Option Notice, Party B shall execute other necessary
documents (collectively, the “Transfer Documents”) with Party A (or the
qualified person appointed by Party A) in order to effectuate the transfer
of shares.
|
|
|
1.2.4
|
Party
B shall assist Party A to complete the necessary procedures such as
governmental approval, permission, registration, documentations and other
related procedure to complete the
transfer.
|
|
2、
|
Price
of Option
|
The
option price shall be ▇▇▇ ▇▇ million for the 30% of Party C’s equity owned by
Party B.
|
3.
|
REPRESENTATIONS
AND WARRANTIES
|
|
3.1
|
Each
party hereto represents to the other parties that: (1) it has all the
necessary rights, powers and authorizations to enter into this Agreement
and perform its duties and obligations hereunder; and (2) the execution or
performance of this Agreement shall not violate any significant contract
or agreement to which it is a party or by which it or its assets are
bounded.
|
2
|
3.2
|
Party
B represents to Party A that: (1) they are legally registered shareholders
of Party C and have paid the full amount of their respective portions of
Party C's registered capital required under the PRC laws; (2) Party B has
not mortgaged or pledged its shares of Party C, nor has it granted any
security interest or borrowed against its shares of Party C in any form;
and (3) Party B has not sold nor will sell to any third party its equity
interests in Party C.
|
|
4.
|
ASSIGNMENT
OF AGREEMENT
|
|
4.1
|
Party
B shall not transfer their rights and obligations under this Agreement to
any third party without the prior written consent of the Party
A.
|
|
4.2
|
Party
B hereby agrees that Party A shall have the right to transfer all of its
rights and obligation under this Agreement to any third party whenever it
desires. Any such transfer shall only be subject to a written notice sent
to Party B.
|
|
5.
|
CONFIDENTIALITY
|
The
Parties acknowledge and confirm that any oral or written materials exchanged by
the Parties in connection with this Agreement are confidential. The Parties
shall maintain the secrecy and confidentiality of all such materials. Without
the written approval by the other Parties, any Party shall not disclose to any
third party any relevant materials, but the following circumstances shall be
excluded:
|
|
a.
|
The
materials is known or will be known by the public (except for any
materials disclosed to the public by the Party who receives such
materials);
|
|
|
b.
|
The
materials are required to be disclosed under the applicable laws or the
rules or provisions of stock exchange;
or
|
|
|
c.
|
The
materials disclosed by each Party to its legal or financial consultant
relate to the transaction contemplated under this Agreement, and such
legal or financial consultant shall comply with the confidentiality set
forth in this Section. The disclosure of the confidential materials by an
employee of any Party shall be deemed disclosure of such materials by such
Party, and such Party shall be liable for breaching the contract. This
Article shall survive this Agreement even if this Agreement is invalid,
amended, revoked, terminated or unenforceable by any
reason.
|
|
6.
|
BREACH
OF CONTRACT
|
Any
violation of any provision hereof, any incomplete or mistaken performance of any
obligation provided hereunder, any misrepresentation made hereunder, any
material nondisclosure or omission of any material fact, or any failure to
perform any covenants provided hereunder by any Party shall constitute a breach
of this Agreement. The breaching Party shall be liable for any such breach
pursuant to the applicable laws.
3
|
7.
|
APPLICABLE
LAW AND DISPUTE RESOLUTION
|
|
7.1
|
Applicable
Law
|
The
execution, validity, interpretation and performance of this Agreement and the
disputes resolution under this Agreement shall be governed by the laws of
PRC.
|
7.2
|
Dispute
Resolution
|
The
parties shall strive to settle any dispute arising from the interpretation or
performance of this Agreement through friendly consultation. In case no
settlement can be reached through consultation within thirty (30) days after
such dispute is raised, each party can submit such matter to China International
Economic and Trade Arbitration Commission Beijing Branch (the “CIETAC”) in
accordance with its rules. The arbitration shall take place in Beijing. The
arbitration award shall be final, conclusive and binding upon both
parties.
|
8.
|
EFFECTIVENESS
AND TERMINATION
|
|
8.1
|
This
Agreement shall be effective upon the execution hereof by all Parties
hereto and shall remain effective
thereafter.
|
|
8.2
|
This
Agreement may not be terminated without the consent of Party A and Party B
except that Party A may, by giving thirty (30) days prior notice to the
other Parties hereto, terminate this
Agreement.
|
|
9.
|
MISCELLANEOUS
|
|
9.1
|
Amendment,
Modification and Supplement
|
Any
amendment and supplement to this Agreement shall be made by the Parties in
writing. The amendment and supplement duly executed by each Party shall be
deemed an integral part of this Agreement and shall have the same legal effect
as this Agreement.
4
|
9.2
|
Entire
Agreement
|
The
Parties acknowledge that this Agreement, General Framework Agreement for
Cooperation, ETA, Supplementary Agreement for the Escrow Terms and Conditions
for the First Installment and all ancillary agreements to each constitutes the
entire agreement of the Parties with respect to the subject matters therein and
supersedes and replaces all prior or contemporaneous agreements and
understandings in oral or written form.
|
9.3
|
Severability
|
If any
provision of this Agreement is adjudicated to be invalid or non-enforceable
according to relevant PRC laws of the PRC, such a provision shall be deemed
invalid only to the extent the PRC laws are applicable in China, and the
validity, legality and enforceability of the other provisions hereof shall not
be affected or impaired in any way. The Parties shall, through consultation
based on the principal of fairness, replace such invalid, illegal or
non-enforceable provision with valid provision so that any substituted provision
may bring the similar economic effects as those intended by the
invalid, illegal or non-enforceable provision.
|
9.4
|
Headings
|
The
headings contained in this Agreement are for the convenience of reference only
and shall not in any other way affect the interpretation, explanation or the
meaning of the provisions of this Agreement.
|
9.5
|
Language
and Copies
|
This
Agreement is executed in Chinese in six (6) copies; each Party holds two and
each original copy has the same legal effect.
|
9.6
|
Successor
|
This
Agreement shall bind and benefit the successor or the transferee of each
Party.
IN WITNESS THEREFORE, the
parties hereof have caused this Agreement to be executed by their duly
authorized representatives as of the date first written
above.
5
[No Text
Below, Signature Page Only]
PARTY
A: China New Energy Investment Co., Ltd (Seal)
Legal Representative/Authorized Representative(Signature):
PARTY
B: Beijing Fengyin Xianghe Scientific Technology Co., Ltd. (Seal)
Legal Representative/Authorized Representative(Signature):
Legal Representative/Authorized Representative(Signature):
6