VIE Termination Agreement dated December 30, 2019 by and between Green Power Environment Technology (Shanghai) Co., Ltd. And Wuxi Huayang Heavy Machinery Co. Ltd
VIE TERMINATION AGREEMENT
EACH PERSON LISTED IN SCHEDULE 1 HERETO
GREEN POWER ENVIRONMENT TECHNOLOGY (SHANGHAI) CO., LTD.
WUXI HUAYANG HEAVY INDUSTRIES CO., LTD.
VIE TERMINATION AGREEMENT
This VIE Termination Agreement (this “Agreement”), dated as of [December 30, 2019] is made in Shanghai, the People’s Republic of China (“China”), by and among:
Each person listed in Schedule 1 hereto (individually and jointly, “Party A”);
Greenpower environment technology (shanghai) co., Ltd. (“Party B” ),
whose information is listed in Schedule 2 hereto;
Wuxi Huayang Heavy Industries Co., Ltd.( “Party C” ),
whose information is listed in Schedule 3 hereto
In this Agreement, Party A, Party B and Party C is referred to as individually, a “Party”, and collectively, the “Parties”.
|1.||Party A, Party B and Party C have entered into the Consulting Services Agreement, Operating Agreement, Equity Pledge Agreement, Option Agreement, Voting Rights Proxy Agreement dated October 12, 2007;|
|2.||Each of the Parties intends to terminate all of the rights and obligations under the Consulting Services Agreement, the Operating Agreement, the Option Agreement, the Equity Pledge Agreement, and Voting Rights Proxy Agreement (collectively, the “Control Agreements”); and|
|3.||The terms used but not defined in this Agreement shall have the meaning ascribed to it in the Control Agreements.|
NOW, THEREFORE, the Parties agree as follows:
|1.||Termination of Rights and Obligations under the Control Agreements|
|1.1||The Parties agree that the effect and force of the Control Agreements shall be terminated as of the date hereof, and the rights and obligations of each of the Parties therein shall be simultaneously terminated, including without limitation all rights and obligations of Party B and Party C under the Consulting Services Agreement and the Operating Agreement, the equity pledge between Party A and Party B under the Equity Pledge Agreement,the call option of Party B under the Option Agreement and Party B’s proxy rights under Voting Rights Proxy Agreement.|
|1.2||Notwithstanding the foregoing, the terms regarding confidentiality, governing law and dispute resolution (if any) in the Control Agreements shall survive the termination.|
|1.3||If any Party is held liable for any damages due to its breach of any term of the Control Agreements prior to the date hereof, the other Parties agree to waive such liability and not to hold the breach Party liable therefor.|
|2.||Representations and Warranties|
Each of the Parties represents and warrants to the other Parties as follows:
|2.1||It has the power and ability to enter into, deliver and perform this Agreement, and has taken all necessary action to authorize its entry into, performance and delivery of this Agreement;|
|2.2||This Agreement, upon execution, constitutes its legal, valid and binding obligation, and enforceable against its pursuant to the terms hereof; and|
|2.3||Its execution, delivery and performance of this Agreement will not conflict with, restrict or breach any law, regulation or agreement to which it is subject or a party.|
|2.4||It shall make its best reasonable endeavour to prepare or provide any required assistance for any governmental procedure arising from or in connection with the termination of the Control Agreements, including but not limited to the procedures with Administration for Industry and Commerce after the termination of the equity pledge under the Equity Pledge Agreement.|
|3.||Breaches & Liability|
If this Agreement is wholly or partially unenforceable due to breach by any Party of any term under this Agreement, the breaching Party shall be held liable for any loss incurred by the non-breaching Parties (including any lawsuit and legal fees arising therefrom).
|4.1||A notice under or in connection with this Agreement (the “Notice”) shall be:|
|(1)||in writing and in Chinese and/or English; and|
|(2)||delivered personally, sent by email or sent by courier to the Party due to receive the Notice at the address referred to in Clause 4.2 or such other address as a Party may specify by notice in writing to the other Party received before the Notice was dispatched.|
|4.2||For the purposes of this Clause 4, a Notice shall be sent to the addresses and for the attention of those persons set out below:|
|(1)||in the case of Party A:|
|(2)||in the case of Party B:|
|(3)||in the case of Party C:|
or to such other address or email address as the relevant Party may have notified to the other Party by not less than five (5) Business Days’ written notice to the other Parties before the Notice was dispatched.
|4.3||Unless there is evidence that it was received earlier, a Notice is deemed given if:|
|(1)||delivered personally, when left at the address referred to in Clause 4.2;|
|(2)||sent by courier, three (3) Business Days after posting it; or|
|(3)||sent by email, the earlier of (a) the time that the sender receives an automated message from the intended recipient’s information system confirming delivery to the email; (b) the time that the email is first opened or read by the intended recipient; and (c) two (2) hours after the time the email is sent unless the sender receives, within that two- (2) hour period, an automated message that the email has not be delivered.|
通过电子邮件发送，下列时间的较早者：（a）发件人收到目标收件人邮箱系统确认发送成功的自动消息的时间; （b）目标收件人首次打开或阅读电子邮件的时间; （c）电子邮件发送两（2）小时后，除非发件人在两（2）小时内收到电子邮件未送达成功的自动消息。
Each of the Parties acknowledges and confirms that the contents of this Agreement and any oral or written information communicated among the Parties regarding this Agreement shall be confidential. Each of the Parties shall keep such information in confidence and may not disclose it to any third party without prior written consent from the other Parties, except for any information that is (a) known or to be known by the general public without unauthorized disclosure by the receiving Party; (b) required to be disclosed under applicable laws or regulations or court orders or requirements by Securities and Exchange Commission or stock exchange; or (c) disclosed by any Party to its legal or financial advisor in connection with the transaction contemplated hereunder, provided that such legal or financial advisor is subject to confidentiality obligation similar to this Clause 5. Unauthorized disclosure by any Party’s employee or service provider shall be deemed disclosure by such Party for which it shall be held liable. This Clause 5 shall survive termination of this Agreement for any cause.
本协议任何一方承认和确认，本协议的内容以及各方关于本协议的任何口头或书面沟通应予以保密。任何一方应遵守保密义务，未经其他各方的事先书面同意，不得向任何第三方披露该等信息，但以下信息除外：(a) 非因披露方的未授权的披露而为公众所知的信息； (b) 适用的法律或法规要求披露的或法庭命令或证券监管部门或证券交易所要求披露的信息；或(c)任何一方向其法律顾问或财务顾问披露的与本协议项下交易相关的信息，且法律顾问或财务顾问对此承担与本第5条类似的保密义务。任何一方的雇员或服务提供者未经授权的信息披露视为该一方的披露，该一方应对此承担责任。本协议终止后，本第5条仍继续有效。
|6.||Costs and Expenses|
Each Party shall be responsible for its own tax, legal and other costs and expenses in connection with the negotiation, preparation, execution and implementation of this Agreement.
|7.||Governing Law and Dispute Resolution|
|7.1||The execution, validity, interpretation, performance, amendment and termination of this Agreement and the resolution of any dispute arising therefrom shall be governed by the PRC laws.|
|7.2||Any dispute arising from or in connection with this Agreement shall be resolved through negotiations by the Parties and, if the negotiations fail to resolve it within 30 days, by submission by any of the Parties to arbitration by China International Economic and Trade Arbitration Commission (the “CIETAC”) in accordance its arbitration rules then in effect in Shanghai. The arbitrary award shall be final and binding upon each of the Parties.|
|7.3||If any dispute arising from interpretation or performance of this Agreement occurs or is under arbitration, other than the matter involved in such dispute, the Parties shall continue to perform their respective rights and obligations under this Agreement.|
This Agreement constitutes the entire agreement and understanding between the Parties in respect of the subject matter of this Agreement. This Agreement supersedes in all respects all previous agreements, representations, warranties and undertakings made by the Parties with respect to the subject matter hereof, whether such be written or oral.
Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of any amendment, by the Parties, or in the case of a waiver, by the Party against whom the waiver is to be effective.
Each provision contained in each clause and subclause will be enforceable independently of each of the others, and its validity will not be affected if any of the others is invalid. If any of those provisions is void but would be valid if some part of the provision were deleted, the provision in question will apply with such modification as may be necessary to make it valid.
|11.||Waiver and other rights|
|11.1||A waiver of any term, provision or condition of this Agreement shall be effective only if given in writing and signed by the waiving Party and then only in the instance and for the purposes for which it is given.|
|11.2||No failure or delay on the part of any Party in exercising any right, power or privilege under this Agreement shall operate as a waiver of it, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of it or the exercise of any other right, power or privilege.|
This Agreement shall be executed in five (5) duplicate originals in English. Each Party has received one (1) duplicate original, and all originals shall be equally valid.
[REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the Parties has, or caused his/her authorized representative to have, signed this VIE Termination Agreement on the date first written above.
Party A’s Name List
|Name/姓名||ID Card No./身份证号码|
Party B’s Information
|Company Name/公司名称:|| |
Greenpower environment technology (shanghai) co., Ltd.
|Business Certificate Numbers/统一社会信用代码:||91310000667754775U|
|Date of Incorporation/注册日期:||2007-10-29|
|Registered Address/注册地址:|| |
Suite 1515, No. 888, Changshou Road, Putuo District, Shanghai
|Registered Capital/注册资本:||8,000,000 USD|
|Legal Representative/法定代表人:||WU Jianhua/吴建华|
Party C’s Information
|Company Name/公司名称:|| |
Wuxi Huayang Heavy Industries Co., Ltd.
*The company had used the following name:
Wuxi Huayang Electrical Power Equipment Co., Ltd.
|Business Certificate Numbers/统一社会信用代码:||91320206761549081B|
|Date of Incorporation/注册日期:||2004-05-25|
|Registered Address/注册地址:|| |
No. 9 Yan Yu Zhong Road, Qianzhou Town, Wuxi, China
|Registered Capital/注册资本:||50,800,000 RMB|
|Shareholders/股东:||TANG Lihua/唐丽华(45.57%)、WU Jianhua/吴建华(45.57%)、WU Haoyang/吴昊扬(8.86%)|
|Legal Representative/法定代表人:||TANG Lihua/唐丽华|